Spain accused of failing to reopen ‘genuine and effective access to asylum’ at enclaves since COVID

Spain has failed to reopen safe and legal routes for people seeking asylum in its North African enclaves of Ceuta and Melilla since the COVID-19 pandemic, NGOs told Euronews. 

Migrant rights NGOs have accused Spanish authorities of carrying out an “unlawful” and “discriminatory” policy of pushbacks and expulsions against “Black” asylum seekers of Sub-Saharan origin at the EU’s external borders of Ceuta and Melilla in Northern Morocco since the declaration of a state of emergency in March 2020.

“Spanish authorities have shut the border without giving any sort of asylum access,” Mar Soriano, legal adviser for the Melilla-based Solidary Wheels NGO, told Euronews. “It was already limited for Black people who face disproportionate discrimination from Moroccan border guards who won’t let them access the border.”

Soriano’s NGO has, alongside the International Organization for Migration (IOM), the UN Refugee Agency (UNHCR), Human Rights Watch and Amnesty International, repeatedly urged Spanish and Moroccan authorities to restore “genuine” and “effective” access to asylum through “safer” and “alternative” pathways to reduce the use of dangerous journeys and the risk of tragic events from occurring.

But these calls have fallen on deaf ears, according to the latest report from the Council of Europe’s Commissioner for Human Rights.

“A combination of several elements in Spain’s current approach to migration at its borders with Morocco has led to a situation where no genuine and effective access to safe and legal means of entry and asylum exists,” Dunja Mijatović concluded last April.

The Commissioner and her predecessor had already raised concerns in 2015, 2018 and 2022 about pushbacks carried out by Moroccan and Spanish border guards to “keep [asylum seekers] away from” the borders of Ceuta and Melilla.

“This leaves certain groups of asylum seekers with no other effective option to enter the borders to seek protection with the relevant authorities other than by swimming or jumping the fence, risking one’s life,” the Commissioner added.

Ceuta and Melilla’s ‘special regime’ and Covid-era ban

Spain’s Ceuta and Melilla enclaves have been the scenes of many pushbacks and violent police responses since 2014.

In early February 2014, at least 15 Sub-Saharan refugees and asylum seekers trying to swim around a seawall dividing Ceuta and Morocco drowned off the coast of Ceuta after local police opened fire with large rubber bullets in a “tragic” case that remains unprobed, according to Amnesty International.

Later that same month, more than 200 people successfully reached Spanish territory after storming the massive barrier fence that separates Ceuta from Morocco.

In August of the same year, a group of 23 people was summarily expelled to Morocco “without a chance to apply for asylum” or to “appeal the expulsion” after climbing over Melilla’s border fence, Amnesty International reported.

Pushbacks, expulsions and illegal crossings gradually grew in numbers every year until the summer of 2021 when the rate of migrant crossings in Ceuta and Melilla reached an all-time high at the height of a diplomatic row between the Moroccan monarchy and the Spanish government.

In retaliation, Moroccan security troops loosened border checks, allowing the passage of more than 8,000 migrants from Morocco to the Spanish cities, most of whom made the journey by swimming. At least half of them were “immediately expelled” in pushbacks in line with Spain’s migration deals with Morocco.

The drive in pushbacks in Ceuta and Melilla in the 2010s was propelled by amendments to Spain’s Aliens Act in 2015 which granted the enclaves a “special regime”, allowing border guards to effectively push back non-nationals trying to irregularly cross border controls in the name of “public safety”, said Soriano.

“Asylum processing is deliberately opaque and secretive to complicate judicial cases. It also means there are no official data on pushbacks publicly available,” she told Euronews.

The issue has been compounded by Spain and Morocco’s failure to lift the COVID-era ban on new migrant crossings despite promises to reopen the land borders with Ceuta and Melilla, said Elena Muñoz, Legal State Coordinator at the Spanish Commission for Refugee Aid (CEAR).

“[Spanish authorities] have been dragging along a pandemic situation that has not yet been reversed. In any case, even if these border crossings are reopened, they have never been open to sub-Saharan Africans,” she told Euronews.

Despite multiple calls for legislative reforms, Spanish lawmakers have failed to tackle pressing migration issues like pushback policies and the right to apply for asylum.

Instead, Spain and Morocco announced in February 2023 they would “intensify” their cooperation in “the fight against irregular migration” and “border control.”

Spain and Morocco’s ‘flawed’ and ‘insufficient’ reports

Both countries faced widespread condemnation after the June 2022 “Melilla incident” in which 470 migrants were returned to Morocco after around 2,000 migrants stormed the triple border fences that separate the Spanish enclave from Morocco.

People attempting to cross into Melilla through the border checkpoint faced the “excessive” use of “unlawful” force by Spanish and Moroccan police and border guards who launched tear gas, fired rubber bullets, and threw rocks at asylum seekers, resulting in at least 32 deaths and 77 disappearances, according to UN experts.

Spain and Morocco vehemently denied responsibility and traded blame for the deaths and disappearances of migrants, arguing the Melilla incident was perpetrated on the other country’s soil.

Following intense popular, media and diplomatic pressure, both countries launched investigations into police violence and migrants handling at the border between Morocco and Melilla.

But the investigations fell short of delivering justice and shining a light on the events, said independent observers.

Human Rights Watch called out Spain and Morocco for “exonerating” their security forces following “flawed” and “insufficient” investigations into police violence at the Melilla enclave border. In a scathing statement, Amnesty International accused the two countries of a “cover-up” and of failing to properly investigate the events.

The tragedy has marked a “turning point” in migration flows across Northern Africa, said Soriano, whose NGO has hardly seen anyone entering the enclave since the Melilla incident.

“In the past year, no one has applied for asylum in Melilla. In Ceuta, however, there have been crossings but they were usually followed by expulsions,” she added.

‘A model for other EU states’

To justify their approach to migration policy, Spanish authorities have repeatedly referred to a controversial 2020 ruling from the European Court of Human Rights (ECHR). The Strasbourg-based international court of the Council of Europe found that Spain was not in violation of the convention, as the two asylum seekers involved in the case “had not made use of the existing official entry procedures for that purpose.”

The decision sparked charges that the Strasbourg court had “given the green light” to pushbacks at Europe’s borders and made Spain’s “longstanding practice” of pushbacks “a model for other states along the EU’s external borders.”

According to the Flemish Coalition for International Solidarity, known as 11.11.11, more than 200,000 illegal pushbacks were carried out at the EU’s external borders last year.

The EU is now shifting its focus from deterrence to border externalisation, according to Delphine Rodrik, a legal adviser for the European Center for Constitutional and Human Rights (ECCHR). By striking migration deals with Tunisia, Morocco, Libya, Algeria and Egypt, the European Commission led by Ursula von der Leyen is funding North African countries to handle pushbacks and expulsions, she said.

“On the broader level, it’s very reflective of this larger European policy of shutting borders, of erecting walls and keeping people out at all costs,” Rodrik told Euronews.

Spain’s caretaker Prime Minister Pedro Sánchez said he believes the European Union can reach an EU-wide immigration pact during his country’s tenure of the bloc’s rotating presidency.

He said that “Spain has a particular interest in this issue, as do other first-entry countries”, adding that during the six-month presidency he will seek to close differences between European countries.

Migrants rights NGOs are unanimous in saying the upcoming migration pact will worsen the plight of sub-Saharan asylum seekers at Europe’s doors.

“In conclusion, the [pact’s] aim is to legalise what is now illegal, that is to say, to facilitate and legalise even more the pushbacks and expulsions that are already being carried out, but which now have to be done secretly, behind the scenes and without much noise because there are obligations at European and international level that do not allow it,” said Soriano.

A spokesperson for Spain’s Interior Ministry referred to the website of the Asylum and Refugee Office (OAR), which offers “complete information on its regulations, procedures and functioning, always in compliance with national and international legislation on international protection and with absolute respect for human rights.”