1 Keeping up appearances
Dubious legality and migration control at the peripheral borders of Europe. The cases of Ceuta and Melilla1
1.1 Introduction
The analysis of political and police practices of border and internal control in Spain over the past two decades reveals that the Spanish stateâs determination to control irregular migration has completely superseded its obligation to provide protection. Various national and international reports have repeatedly highlighted how this approach systematically infringes on the basic rights of migrants and asylum seekers who have attempted to enter or settle in Spain (AsociaciĂłn pro-derechos humanos de AndalucĂa 2018; Defensor del Pueblo 2016; AmnistĂa Internacional 2014; MĂ©decins sans FrontiĂšres 2013; ComisiĂłn Española de Ayuda al Refugiado 2017). The violation of the rights of immigrants is even more intense at the peripheral Spanish territories in North Africa, Ceuta and Melilla (AmnistĂa Internacional 2016), which have become âlimboscapesâ2 (Ferrer-Gallardo & Albet-Mas 2016) operating under a permanent âstate of exceptionâ (Agamben 1998; Ferrer-Gallardo & Gabrielli 2018).
The systematic violation of the basic rights of immigrants at border areas is causing increasing concern among international and European institutions (see, for instance, European Union Agency for Fundamental Rights 2013). In order to ensure that these rights are respected, a growing number of international institutions are highlighting the need for the inclusion of complaint mechanisms in the implementation of proactive and reactive measures of migration control (Barbero & Illamola 2018).3 In a recent report, Carrera and Stefan also mentioned the disconnection observed in a number of European countries between the formal acknowledgement of migrant and refugee rights and the real implementation of effective access to legal protection (Carrera & Stefan 2018; see also Carrera & Stefan, this volume). Studies have found evidence that in Spain there are legal gaps and practical difficulties that hinder filing complaints about rights violations in the expulsion of migrants (Barbero & Illamola 2018). The situation is even more extreme in Ceuta and Melilla, where preventative and repressive approaches to border and internal control practices have been implemented that are based almost entirely, with just a few exceptions, on containment (LĂłpez-Sala & Godenau 2016).
Over the past two decades, experts have described the autonomous Spanish cities Ceuta and Melilla as enclaves for migrations and scenarios in which the most aggressive European control policies are applied (Ferrer-Gallardo 2008; LĂłpez-Sala 2015b). The cities have become icons of Fortress Europe (van Houtum 2010) due to geographic and political factors that make them distinctive areas of the Spanish border system. First, they are isolated and peripheral cities located in Africa. Second, they have a âdual border,â resulting from their special status within the Schengen agreement (Ferrer 2008; LĂłpez-Sala 2015a). In terms of controlling irregular immigration, their political status requires: a) controlling both their outer border with Morocco (8 and 12 km, respectively) and the maritime border that lies between them and the Spanish mainland; and b) by extension, the specific application of intra-territorial measures to control mobility of third-country nationals who wish to travel from these cities to the mainland. This has transformed them into areas in which legally regulated forms of limiting mobility and spatial confinement are applied. Finally, both cities have idiosyncratic mobility patterns, because they form part of a transnational labour market that includes daily back and forth movements of salespeople and workers who travel to the two cities from the surrounding regions of Morocco (Ferrer-Gallardo & Gabrielli 2018).4
How are the basic rights of migrants and asylum seekers violated when they attempt to enter Europe through these territories? What political, legal, and police practices give rise to these violations and make it impossible for immigrants to access legal recourse and complaint mechanisms? What strategies have been developed by the migrants and associations that defend human rights to make up for this deficit?
This chapter examines the specific conditions and various aspects of migration control in these peripheral territories, how they lead to the violation of the rights of migrants and asylum seekers, and how they limit, constrict, and hinder effectively filing complaints. We will present a transversal analysis of four analytical elements that vividly summarises the predominance of control over the respect for basic rights: the practices that block entrance into the territory; the restrictions and obstacles put in place to hinder access to international protection; the restriction of movement of asylum seekers; and, finally, and more succinctly, the lack of protection for particularly vulnerable immigrants.
The text will argue that the measures applied to control migration flows in Ceuta and Melilla flagrantly violate the fundamental rights of migrants and that the conditions they impose make it practically impossible to file grievances or to hold authorities accountable for those violations. It also highlights how the principle of control has taken precedence over legality in migration policies and police actions. Specifically, over the past decade a series of legal reforms, administrative practices, and operational measures have been carried out that restrict migration in a way that violates Spanish legislation and international law, transforming these cities into black spots where the law is suspended.
1.2 The violation of the right to access the territory. practices and controversies regarding hot returns
Spainâs collaboration with Morocco to externalise its migration policy has had a major impact on the preventative, spatial, and physical control of migrants and asylum seekers who attempt to enter Ceuta and Melilla through its border perimeters. Quickly blocking access is part of a tactic, defined by the police as an âanti-intrusion strategy,â which combines police action and physical barriers.5 However, even if immigrants or asylum seekers manage to pass through the border areas and enter Spanish territory, their basic rights will continue to be violated. The most obvious example has been, without a doubt, a reactive strategy in which migrants are immediately expulsed to Moroccan territory, known as âhot returns.â
1.2.1 From denial to dubious legality
Ever since the perimeter border structures were built around Ceuta and Melilla in the second half of the 1990s6 there have been signs that migrants are being irregularly returned to Moroccan territory by Spanish authorities. During the first few years of the past decade, social organisations working in theses autonomous cities and local media have documented multiple cases in which sub-Saharan immigrants were returned to Morocco without due process. The increased attempts to gain entry in 2005 brought this issue into the public debate and the expression âhot returnsâ was coined.7 In November of that year, the Spanish Ombudsman testified before the Congress of Deputies that these kinds of returns were taking place, including to migrants who had been acknowledged as refugees by the UN Refugee Agency (UNHCR), emphasising that this violated Spanish legislation on immigration and asylum.8 Despite the complaints lodged by international organisations, which pointed out the use of heavy police violence in these procedures (Amnesty International 2006), these irregular practices were repeatedly denied by government administrations of both major parties until well within the current decade. One of the ways the Spanish government has dealt with these accusations has been to use physical obstruction or the threat of sanctions to impede or make it impossible for activists or journalists to visit the areas around the border fences (BenĂtez, SolĂs & ServĂĄn 2015).
In 2013, another spike in the number of collective attempts to cross the perimeter borders reopened the public debate,9 but the turning point in the political debate on these practices came in 2014 (GarcĂ©s-Mascareñas 2016; LĂłpez-Sala 2015a). The tragedy at El Tarajal (Ceuta) in February, 2014, and the publication of various videos recorded by the NGO Prodein that showed these hot returns taking place in Melilla were heavily criticised, not only for the violence that was employed by Spanish security forces but also because there was finally video evidence of what had been an open secret, despite the continual denials made by different governments.10 These events led various social organisations to present a lawsuit leading to the indictment of the head of the Civil Guard in Melilla. In response to the evidence of these hot returns, the Spanish government and the Ministry of the Interior11 argued that these actions were not irregular or illegal because they were not returns âper seâ but rather âborder rejections.â12
In the second half of 2014, the ruling Popular Party used its parliamentary majority to try to give legal coverage to these returns. In a controversial move, it urgently included an additional provision that introduced a special regime for Ceuta and Melilla within the reform of the Public Safety Law that was approved in December of that year. According to this reform, â[F]oreigners detected on the boundary line between Ceuta and Melilla attempting an unauthorised crossing of the border in a clandestine, flagrant or violent way shall be rejected in order to prevent their illegal entry into Spain.â13 The social and political backlash to this attempt to legalise these returns was unanimous. Moreover, legal reports dictated that the reform violated national and European legislation (CuadrĂłn 2018; FernĂĄndez-PĂ©rez 2014; GonzĂĄlez-GarcĂa 2014; MartĂnez-Escamilla et al. 2015). The reform was also rejected by every opposition political group and by highly diverse social and legal organisations, among them the Episcopal Commission on Migrations, the Immigration subcommittee of the General Council of Spanish Lawyers, Judges for Democracy, and the Progressive Union of Prosecutors. In October 2014, more than 20 social and legal organisations presented a letter14 to the Special Rapporteur on the human rights of migrants, François CrĂ©peau, asking for his support to paralyze this legal reform.15 The European Commissioner for Migration, Dimitris Avramopoulos, indicated that the European Commission would take measures against Spain if it were confirmed that the reform violated European legislation.16 In January 2015, the Commissioner for Human Rights of the Council of Europe, Nils Muiznieks, stated that the reform contravened international law and put the asylum system at risk.17
Yet despite this broad national and European social and political contestation, the Spanish government remained steadfast in these measures, using every resource at their disposal to maintain them. They also constructed a fear-based narrative of chaos and crisis, with arguments such as that migrants were growing increasingly violent in their attempts to storm the border or that there was an enormous âpoolâ of irregular immigrants waiting in Morocco to try and enter European territory.
1.2.2 From political tricks to illegal practices: the tragedy at El Tarajal, the concept of âoperational controlâ at the border and wet pushbacks
On the morning of 6 February 2014, several dozen immigrants tried to swim 30 metres around the border breakwater that separates Spain and Morocco to El Tarajal, a beach in Ceuta. While they were still in the water, a unit of Spanish Civil Guards tried to stop them from reaching the beach by using rubber bullets and tear gas. Fifteen immigrants died in the attempt. The 23 immigrants who managed to reach the beach were immediately returned to Moroccan authorities. They later reported the use of anti-riot material and accused the Civil Guard of not lending aid to the victims who died from drowning and of employing violence to stop the others from reaching the beach. This is one of the darkest episodes of the recent history of migration control in Spain and even today, five years after the tragedy, what exactly happened that morning in February is still unknown. At first, both the Commander of the Civil Guard, and the Government Delegate in Ceuta, denied the use of anti-riot material, something that was finally admitted by the Minister of the Interior in his appearance before the Congress of Deputies at the end of February 2014, when he stated that they had made ârational use of legal means to deter these individuals from reaching the Spanish coastâ.18 His testimony revealed the political narrative and tricks used to justify and legitimise the use of hot returns before the general public, referring to it as âoperational controlâ at the border.19 According to this concept, the section between the border fences (there are two in Ce...
