Spain: case 2896-2015: Constitutional Court deems special regime at its Moroccan border constitutional

Thursday, November 19, 2020

On 19 November 2020, the Spanish Constitutional Court rejected a constitutional complaint regarding the ‘hot returns’ from Ceuta and Melilla. 

In 2015, over a hundred members of the Spanish parliament lodged a constitutional complaint (‘recurso de inconstitutionalidad’) against, inter alia, the first final Article of the Organic Law 4/2015 on the protection of the citizens’ security, which incorporates a specific asylum procedures regime for Ceuta and Melilla, the Spanish enclaves in Morocco. The applicants claimed that the contested Article is contrary to, inter aliaArts. 15, 24 and 106 of the Spanish Constitution because it backs a singular administrative act consisting of the massive or collective and undifferentiated return, without administrative procedure, of TCNs, including minors, intercepted at the border of Ceuta or Melilla and outside of the posts that authorize their entry into Spanish territory. 

The Court underlined that TCNs, including the ones who unlawfully reside on Spanish territory, also derive rights from the Constitution. In order to benefit from these rights, the TCNs, inter alia, have to be subject to the control that the State exercises through one of its agents (see Hirsi Jaama), which is the case when the Spanish Security Forces and Bodies (‘Fuerzas y Cuerpos de Seguridad españoles’) undertake the ‘rejections’. 

Thereafter, the Court explained that the ‘rejections’ constitute a governmental measure that counters the disturbance of the legal order and which constitute a measure of migratory flow control. Furthermore, it considered that the establishment of a specific regime for Ceuta and Melilla was justified because of their unique geographical location. In this context, the Court reiterated that the ECtHR had considered these unique features in N.D. and N.T. (§201 and 210) and had held that States may refuse entrance to the territory to persons who have failed, without cogent reasons, to use the genuine and effective means of legal entry and chose to cross the border at a different location, especially when they are taking advantage of large numbers and the use of force. 

Moreover, the Spanish Constitutional Court reiterated that the Spanish Constitution does not guarantee the right of entry into Spain, but rather guarantees the right to submit to the examination of the Courts, the legality of an alleged failure by the administration to comply with its legal obligations. In this regard, the Court finds that, while the ‘rejections’ at the border are material actions, they can always be contested in the Courts and therefore cannot, in abstracto, be considered unconstitutional. Following that same line of reasoning, it underlined that the contested Article in itself refers to the respect of international obligations Spain is bound by, and, therefore, inter alia, guarantees the protection of particularly vulnerable categories of people, including those who appear to be minors.

Finally, the Court assessed the special regime in light of the principle of non-refoulement, as guaranteed by the ECHR. First, it reiterated that Spanish asylum law contains specific border procedures that regulate the submission of applications for international protection at the border posts. In this context, it again refers to the findings in N.D. and N.T., i.e. that even border states must provide real and effective legal entry procedures so that everyone, on the basis of Article 3 ECHR, can submit an application for international protection. If these legal pathways exist, border countries may refuse entry to foreigners who did not try to use these but tried to cross the border at a place where they were not authorized to do so. The Court stressed that these legal pathways, in abstracto, exist at the border posts of Ceuta and Melilla, and, therefore, concluded that the contested Article is not unconstitutional.  

Based on an unofficial translation by the EWLU Team.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

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