'Hot expulsions' of migrants caught at Spain's border deemed legal by ECHR and Spanish Constitutional Court

The Spanish Constitutional Court ruled last week that forcing migrants straight back to Morocco after they have forced their passage through border fences surrounding Ceuta and Melilla is constitutionally legal.

This practice of "hot expulsions", also called "hot returns", first became official and legal with the Public Safety Law enacted by the center-right Spanish government of Mariano Rajoy and its People’s Party (PP) in 2015. The law was then heavily criticized and brought to the Constitutional Court by NGOs and a group of socialist MPs headed by today’s Prime Minister Pedro Sٞánchez.

In 2018, Sánchez managed to win a vote of no-confidence and replace Mariano Rajoy at the head of a minority government formed by the Socialist Party (PSOE) with support from the far-left Podemos party and its communist allies (which have now become PSOE’s junior partner under the brand Unidas Podemos) as well as from several regional autonomist and separatist parties.

At that time, the European Court of Human Rights (ECHR) had just issued a ruling making Spain’s hot expulsions illegal. Among other migrant-friendly declarations, Sánchez promised that Spain would withdraw its appeal from the ECHR ruling and put an end to the practice of rejection of migrants at the border.

In 2018, Spain faced a steep rise of illegal arrivals at its land border with Morocco and through the Straight of Gibraltar as a consequence of having welcomed hundreds of immigrants on board the Aquarius after Matteo Salvini refused access to the ship at an Italian port. While encouraging incoming migrants to continue their trip further north — mainly to France, Germany, and the UK — Sánchez then discreetly reverted to the immigration policies of Mariano Rajoy. Among other things, his government did appeal the ECHR ruling against hot expulsions of immigrants caught just after they have passed the border fence.

Last February, the Grand Chamber of the European Court of Human Rights reversed the earlier ruling and decided unanimously that those expulsions are legal after all, as those migrants have “put themselves in an illegal situation by trying to enter Spanish territory in an unauthorized way.” In that specific case brought forward to the ECHR by two illegal immigrants from Subsaharan Africa, the Grand Chamber also mentioned that those migrants had used force and the effect of a mass group to cross the border. The ECHR ruling, which is final, means that Spain does not have to give illegal immigrants caught at the border the possibility to file for asylum and that they can be forced back to Morocco.

Such a judgment for Spain was in line with a ruling from November 2019 concerning Hungary. The Grand Chamber of the ECHR then refused to consider Hungarian so-called "transit zones" at the border as detention centers since asylum applicants detained there were free to leave the center if they decided to go back to Serbia. However, the EU’s own Court of Justice ruled otherwise, when it decided last May that the Röszke transit zone at the border with Serbia violated EU law.

A complaint had been filed by the European Commission, which has also consistently criticized in the past the practice of hot expulsions by Hungarian authorities while remaining curiously silent over the same method enforced by Spanish authorities. Hungary having now closed its transit zones because of the ECJ ruling, and it will only accept asylum applications filed at its embassies outside of the EU. The European Commission has now opened new infringement proceedings against Hungary as it considers that this move is also against EU law.

Because of the February ruling of the ECHR deeming hot expulsions legal, a similar ruling by the Spanish Constitutional Court was foreseeable, particularly after the resignation in October of one of its judges, who favored declaring those expulsions illegal in the light of the Spanish Constitution. His resignation came after the Supreme Court had given the green light to prosecute him on domestic violence charges. 

As per last week’s ruling, expulsions at the border are legal under Spain’s Constitution as long as they are enforced following Spain’s international obligations. Hot returns are allowed in the case of individuals caught just after they have crossed the border and of whole groups in case of mass attempts to force the passage through border fences or border checkpoints.

Meanwhile, as Sánchez promised in 2018, the Spanish government is currently removing razor wire at the top of its border fences around its Northern African enclaves. According to the opposition PP and Vox, his government’s communication policy on immigration is a major cause of this year’s 10-fold increase in arrivals to the Canary Islands. Such a phenomenon had not been seen since 2006, after Zapatero’s socialist government had conducted mass legalization of immigrants. Migrants sailing to the Canary Islands risk their lives and cannot be easily subjected to hot expulsions, and that route has now become more popular than the one through the land border at Ceuta i Melilla.

On Wednesday, Sánchez hosted his Italian counterpart, Giuseppe Conte, at Palma de Mallorca, and both leaders called for more European solidarity on immigration. After the departure of Salvini’s League and the forming of a fully left-wing coalition government in September 2019, Italy reopened its ports to NGO boats, and last May, Conte’s second government even granted hundreds of illegal immigrants the right to stay. As a consequence, Italy has also been suffering a sharp increase in unwanted arrivals this year.

Source: Remix News