27 March 2015
Op-Ed by Estrella Galán, Secretary General of CEAR, on the passing through Parliament of the Law on Public Security
On October 22, 2014 we woke up to the news that an amendment to the Law on Public Security had been presented by the Popular Party, which proposed a reform of the Spanish Immigration Law so as to provide a legal basis for illegal push backs which have taken place for many years at the border of Ceuta and Melilla.
Despite calls for its withdrawal by human rights organisations and international organisations, such as the Council of Europe and the United Nations, the amendment was included in the new Law on Public Security and approved by the Spanish Congress.
“To reject people at the border is a serious violation of the obligation to provide access to the international protection procedure and to respect the principle of non-refoulement.”
The approved text states that those who attempt to cross the border of Ceuta and Melilla without authorisation “will be rejected in order to prevent illegal immigration into Spain.” Consequently, the concept of “rejection at the border” is codified into law, provided for in an amendment which seeks to legalise summary returns on the borders of Ceuta and Melilla. This concept of rejection at the border does not provide for any of the procedural safeguards laid down in Articles 20 and 22 of the Spanish Immigration Law (i.e. the right to an effective remedy, the right to appeal against administrative acts or the right to a lawyer and interpreter) and can violate the principle of non-refoulement (Article 57.6). Thus, the “rejection at the border” without any guarantees or proceedings poses a serious threat to the right of asylum as it justifies the immediate return of people who come to Ceuta and Melilla without first identifying people in need of international protection and of other vulnerable people. Furthermore, these people are returned to Morocco, a country that does not guarantee respect for their human rights nor access to international protection. This can result in a serious breach of the principle of non-refoulement, which dictates that no state may expel or return a person to a country where their lives and physical integrity would be put at risk.
As stated by the Council of Europe Commissioner for Human Rights, Nils Muiznieks, the legalisation of illegal returning people might mean the “beginning of the end for the common asylum system”. No European country has regulated these illegal practices, which are more and more frequent in countries such as Greece and Bulgaria. To reject people at the border is a serious violation of the obligation to provide access to the international protection procedure and to respect the principle of non-refoulement. This means a violation of not only the Spanish legal system but also the European regulations and the international treaties ratified by Spain.
“It is clearly unacceptable to apply a special border regime in Ceuta and Melilla, outside of the guarantees provided by Spanish, European and international laws.”
The amendment, included in the new Law on Public Security, deprives people in need of international protection of access to the right of asylum, protected in Article 13.4 of the Spanish Constitution, and violates the principles of legality, of hierarchy, of effective judicial protection and equality enshrined in that document. It also opposes the provisions of the Spanish regulation on immigration and asylum, of the European Convention on Human Rights, of the Charter of Fundamental Rights of the European Union, of the Return Directive, of the Schengen Borders Code, of the Geneva Convention, of International Covenant on Civil and Political Rights and of the UN Convention against Torture. It is clearly unacceptable to apply a special border regime in Ceuta and Melilla outside of the guarantees provided by Spanish, European and international laws.
In addition, the opening of new asylum offices in Ceuta and Melilla, should not be used as an excuse to legitimise the illegal return of people who enter through non-authorised places via the Ceuta and Melilla fences. To this day, people of sub-Saharan origin are forced to come to Spain through these fences as they have to face numerous obstacles to reach the offices. It is important to remember that the refugee status is not determined by the way a person accessed the territory of a State. The Asylum Law expressly provides in Article 17.2 that “illegal entry into Spanish territory may not be penalised when it has been done by someone who is eligible to become a beneficiary of international protection”. Therefore, both those who enter Spain through authorised places and then reach the asylum offices and those who do it by jumping the fence or by swimming have the right to seek asylum and the authorities have the duty to ensure this right.
“The solution is not to shield the borders and to provide legal cover for illegal practices, such as push backs, but to address the causes of forced displacement and provide legal channels to enable refugees to obtain protection in safe countries.”
The response to the situation in the Spanish and European southern border should be based on a full commitment to the respect of human rights of all those who are forced to leave their homes. The solution is not to shield the borders and to provide a legal basis for illegal practices, such as push backs, but to address the causes of forced displacement and provide legal channels to enable refugees to obtain protection in safe countries.