By Hanaa Hakiki and Vera Wriedt, European Center for Constitutional and Human Rights
“Foreigners detected on the territorial border line of Ceuta and Melilla while trying to overcome the border elements to cross irregularly may be rejected in order to prevent their illegal entry into Spain” (Law 4/2015). This is the wording of the special legal system (‘régimen especial’) authorizing indiscriminate automatic expulsions from the Spanish enclaves of Ceuta and Melilla back to Morocco. The Spanish authorities have conducted such expulsions for over a decade and without any distinctions. This systematic push-back policy includes the summary return of unaccompanied minors without access to any procedure to safeguard their fundamental rights. At Europe’s borders, unaccompanied minors encounter institutionalized violence instead of protection.
The complaint brought by D.D. (name abbreviated for anonymity) was the first individual submission against push-backs under the communications procedure of the UN Committee on the Rights of the Child. D.D. was pushed back from Melilla to Morocco as an unaccompanied minor in December 2014. After climbing down the fence and stepping on Spanish ground, he was immediately apprehended by the Spanish Guardia Civil, handcuffed and returned to Morocco through doors in the fence structure. He was deported without any possibility to explain his personal circumstances and protection needs, without being asked a single question about his age or name, and without being able to come into contact with any lawyer or translator.
The Committee’s decision in favour of D.D. in February 2019 sets a precedent that strongly condemns Spain’s push-back policy. The Committee found that the lack of any risk assessment prior to the minor’s expulsion violated both his rights under article 3 (best interest of the child) and 37 (prohibition of torture, inhuman or degrading treatment) of the Convention on the Rights of the Child (CRC). Furthermore, the lack of any procedure to identify D.D. as an unaccompanied child constituted treatment prohibited by articles 3 and 20 (protection of unaccompanied minors). Finally, the Committee emphasized that the way the return operation was conducted also violated article 37 of the Convention. Thereby, this decision clearly affirms the rights of unaccompanied minors at Europe’s borders and beyond.
Notably, Spain’s strategy in defending this case resembled the claims made in other pending cases challenging the summary expulsions from Ceuta and Melilla. Legally, Spain tried to argue that the claimant’s case was about asylum, a right not covered by the CRC. Factually, Spain argued that there was no definite evidence proving that the person being summarily expelled was in fact the complainant, thus prima facie questioning his credibility. The Committee rejected Spain’s misleading arguments and endorsed those made by the complainant.
The decision confirms that the case was not about asylum, but about rights guaranteed under the CRC. On the requirement to exhaust domestic remedies before filing an individual communication, the Committee aligned its jurisprudence to that of other UN treaty bodies, confirming that in cases of imminent returns with no procedure, there were no domestic remedies available that could be exhausted. In assessing the evidence, the Committee highlighted the imbalance between an undocumented minor summarily returned and the state authorities, concluding that the burden of proof could not fall entirely on the applicant. The Committee also dismissed Spain’s submissions regarding the alleged possibility to apply for a visa or ask for asylum in transit countries or the Spanish border posts.
The decision took place in light of D.D.’s past experiences of ill-treatment by Moroccan forces as well as the general situation of extreme violence perpetrated against migrants in Morocco’s border zones – a violence that EU institutions and states seek to outsource and make invisible.
The significance of the decision on D.D. v Spain goes not only beyond the individual case, but also beyond the Spanish-Moroccan border. It constitutes a clear condemnation of states’ practice to create zones of exception at the border where basic rights are suspended. Spain has served as a laboratory for such restrictive border policies, with other countries such as Hungary, Poland, Croatia, Lithuania and France adopting similar practices and politico-legal justifications.
In particular, Spain argued that the Guardia Civil’s actions constitute an exercise of their legitimate right to reject irregular border crossings, not an unlawful return. Other European countries likewise refer to the Schengen Border Code to justify their unlawful actions. However, the Schengen Border Code does not allow summary expulsions and limits border control to actions in compliance with the state’s obligations under international law.
A further argument used by Spain was that the complainant never entered Spanish territory de jure, and therefore did not come under Spanish jurisdiction. In response, the Committee reiterated that D.D. was under the effective control of the Spanish authorities when he was apprehended, handcuffed and returned. This serves as a reminder that states exercise jurisdiction at the border, no matter whether the action is called “rejection”, “return”, expulsion” or “deportation”. The applicable human rights conventions cannot be unilaterally and arbitrarily curtailed at the border.
Spain now needs to amend law 4/2015 and its ‘special regime for Ceuta and Melilla’ in order to end the practice of indiscriminate automatic expulsions at the border, as demanded in the Committee’s decision. After receiving the decision, D.D. proclaimed: “This decision of the UN Committee makes me happy. I want the whole world to know about it and that these violations never happen again.” Implementing the Committee’s demands is a crucial step in this direction.
Op-ed: ECRE publishes op-eds by commentators with relevant experience and expertise in the field who want to contribute to the debate on refugee rights in Europe. The views expressed are those of the author and does not necessarily reflect ECRE positions.
Photo: (CC) José Saéz, July 2012