Spain cleared by European Court of Human Rights over removal of migrants at border fence

Spain committed no violation when it expelled a group of migrants trying to force their way onto EU territory by scaling fences in a North African enclave, the European Court of Human Rights ruled Thursday.

Spain cleared by European Court of Human Rights over removal of migrants at border fence
File photo of police officer scaling fence climbed by migrants at Melilla border. Photo: AFP

The migrants had placed themselves in an “unlawful situation” by not seeking refuge through the correct channels, which means Spain could not be expected to offer them any protections, it said.

Two migrants, one from Mali and the other from Ivory Coast, approached the court after they sought to cross into Europe with a large group of others in the Spanish enclave of Melilla, which is surrounded by Moroccan territory.

The Spanish authorities had erected a triple-layer fence along the 13-kilometre (eight-mile) border.

In August 2014, hundreds of migrants charged the border, with about 100 making it over the first fence, and about 75 reaching the inner fence. A few landed on Spanish soil, where they were met by civil guard members who escorted them back to Moroccan territory.   

They did not undergo an identification procedure nor were they asked to explain their personal circumstances, according to the court ruling.    

“Today's judgement is very disappointing,' said Amnesty international spokeswoman Anna Shea.

“These two men were marched back to Morocco as soon as they entered Spain, with no chance to explain their circumstances, no chance to request asylum, and no chance to appeal their expulsion.

“That the court has today decided that Spain was within its rights to do this, because the men entered the country irregularly, is truly a blow for refugees and migrant rights,” she added.

'Placed themselves in jeopardy'

A spokesperson for Spain's Interior Ministry said the government would “respect” the decision.

In an initial judgment in 2017, the court held that Spain had violated a European protocol on the prohibition of collective expulsion, as well as the migrants' right to an effective remedy.

Spain challenged these findings to the court's Grand Chamber, a sort of appeals tribunal.

On Thursday, the chamber ruled that Spanish law had afforded the migrants “several possible means of seeking admission to the national territory”.   

They could have applied for visas or sought asylum at the border.   

“The Court considered that the applicants had in fact placed themselves in jeopardy by participating in the storming of the Melilla border fences on August 13, 2014, taking advantage of the group's large numbers and using force,” said the ruling.

It said they had not used existing procedures to gain lawful entry to Spanish territory.   

“Consequently, the Court considered that the lack of individual removal decisions could be attributed to the fact that the applicants had not made use of the official entry procedures existing for that purpose, and that it had thus been a consequence of their own conduct,” it said.   

As for the migrants' inability to appeal their removal, the court found that they themselves had been “required to abide by the rules for submitting such an appeal”.

As a result, Spain could not be held in violation.   

Spain's two North African enclaves, Melilla and Ceuta, have the European Union's only land borders with Africa, from where many fleeing wars and poverty try to find their way to the old continent.

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How the EU aims to reform border-free Schengen area

European countries agreed on Thursday to push towards a long-stalled reform of the bloc's migration system, urging tighter control of external borders and better burden-sharing when it comes to asylum-seekers.

How the EU aims to reform border-free Schengen area
European interior ministers met in the northern French city of tourcoing, where president Emmanuel Macron gave a speech. Photo: Yoat Valat/AFP

The EU home affairs commissioner Ylva Johansson, speaking after a meeting of European interior ministers, said she welcomed what she saw as new momentum on the issue.

In a reflection of the deep-rooted divisions on the issue, France’s Interior Minister Gérald Darmanin – whose country holds the rotating EU presidency – said the process would be “gradual”, and welcomed what he said was unanimous backing.

EU countries backed a proposal from French President Emmanuel Macron to create a council guiding policy in the Schengen area, the passport-free zone used by most EU countries and some affiliated nations such as Switzerland and Norway.

Schengen council

Speaking before the meeting, Macron said the “Schengen Council” would evaluate how the area was working but would also take joint decisions and facilitate coordination in times of crisis.

“This council can become the face of a strong, protective Europe that is comfortable with controlling its borders and therefore its destiny,” he said.

The first meeting is scheduled to take place on March 3rd in Brussels.

A statement released after the meeting said: “On this occasion, they will establish a set of indicators allowing for real time evaluation of the situation at our borders, and, with an aim to be able to respond to any difficulty, will continue their discussions on implementing new tools for solidarity at the external borders.”

Step by step

The statement also confirmed EU countries agreed to take a step-by-step approach on plans for reforming the EU’s asylum rules.

“The ministers also discussed the issues of asylum and immigration,” it read.

“They expressed their support for the phased approach, step by step, put forward by the French Presidency to make headway on these complex negotiations.

“On this basis, the Council will work over the coming weeks to define a first step of the reform of the European immigration and asylum system, which will fully respect the balance between the requirements of responsibility and solidarity.”

A planned overhaul of EU migration policy has so far foundered on the refusal of countries such as the Czech Republic, Hungary, Poland and Slovakia to accept a sharing out of asylum-seekers across the bloc.

That forces countries on the EU’s outer southern rim – Italy, Greece, Malta and Spain – to take responsibility for handling irregular migrants, many of whom are intent on making their way to Europe’s wealthier northern nations.

France is pushing for member states to commit to reinforcing the EU’s external borders by recording the details of every foreign arrival and improving vetting procedures.

It also wants recalcitrant EU countries to financially help out the ones on the frontline of migration flows if they do not take in asylum-seekers themselves.

Johansson was critical of the fact that, last year, “45,000 irregular arrivals” were not entered into the common Eurodac database containing the fingerprints of migrants and asylum-seekers.

Earlier, German Interior Minister Nancy Faeser suggested her country, France and others could form a “coalition of the willing” to take in asylum-seekers even if no bloc-wide agreement was struck to share them across member states.

She noted that Macron spoke of a dozen countries in that grouping, but added that was probably “very optimistic”.

Luxembourg’s foreign minister, Jean Asselborn, hailed what he said was “a less negative atmosphere” in Thursday’s meeting compared to previous talks.

But he cautioned that “we cannot let a few countries do their EU duty… while others look away”.

France is now working on reconciling positions with the aim of presenting propositions at a March 3rd meeting on European affairs.