EXPLAINED: What happens to the thousands of undocumented migrants after they arrive in Spain?

Spain is one of the gateways into Europe for African migrants seeking a better life. But what happens when they arrive on Spanish shores? Are they given accommodation? Can they be repatriated or are they granted asylum?

EXPLAINED: What happens to the thousands of undocumented migrants after they arrive in Spain?
Two friends hug before leaving a temporary migrant centre in Melilla and departing to Malaga in Spain. Photo: Fadel Senna/AFP

What’s the latest?

Spain is currently making international headlines after the arrival of some 6,000 migrants who crossed from Morocco to Ceuta by sea, most of whom swam across to Spain’s African enclave.

The figure is unprecedented for one single day, but historically speaking Spain has been the primary port of entry into Europe for north and sub-saharan Africans, with the relatively short boat ride to Spain’s Canary Islands being the preferred route more recently.

In 2020 alone, more than 23,000 migrants arrived on the shores of the Atlantic archipelago, and hundreds more have tragically drowned during the crossing from Mauritania or Morocco to the Spanish islands. 

Can Spain return migrants when they’ve just arrived?

Spain’s borders are by and large maritime, with Spain’s African enclaves of Ceuta and Melilla being exceptions. 

That means that in many cases Spanish authorities can’t immediately return new arrivals to the country they’ve just crossed over from, what’s been dubbed in Spanish devoluciones en caliente (‘fresh’ returns). 

Tear gas fills the air as Moroccan migrants rally by a border fence in the northern town of Fnideq in an attempt to cross the border from Morocco to Spain’s North African enclave of Ceuta on May 18, 2021. Photo: Fadel Senna/AFP

So if for example a group of migrants arrives by sea to the Canary Islands in a clandestine boat, both Spain’s Constitutional Court and the European Court of Human Rights state that border officers cannot return them to their port of departure there and then without carrying out any paperwork. 

In Spain’s African enclaves however, Spanish authorities can take the migrants back to Morocco without having to do it through the usual legal channels.

What happens with the migrants when they first arrive?

When immigrants arrive in Spain en situación irregular (in an irregular situation, as Spanish legalese refers to migrants without the right visas or permits), the law establishes that there is a maximum period of 72 hours to carry out the police review of the migrant’s case. 

They’re initially taken to a Temporary Reception Centre for immigrants (CATE), where border officers create a record of the migrant’s details and check if their fingerprints are in any national or international database.

It’s here also where the Red Cross provides first aid and other health assistance to the people who have endured the often perilous crossing. In the current context of the pandemic, migrants are also tested for Covid-19 here through PCR tests.

These centres for temporary migrant accommodation often suffer from overcrowding when there is a large wave of arrivals, leading to other emergency housing options being quickly set up in many cases. 

Depending on the resources available and the number of migrants, these have gone from hotels where tourists usually stay to huge makeshift camps in the forest

The 72-hour limit mentioned earlier is important because that is the limit for them to be held under police custody and can leave unless they’ve committed a documented felony. 

“Sometimes it’s not even necessary for 72 hours to have elapsed for these people, who have not committed any crime, but an administrative offense, to be released,” Gran Canaria magistrate Arcadio Díaz Tejera told Spanish online daily El Diario. 

Any irregular arrival in Spain involves the opening of a case for repatriation from the country that can conclude with the repatriation of that person. The migrants can claim international protection and request asylum at any time .

Only in cases in which these people can be properly identified is it possible to initiate an expulsion proceeding that is neither immediate nor guaranteed. 

The European Union has bilateral agreements that facilitate this with Turkey, Russia and Pakistan but not with any of the African nations most of these migrants are from. 

So Spain cannot forcibly return immigrants by air without the authorisation of the country in question. 

Regarding Ceuta and Melilla, Spanish government sources told Voz Populi that “Spain has to negotiate returns with Moroccan authorities based on a fixed percentage that can’t be surpassed”.

African migrants celebrate as they leave their temporary centre for migrants in Melilla. Photo: FADEL SENNA/AFP

Where do they stay and what happens next?

There have been reports of many migrants not being informed that they are no longer under police custody after the initial three-day period, meaning many of them are unaware that they can leave the reception centre. 

However, migrants are usually in a state of limbo and have nowhere to go or anything to do while their case is being studied.

While they are waiting to have their file or asylum processed, the migrants usually stay at a Foreigner Internment Centre (CIE) , where the maximum period of stay is 60 days, although NGOs report that many times the length of stay is longer than the legal one.

They are however under no obligation to stay there, and can sign a document saying they are turning down the state accommodation being offered to them.

In the Canary Islands recently there have been formal complaints launched against the lack of legal assistance provided to these people, who many times are unaware of their rights and do not even know that they can request asylum.

If a migrant’s asylum request is being processed, they cannot be repatriated and have the right to stay at international protection reception centres managed by Spain’s Ministry of Inclusion and Migration.

If a migrant is granted international protection they can stay legally in Spain.

In the event that their asylum and international protection request is denied, the case for repatriation is proposed to a judge who has to rule whether to allow it or not.

If there is no real prospect of being returned, migrants are not expected to stay at a Foreigner Internment Centre. 


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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.