What’s the latest?
Spain is currently making international headlines after 23 African migrants died when a huge crowd tried to cross into the Spanish enclave of Melilla in northern Morocco.
Similar mass crossings have ended in tragedy and controversy in recent years, as historically speaking Spain has become the primary port of entry into Europe for north and sub-saharan Africans.
Since relationships between Spain and Morocco soured in May 2021, more than 50,000 migrants have illegally entered Ceuta and Melilla (figures up to March 2022).
READ ALSO: Why are Ceuta and Melilla Spanish?
But it's not just Spain's enclaves in northern Morocco that are the centre of this migrant crisis, as the relatively short but treacherous boat ride to Spain’s Canary Islands has also been one of the preferred routes for desperate African migrants for more than a decade.
In 2021 alone, almost 21,000 migrants arrived on the shores of the Atlantic archipelago, 937 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 (previously) 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”.
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 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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