10 November 2017
The plenary meeting of the Spanish Senate (the lower house of parliament) this Wednesday voted against a proposal that would ban the "hot returns" (immediate expulsions without procedure) at the Spanish borders that were recently condemned by the European Court of Human Rights (ECHR) in the N.D. and N.T. case.
The motion to change the law was proposed by the Unidos Podemos group but blocked due to votes against from the governing Popular Party (PP) and the abstention of the Spanish Socialist Workers' Party (PSOE).
As well as voting against the amendment, the PP confirmed that it would appeal against the judgment of the Strasbourg court.
"Hot returns" were legalised by the previous PP administration through a 2015 amendment to the Law on Citizens' Security, after a Spanish court ruled that the practice was illegal.
The European Court of Human Rights ruled in September that the Spanish authorities acted illegally when they returned two men (one from Mali and one from Ivory Coast) to Morocco, without subjecting them to any identification, administrative or legal procedures, after they had scaled the fence separating the north African kingdom from the Spanish enclave of Melilla.
The practice of "hot returns" has been documented in dozens of cases by journalists and NGOs, who have condemned the practice along with lawyers, politicians and international actors such as the Council of Europe's Commissioner for Human Rights and the UN Subcommittee for the Prevention of Torture.
The EU, for its part, has been far more accommodating to the Spanish authorities. Home Affairs Commissioner Dimitris Avramopoulos told Green MEP Ernest Urtasun in August 2015:
"The Commission considers that respect for the principle of 'non-refoulement' in the context of immediate return operations such as those applied at the Ceuta and Melilla external border can be assured, if those who are subject of immediate return have - both in law and in practice - the possibility to submit a possible request for protection at an easily accessible border crossing point. As long as this possibility exists, the Commission does not consider that there is a justification for launching an infringement procedure against Spain.
The recent establishment in Ceuta and Melilla of offices at the border for requests for international protection is seen by the Commission as a positive development directly linked to an effort by the Spanish authorities to make sure that the principle of 'non-refoulement' is respected."
This is precisely the view defended by Spain's Popular Party, who point to the offices to demonstrate that anyone who wishes to can apply for asylum - which would be the case, had it not been repeatedly demonstrated that sub-Saharan Africans are unable to access the offices.
As highlighted in a report from March this year by a coalition of journalists and human rights organisations:
"After pressure from the international community the government opened asylum offices at the frontier posts in 2015. However, people from black African countries are impeded from accessing those offices. Various organisations have highlighted blocks, aggression and detention as methods employed by the Moroccan police to prevent people approaching the frontier posts. Thus, only those who try to jump the fence can access Spanish territory."
During the debate in the Senate this point was highlighted by the Basque senator Jon Iñarritu, who commented that: "According to the UNHCR, some 80%" of those who arrive at the border fences are potential refugees and the principal problem is that they cannot access the asylum offices, where not a single sub-Saharan African has presented an asylum request since they opened in 2014.
According to Juan José Imbroda, a PP representative and mayor of Melilla, the 2015 amendment to the Law on Public Security "is being complied with stupendously well, respecting all human rights."
ECHR: Press release (pdf)
European Parliament: Answer to question (link)
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