The Spanish Commission of Assistance to the Refugee (CEAR) has announced on multiple occasions, the risks caused by the devoluciones en caliente, which are the immediate and forcible return of aliens crossing the fence that separates Spain and Morocco. The Law on Protection of Citizen Security gave security forces a legal title to disallow from requesting asylum prior to their return to Moroccan forces. The CEAR has repeatedly denounced the devoluciones en caliente as incompatible with Spain’s obligations under International and European Law, and cited that Morocco is not a safe haven for asylum seekers.
Two individuals of Sub-Saharan origin affected by this practice took their case to the European Court of Human Rights in 2015. The Chamber of the Third Section estimated that returning potential asylum seekers at the border was in fact a violation of the prohibition of collective expulsion and of the right to an effective remedy. While civil society was celebrating this decision, the Spanish government requested the referral to the Grand Chamber, who granted that request. The Grand Chamber ultimately decided, on February 13, 2020, amidst the shock of human rights associations and scholars, that the immediate and forcible return of aliens is not a violation of the Convention, thus invalidating the previous decision.
The Court has considered that in order to be regarded as an unlawful expulsion, the return cannot be attributed to the individual’s own culpable conduct. In the light of the entry being considered unlawful according to Spanish legal framework, and the existence of alternatives such as the request of humanitarian visas in a Spanish embassy or through the authorities at the Beni Enzar crossing border point, the Court decided that the applicant’s culpable conduct justified the lack of an individual decision on their expulsion.
Nevertheless, the CEAR has contested this decision stating that the alternatives set by the Spanish government “are not effective or realistic”. It is extremely difficult for asylum seekers to obtain humanitarian visas in Spanish embassies or consulates, and at the entry point, very few asylum requests have been accepted, even more so for people of Sub-Saharan origin. While the Grand Chamber restates that the obligation of non-refoulement must be respected, the CEAR finds it puzzling how this obligation can be fulfilled when there are no effective alternatives and aliens are systematically returned at the border.
That being said, Spain does not have any obligation to grant asylum to aliens outside of Spanish territory. However, future discussions may determine if the illegal entry of an alien could per se constitute culpable conduct, even when other options are effectively available, in regards to the risk of violation of the prohibition of torture in the case of return. The exception of culpable conduct should be read in light of the Qualification Directive and the Geneva Convention of 1951, in which only serious offenses are considered a lawful exception to the obligation of non-refoulement. The illegal entry of aliens cannot justify the practice of collective expulsion when the rights of asylum seekers are at stake.
Recently, the Spanish Constitutional Court debated on the Law on Protection of Citizen Security in the light of the decision of the European Court of Human Rights, and was expected to take a restrictive approach that would be more protective of fundamental rights. However, the judges sitting at the Court did not reach an agreement on the matter, and have postponed their review for a later date.