Spain: Covid-19 and Detention

The Camp Installed in Barranco Seco, in Las Palmas de Gran Canaria, Where Part of the Migrants from the Arguineguin Port Are Expected, (Angel Medina, EFE, "El Gobierno Trasladara Esta Tarde a 200 Migrantes desde Arguineguin a las Nuevas Instalaciones Cedidas por Defensa," El Pais, 18 November 2020, https://elpais.com/espana/2020-11-18/el-gobierno-comienza-los-traslados-de-migrantes-desde-arguineguin-a-las-nuevas-instalaciones-en-barranco-seco.html)

There have been a number of judicial decisions in Spain in recent weeks that could have crucial impacts on how migrants and asylum seekers are treated, in particular with respect to Covid-related border controls. In one case from November, Spain’s Constitutional Court found that a provision in the country’s controversial Citizen Security Law allowing push backs of migrants who try to climb fences into the Spanish enclaves of Ceuta and Melilla is constitutional. There remain exceptions to these push backs: cases involving minors and other vulnerable groups such as the elderly or pregnant women. According to El País, the finding will not result in changes to legislation, but it clarifies that the government can carry out these procedures, which have long been condemned by observers as violating fundamental rights. In Spain, the Citizen Security Law has been referred to as the “gag law” (“Ley mordaza”) due to its effect on the right to protest. The statute has long been contested and has gone through several modifications, a constitutional challenge regarding certain provisions, and political opposition members have vowed to repeal the legislation if the parliamentary majority changes after the next general election.

Also in November, the Spanish Supreme Court (Tribunal Supremo) recognised the right of asylum seekers to request their transfer to Spain through Spanish embassies, in order to formalise a request for international protection. Although this right was already included in the 2009 Asylum Law, access to the asylum procedure has until now been largely blocked through this channel. The provision in the Asylum Law, Article 38, enables ambassadors to “promote the transfer” of asylum seekers to Spain in order for them to formalise their asylum application. (El Diario, On 18 November 2020)

The Supreme Court ruling involves the case of a Kurdish-Iraqi family that arrived in Greece in 2016, fleeing conflict and war, where they applied for asylum and received no response. A year later, they requested a transfer to Spain in the context of the European relocation program, but only the mother’s and daughter’s requests were accepted. The father had to remain in Greece and subsequently applied for asylum, through the Spanish embassy in Greece, but did not receive a response. The group Stop Mare Nostrum filed a petition before the National Court, which then ruled in favour of the family in March 2019. Yet, the state appealed to the Spanish Supreme Court in order to preclude the father from being transferred to Spain, alleging the impossibility of applying certain provisions from the Asylum Law as these did not have a regulatory framework. The Supreme Court held that the lack of a regulation did not prevent the application of the content of the provision to international protection applications.

According to Stop Mare Nostrum, of their 38 registered transfer petitions in the Spanish consulates in Athens and Tanger, Spanish authorities have “failed to respond to all.” The group argues that the government’s refusal to allow for the possibility of these types of asylum requests stands in direct contradiction to the government’s arguments for allowing forced push backs from Ceuta and Melilla (in the separate case cited above). In that push backs case, Spain pointed to the existing legal avenues to enter its territory and mentioned Article 38 of the Asylum Law, the same provision they sought to block for the Kurdish-Iraqi family in Greece as well as others.

In October, the court in the Castilla-La Mancha region asked the CJEU whether authorities could rely on provisions in the EU Return Directive to effect a removal in lieu of the more stringent requirements provided in Spanish law, which requires the existence of aggravating circumstances, in addition to irregular status, to justify the procedure (see 16 November Spain update on this platform). The Court held that the national authority could not rely on a “deportation order” to expel a migrant in an irregular situation if national law imposes a fine or only provides for return when there are serious violations. In effect, the ruling means that Spain must apply its national immigration law, imposing a fine in cases of irregular stay and only contemplating the expulsion of non-citizens in an irregular situation when there are aggravating circumstances.

Separately, in late November, as the numbers of migrants and asylum seekers arriving on the Canary Islands has been growing, police improperly evicted hundreds of migrants from the port of Arguineguin (Gran Canaria) even though they had not yet been provided with reception places elsewhere. The Interior Ministry opened an investigation to determine how this happened and accelerated the opening of the Temporary Centre for Foreigners in the military installations of Barranco Seco, and relocated two hundred migrants there. The Defense Ministry has provided materials to house another 200 people. According to police authorities, the decision to evict the migrants came after having unsuccessfully tried to contact the Spanish immigration authority (Secretaria de Estado de Migraciones). As the police received no response, they moved forward with their operation. However, sources from the Spanish immigration authority told El País that they had not received a call and that if they had, the usual protocol would have been followed.

According to data from the Interior Ministry, the Canary Islands has become, in 2020, the main entry point for irregular migration in Spain. The number of people who have arrived by sea throughout the country has risen to 32,427 people, 45.5 percent more compared to the same period in 2019. Of this figure, 51.7 percent, or 16,760 migrants, entered Spain through the Canary Islands.

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