“Hot returns” and the cold shoulder: New developments in deterrence along the Western Mediterranean Route

Discussions of European externalization of migration policy often focus on measures taken in Niger and along the Central Mediterranean Route. However, actions taken along the Western Mediterranean Route (WMR) to keep refugees and migrants at arms’ length from Europe should not be overlooked. In the first quarter of 2020 there were notable developments in European legal precedent and operational practice which served to deter migrants and refugees from EU borders. Both developments relate to non-mainland Spanish territories with proximity to the African continent, pertain to practices of physical removal from these territories, and disproportionately affect West Africans. They make it more difficult for West Africans to access due process, and by extension, to obtain protection and asylum.

The European Court of Human Rights and ‘hot returns’

On 13 February, the Grand Chamber of the European Court of Human Rights (ECHR) overturned the Court’s previous ruling on a case brought by two asylum seekers, a Malian and an Ivorian. The men had sought entrance to the Spanish enclave of Melilla in August of 2014, joining some 70 others in scaling the fences that surround the autonomous city which shares a land border with Morocco. After descending on the Spanish side of the fence, they were immediately turned over to Moroccan authorities and removed from Melilla back into Morocco. This is an example of the devoluciones en caliente (hot returns) that Spain has carried out since 2005, a practice in which migrants and asylum seekers are returned to Morocco without any further process – and no opportunity to claim asylum – as soon as they set foot in the Spanish territories of Ceuta and Melilla. This policy has particularly affected people from sub-Saharan Africa. In October 2017 the ECHR unanimously ruled that the rights of these men had been contravened, as they had been subject to collective expulsion and had been denied an effective remedy, as they did not undergo an identity verification process, nor were they given access to translation or legal assistance.[1]

While the amount Spain was ordered to pay to the Malian and Ivorian applicants was nominal – only €5,000 apiece – analysis in El Pais suggests that Spain feared this could undermine its practice of “hot returns,” and that the ruling would set a bad precedent. Thus, the Spanish government asked that the case be reviewed by the Court’s Grand Chamber, a request that was ultimately granted. The governments of Belgium, France and Italy also joined the appeal, suggesting that this concern did not rest solely with Spain, and that other European countries saw it as a matter of protecting the external EU border.

It is rare for the Grand Chamber to accept a referral; it has done so in only 5.16% of cases since the system came into force in November 1998, and implies that the case is considered “very significant,” and/or that it “involves an important or novel question.” The court itself highlights the role of this case in determining the scope for protection against collective expulsion “with regard to migrants who attempt to enter a Contracting State in an unauthorized manner by taking advantage of their large numbers,” saying that “this is especially important in the context of the ‘new challenges’ facing European States in terms of immigration control…”

The Grand Chamber review and decision hinged on the fact that the Malian and Ivorian asylum seekers were considered to have used illegal and forceful means to try and enter Spanish territory, and had not availed themselves of any of the legitimate paths to achieve entry or seek asylum that the Spanish government alleged were available, including the possibility of crossing legally at the land border with Melilla or applying for asylum at a Spanish consulate. The Spanish government argued that the applicants “had not demonstrated that they had been unable to enter Spanish territory lawfully,” an interpretation with which the Governments of Belgium, France and Italy concurred. Ultimately the Grand Chamber accepted this argument, reversing its previous decision and stating that:

The Court considers that the lack of individual removal decisions can be attributed to the fact that the applicants, if they indeed wished to assert rights under the Convention, did not make use of the official entry procedures existing for that purpose, and was thus a consequence of their own conduct.

However, the effective availability of asylum procedures and options to legally access the territory of Melilla remains in question, and was a central element of the case for the applicants. They argued that in practice there was no access for sub-Saharan Africans to apply for asylum at the border between Morocco and Melilla, and this claim was supported by multiple third parties. The asylum office at Melilla’s Beni Enzar border post was not established until after the events in question, and even after it was opened, Moroccan authorities systematically prevented sub-Saharan Africans from reaching it, according to the Commissioner for Human Rights of the Council of Europe, UNHCR and various NGOs focused on the rights of migrants and refugees.

David Moya, professor of constitutional law at the University of Barcelona, elaborated on this state of affairs. “The ruling says that hot returns or, technically, border rejections can be made, as long as the state has alternative access mechanisms. This sounds reasonable, but when confronted with reality it is neither legally nor factually true. If it were, there wouldn’t be anyone waiting two years on Mount Gurugu to cross the border.” This refers to the informal encampments in a forest outside of Melilla where many people – including the two applicants – have stayed, often for long periods, while waiting to make their crossing attempts. Various legal experts and scholars have warned that this ruling opens the door for European states to practice expulsions more freely, and that it could lead to refoulement. The judgement of the Grand Chamber is final and cannot be appealed.

Deportations from Canary Islands to Mauritania… and on to Mali…

On another frontier of the Western Mediterranean Route, boat arrivals of refugees and migrants to the Spanish-held Canary Islands have been increasing over the last months.[2] According to Frontex, the Canary Islands were the EU border with the largest percentage increase in migration seen in 2019. Although absolute numbers for the year were still relatively low, at some 2,700, more than half of these arrivals occurred in the final quarter of the year. Against this backdrop, the Spanish government has stepped up measures to expel people who arrive in the Canary Islands irregularly through deportation flights to Mauritania carried out with the support of Frontex. While these flights have occurred previously, their frequency has significantly increased, and greater attention is being paid by civil society and media to the potential for indirect refoulement that they pose, and to the sufficiency of the legal safeguards that surround these operations.

The mechanism through which these flights can take place is based in a readmission agreement signed with Mauritania, which dates back to 2003. This agreement allows for the return of Mauritanian nationals and any other persons who were presumed to have passed through Mauritania before arriving in the Canary Islands. However, there does not seem to be any rigorous mechanism in place to ascertain whether those subject to deportation actually passed through Mauritania. The Spanish National Mechanism for the Prevention of Torture reported that in one such return operation there was no evidence that the boat had passed via Mauritania on its journey to the Canary Islands. In two operations from early 2020, the detention orders of fourteen Malians indicated that they had traveled from Senegal to the Canary Islands.

While the Spanish Ministry of Interior does not publicize numbers in relation to these flights, information from the Spanish Ombudsmen indicates that they are increasing in frequency. Whereas only four such flights were carried out in 2018, from mid-2019 through the third week of March 2020, at least nine flights took place. Additionally, as concerns about Covid-19 abounded and other countries closed their borders to returns of their nationals from Spain, Mauritania had not taken a similar measure as of late March. It had imposed a quarantine on those returned from the Canary Islands, making deportation flights more challenging, but it had not stopped them entirely.

A number of concerns have been raised in relation to these operations, both by those who have undergone the deportation process and by organizations seeking to safeguard the rights of refugees and migrants. Officials from Spain’s National Mechanism for the Prevention of Torture noted “irregularities” in the January flights. Several Frontex officials involved in the implementation of both of these flights were not wearing vests that visibly displayed identification numbers, as required. Significant security presence marked the 20 January flight, and was considered to have an “obvious intimidating effect.” Additionally, several returnees who stated they were minors said they had not undergone any screening to determine their ages. Reportedly, there were also issues with documentation related to these operations in both cases, and on the 27 January flight the medical officials accompanying the flight did not have complete clinical histories of those on board, and all “fit to travel” documents were identical.

Deportees also raise a lack of accessible information about what would befall them. They cite an absence of translation, limited access to legal aid and the short notice they were given before deportation took place. In line with the overall gaps in communication and information sharing, some state explicitly that they were not told about the option to apply for asylum, which could have halted their expulsion. In another case reported by Spanish media outlets, it appears that a number of Malians had gone so far as to express their desire to seek asylum in Spain, but were nonetheless included in the January deportation flights to Mauritania.

Issues related to inadequate communication, advice and screening processes for returnees gain a further worrying dimension given the composition of recent flights. In three flights occurring in the first two months of the year (20 and 27 January, 17 February) 139 people were deported to Mauritania. Of these, only eight were Mauritanian, and 108 were from Mali, with the remainder from other West and Central African nations including Gabon, Ivory Coast and Senegal. Migrants and refugees expelled from the Canary Islands under these operations are flown to Nouadhibou in northwest Mauritania and then brought directly to the Mali and Senegalese borders where they are handed over to local authorities. This is concerning in it itself, but particularly so given the preponderance of Malians among those deported, and the prevailing UNHCR Position on Returns to Mali (Update II) which calls on states to refrain from forcibly returning Malians originating from a variety of administrative locations within the country.

The Spanish Minister of the Interior maintains that the flights comply with international norms as “they are not going to Mali, but to Mauritania.” However, the spokesperson for the Canary Islands government has stated that they do not really know whether deportees from Mali will be returned to their country once they reach Nouadhibou, and Mauritanian security officials have confirmed that this is indeed what occurs. The Spanish government has also claimed that the expulsion flights are legal because Malians are given the chance to apply for asylum, but this does not seem to align with the experiences described above. According to UNHCR, “no one from the regions affected by the conflict should be forcibly returned to Mali, as the rest of the country should not be considered as an adequate alternative to asylum,” and “the State carrying out these operations is responsible for ensuring with the receiving country that the return does not pose a threat to the life or integrity of the returned persons, either directly or indirectly.” It is not clear that either of these safeguards are being met in Spain’s deportations from the Canary Islands to Mauritania.

Pieces of a larger pattern

These developments highlight the interplay between legal boundaries and operational practices, and show how their evolution over time has tended to arc towards greater restrictiveness. The “hot returns” carried out at the Spain/Morocco border began in 2005 as an operational gray area, the permissibility of which was initially rejected by the ECHR. Now, the Grand Chamber ruling gives them a new legitimacy. On the other hand, Spain’s deportations from the Canary Islands to Mauritania are regulated by a 2003 readmission agreement and therefore grounded in international law. However, the manner of their implementation raises new questions as to whether the rights of refugees and migrants are being upheld.

While Spain has been a driving force behind the practices reviewed here, other European governments and institutions have also contributed to these efforts to reinforce Europe’s external borders. The deportation flights from the Canary Islands to Mauritania are carried out in conjunction with Frontex. Belgium, France and Italy all submitted third party observations supporting the Spanish position in the ECHR Grand Chamber, which accepted the referral highlighting “the ‘new challenges’ facing European States in terms of immigration control.” These developments could therefore be seen through the lens of European externalization of migration, as opposed to simply viewing them as the efforts of an individual European state (Spain) to control its borders.

These developments have many concerning aspects. Referring to the ECHR Grand Chamber decision, a legal expert from the European Council on Refugees and Exiles stated: “We believe that it should be interpreted in a restrictive way and be limited to the factual situation in this case. In no way should it be perceived as giving states carte blanche to resort to all sorts of arbitrary behavior on the grounds that someone was desperate enough to storm the border.” However, the recent practice of certain European governments suggests that some States will prefer a broader interpretation, and now have precedent which can serve to legitimize expulsions. At the same time, ongoing deportations from the Canary Islands to Mauritania appear to lack important safeguards related to appropriate screening of migrants and refugees; accessible and comprehensible information sharing; ensuring effective access to asylum procedures; and, particularly in the case of Malians, protecting against possible refoulement. These individual elements all contribute to a pattern of greater deterrence which has been a long time in the making, and which does not appear likely to be reversed in the near future.

[1] Article 4 Protocol 4 and Article 13 of the European Convention on Human Rights, respectively.

[2] For more on this phenomenon, see the Mixed Migration Centre’s Quarterly Mixed Migration Update West Africa, Quarter 4 2019, Thematic focus: Atlantic departures and Canary Island arrivals.