Spain: LGBT Asylum Seekers Abused in North African Enclave

Lesbian, gay, bisexual, and transgender (LGBT) asylum seekers in Spain's North African enclave, Ceuta, are exposed to harassment and abuse, Human Rights Watch said today. Spanish authorities should transfer them to mainland Spain without delay and halt its de facto policy of blocking most asylum seeker transfers to the mainland.

"LGBT asylum seekers who fled homophobic harassment and intimidation at home face similar abuse in Ceuta, both at the immigration center and on the street," said Judith Sunderland, associate Europe and Central Asia director at Human Rights Watch. "Spain should transfer them to reception centers on the mainland, where they can get the services and support they are entitled to."

All migrants who enter Ceuta irregularly are housed in the Temporary Stay Center for Immigrants (Centro de Estancia Temporal de Inmigrantes, CETI), under the authority of the Employment and Social Security Ministry. The facility, designed for short-term stays and with a capacity of 512 people, is often overcrowded. Despite staff efforts, asylum seekers cannot get the care and services there to which they

When Human Rights Watch visited on March 28 and 29, 2017, the center held 943 residents, many living in large tents set up on what should be a basketball court inside the compound, with others sleeping in rooms that should be used for classes or group activities. While the center is open, and migrants may come and go, they are not allowed to leave Ceuta, an enclave of only 18.5 square kilometers.

According to center staff, currently 70 to 80 asylum seekers are in the Ceuta center, of whom at least 10 have filed for asylum on the grounds of discrimination based on their sexual orientation or gender identity.

Human Rights Watch spoke with three gay men housed at the center, two from Morocco and one from Algeria, all of whom had filed for asylum on the grounds of persecution due to their sexual orientation. They described extreme abuse, including physical violence, by family members, repeated and widespread societal rejection, and physical attacks on the streets in their countries of origin. One Moroccan man said he had been jailed in part due to his sexual orientation. Both Morocco and Algeria criminalize consensual same-sex sexual activity, punishable by up to three years in prison and fines.

All three spoke of difficulties in the center and in Ceuta due to their sexual orientation.

"Ahmed" (a pseudonym), a 29-year-old Moroccan, said he fled his country because he suffered threats from both his family and the police but that he is experiencing the same kind of treatment at the hands of other people staying in the CETI. "They [other CETI residents] tell me if they see me outside [the center] they'll beat me," he said. "They come after me, and I run. One time, in November or December, they hit me."

LGBT asylum seekers are trapped in Ceuta by what Human Rights Watch believes to be a policy designed to deter asylum applications from all asylum seekers, except for Syrians, who manage to reach the enclave. Migrants who do not apply for asylum are given expulsion orders and transferred to mainland Spain at a target rate of 80 per week where they are placed either in detention centers pending deportation or in shelters operated by nongovernmental groups. Asylum seekers, however, are generally not permitted to transfer.

"Denying asylum seekers their freedom of movement to deter applications would not only be cruel and misguided, but also a misuse of power," Sunderland said. "Yet, the evidence suggests that the authorities impose a terrible choice on people in need of protection, requiring them to declare their need and face months or years in limbo in Ceuta, or to take their chances and apply for asylum only after they've been transferred to the mainland with an expulsion order in hand."

While some migrants may stay at the center in Ceuta four or five months, those who apply for asylum normally stay much longer, sometimes throughout the entire procedure for assessing their application for protection, a process that can last well over a year. Police in Ceuta carry out border checks and block asylum seekers who try to leave the enclave for mainland Spain.

In 2010, the Spanish Interior Ministry said that the asylum seekers in the enclaves receive documents allowing them to live both in Ceuta and in the other North Africa Spanish enclave, Melilla. However, the ministry said that these documents do not in any circumstances entitle them to travel to the Spanish mainland. Although Spanish authorities do regularly transfer Syrian asylum seekers from the enclaves, the ministry does not appear to have changed its policy with respect to other nationalities despite a series of court rulings and recommendations from the Spanish human rights institute – the Defensor del Pueblo – and refugee rights organizations. Court rulings also have said that asylum seekers should have freedom of movement inside Spain.

"The situation of the enclaves, the European Union's borders on the southern rim of the Mediterranean, is no doubt different than for other EU countries but that's no excuse for punishing those who enter Ceuta to seek asylum," Sunderland said. "Spain has the wherewithal to treat asylum seekers decently including LGBT people searching for a tolerant country where they can live without fear of discrimination or violence."

Accounts by Asylum Seekers

"Ahmed," the 29-year-old Moroccan, told Human Rights Watch that in his home country, "I couldn't find anyone to protect me, neither my family nor the police." He had been sentenced to six months in prison after he ran to the police late one night from two men beating him in the streets because he is gay. But life in the center in Ceuta, where he has been housed since mid-October 2016, is hard. "Here too they insult me, call me 'faggot.' They tell me if they see me outside [the center] they'll beat me. They come after me, and I run. One time, in November or December, they hit me. It was an Algerian. He called me a faggot, he said 'I'm going to kill you.' The day before yesterday, I was in a friend's room [in the center] and an Algerian came and threw me out, saying, 'Hey faggot, get out of here.'"

Ahmed spoke of his dreams of a new life: "I want to survive, I want a future. I don't want to have to always think that I'm going to be beaten up…I can't in Morocco, and I can't here either because Ceuta is like Morocco."

"Francisco" (a pseudonym), a 30-year-old from Morocco, had been living in the center for 14 months. He said that his family had kicked him out when he was 12 because of his sexuality. He had been raped by two men in a garbage dump while still a teenager, and beaten and arrested by the police. The last straw was when a cousin, with whom Francisco had been living after the cousin's return after years abroad, turned against him after learning he was gay:

I came to Ceuta. I didn't have any other choice but to ask for asylum. But here it's terrible. I am desperate. Ceuta is just like Morocco. One time I was at the beach, and a man who was a little older than me offered me a joint. I said no. He wanted to have sex but I said no, and he threw a rock at me and hit me. I went to the police. At first they didn't want to take my complaint. They didn't do anything. That man is always there at the beach…In the CETI I don't talk to anyone, I avoid problems. If I didn't, I would burst. You know, being thrown out of my home when I was 12, all the problems…

"Said" (a pseudonym), a 32-year-old Algerian, had been at the CETI for almost 10 months when Human Rights Watch met him: "I want to live a new life," he said. "I need to forget my problems. I didn't have a clear idea of where to go, just a place where I could live without violence. It's hard here. You can only sleep and eat, sleep and eat. I avoid everyone here to avoid problems."

A staff member told Human Rights Watch that other residents often "ridicule, harass, and attack" LGBT asylum seekers. "Many don't accept sharing a room with a homosexual. Either they harass them here or they fight outside the center."

EU Policy

The European Union Reception Directive, binding on Spain, requires EU countries to take into consideration the situation of vulnerable people when it comes to accommodation, and to take measures to prevent sexual assault and harassment in reception centers. Although LGBT asylum seekers are not listed in the directive among people considered vulnerable, Human Rights Watch agrees with the EU Fundamental Rights Agency and the International Lesbian, Gay, Bisexual, Trans, and Intersex Association (ILGA-Europe) that many LGBT people seeking asylum qualify due to the kind of persecution experienced in their countries of origin. In a 2015 report, the United Nations Refugee Agency, UNHCR, noted that, "LGBTI persons of concern face a wide variety of protection risks in countries of asylum, including further persecution by authorities, host communities, family members, and other asylum-seekers and refugees."

Best practices in reception for people identified as LGBT asylum seekers by such organizations include accommodation in single rooms, transfers to smaller centers, specific training for staff, and facilitating access to LGBT organizations and support networks.

These conditions cannot be met for LGBT asylum seekers at the reception center or elsewhere in Ceuta.

Nongovernmental organizations, the Defensor del Pueblo, and UNHCR have repeatedly underlined that the center in Ceuta, as well as the one in Melilla, are not fit as reception centers for asylum seekers. In a report published in June 2016, the Defensor del Pueblo concluded that these centers "cannot be considered appropriate for housing and attending to asylum seekers" and reiterated that the institute has drawn attention to "the lack of specialized assistance for asylum seekers and particularly for persons with special vulnerabilities." UNHCR's representative in Spain, Francesca Friz-Prguda, said in December that the centers "do not meet the minimum requirements laid out in European [asylum] directives" and "are not the place for people who arrive traumatized fleeing from war and persecution."

Land border crossings to Ceuta have fallen over the past few years, despite some recent large group arrivals. In 2016, just over 2,000 people – mostly sub-Saharan Africans and some Algerians – crossed the land border irregularly. Fewer than 16,000 people filed new asylum applications in Spain in 2016, well under 2 percent of the EU total.

The Situation in Ceuta

Ceuta is just across the Strait of Gibraltar from Algeciras, entirely separated from its neighboring territory in North Africa by a double-layer fence topped with razor-wire. A triple-layer fence separates Spain's other enclave, Melilla, closer to the Algerian border, from Moroccan territory. Irregular migration to the enclaves takes a variety of forms, including large group attempts to scale the fences, crossing in hidden compartments in vehicles, approach by sea, and through the use of fake travel documents.

Human Rights Watch visited Melilla on March 23 through 26, and Ceuta on March 27 through 29. Researchers were not granted access to visit the reception center in Melilla. At the time of the visit, approximately 880 people were living in the Melilla center, which as a capacity of 480. At least 350 asylum seekers were housed in the Melilla reception center, at least 50 of whom have applied on grounds of persecution due to their sexual orientation or gender identity.

The Moroccan government has coordinated security measures and border management with EU member states, especially Spain, since the 1990s, and the country is an important partner in EU efforts to externalize border controls. While the numbers of migrants and asylum-seekers reaching Spain from Morocco pale in comparison to arrivals to Italy and Greece, EU migration cooperation with Morocco, driven by Spain, has provided a blueprint for policies pursued by the EU and member states since 2015 with other transit countries.

Bilateral readmission agreements between Spain and Algeria, as well as between Spain and Morocco, make it easier for Spain to directly return nationals of those countries from its enclaves.

Morocco adopted a national strategy in 2013 to overhaul national policies toward migrants and asylum seekers, including by providing certain basic rights. In 2016, the government granted one-year renewable residency permits to thousands of sub-Saharan Africans and to over 500 UNHCR-recognized Syrians. However, interviews with sub-Saharan Africans in Ceuta and Melilla in March 2017 indicated that police raids on informal migrant camps, destruction and theft of property, involuntary transfers to other parts of Morocco, as well as violence by Moroccan border guards, previously documented by Human Rights Watch findings, continue. Morocco does not yet have a functioning asylum system.

Spain has taken drastic border control measures in its enclaves, including summary returns to Morocco and disproportionate use of force by border guards. In April 2015, the Spanish government changed the law to formalize the unlawful practice of summary returns to Morocco of anyone apprehended scaling the fences in a group, a move denounced by numerous nongovernmental groups, including Human Rights Watch, as well as the Defensor del Pueblo, the UN, and the Council of Europe.

A challenge to summary returns in 2014 is pending before the European Court of Human Rights. On February 6, 2014, at least 15 migrants died attempting to swim to Ceuta when the Spanish Guardia Civil fired rubber bullets and teargas at the water. A high court reopened in January 2017 the investigation into criminal responsibility of 16 Guardia Civil agents, overturning a lower judge's decision in October 2015 to close the case without filing charges.

Spain officially inaugurated border asylum offices in both enclaves in 2015. While Syrians and Palestinians continue to access the Melilla asylum office, many reportedly using fake Moroccan documents and by bribing Moroccan officials in order to leave the Moroccan side, no other nationals have ever approached the Melilla office. Since its inauguration, in March 2015, not a single person has applied for asylum at the Ceuta border office. The obstacles to exiting Morocco via the official border crossing leave many, including asylum seekers, no choice but to attempt to enter the enclaves irregularly. Once in Ceuta or Melilla, they can apply for asylum at a police station or at the CETI.

Human Rights Watch visited the well-appointed but locked and empty Ceuta border asylum office on March 29. The chief inspector in charge explained that a trained officer is always on duty, with a key, should anyone arrive. He added, however, that the office "is useless, it's only to comply with a European regulation." When asked why he thought no one had ever applied for asylum at the office, he explained that the Moroccans "shouldn't let people through…they do their filter. It doesn't make sense to have an office on this side of the border if Morocco can grant asylum, it's not a country at war."

Human Rights Watch has observed that the central Interior Ministry routinely decides not to allow non-Syrian asylum seekers be transferred to the mainland, while irregular migrants are transferred. Ricardo Espíritu Navarro, director of the Ceuta reception center, said: "It's not the responsibility of the Ministry [of Employment] to draw up the lists of transfers. The Ministry of Interior makes its own decisions. They usually don't transfer asylum seekers. They don't transfer Algerians. I don't know why, it's not my job." The director said he had convinced the authorities to transfer to the mainland, in early March, a group of Algerian women asylum seekers, including some who are LGBT, who had protested unfair treatment and length of their stay at the Ceuta center.

Human Rights Watch believes the prospect of having to remain in Ceuta indefinitely deters people in need of international protection from applying for asylum. Human Rights Watch spoke to a 22-year-old from the Central African Republic who, a month after arriving at the reception center, was struggling with the decision of whether to apply for asylum: "They say you have to apply in the first place you reach, but if there's no place for me how am I going to do that? The procedure takes a long time, I don't want to stay here." Human Rights Watch heard from several sources about a sub-Saharan man who withdrew his asylum application after the police explicitly told him he would be transferred to the mainland if he did so; he was transferred a few days later.

The police regularly deny transfer requests by asylum seekers in Ceuta. Police orders viewed by Human Rights Watch cite Spain's commitments under the EU's Schengen Border Code to check identity papers and travel documents for travel from the enclaves of Ceuta and Melilla to other parts of Spain or to other Schengen countries, and assert that the applicant does not fulfil any of the requirements for entry into Spain "nor is there any exceptional reason of a humanitarian or public interest" to allow the person entry. The Ceuta National Police, through its media office, declined a Human Rights Watch request to meet with the head of the immigration and borders unit (Brigada de Extranjería y Fronteras).

Numerous Spanish court rulings have upheld the right of asylum seekers to freedom of movement within Spanish territory and ruled that preventing asylum seekers from traveling from the enclaves to the mainland constituted a violation of that right. Reiterating its findings in previous cases, the Sevilla Superior Court ruled in February 2015 that under Spanish immigration law asylum seekers enjoy the right to freedom of movement, irrespective of the manner in which they entered the country, and that the "exceptionalism of Ceuta resides in [the right of the police to conduct border] checks but not in a limitation not imposed by law. That the police can check [documents] does not mean they can impede the enjoyment of a right."

The higher court found that the lower court's decision validating the police denial of the possibility to travel onward from Ceuta amounted to "punishing irregular entry into Spain of someone who subsequently applied for asylum, which is at odds with existing legislation."