Spain/Morocco: Protect Migrants, Asylum Seekers

Spanish and Moroccan authorities should affirm procedures to protect rights for migrants and reject summary returns at the border.

Spain is expected to use a March 26, 2014 meeting with Morocco about migration to push for an explicit mechanism allowing for immediate, summary return of irregular migrants from Ceuta and Melilla, Spanish enclaves on Morocco's Mediterranean coast.

"Pushing people back across the border without due process or screening for protection violates Spanish, European, and international law," said Judith Sunderland, senior Western Europe researcher at Human Rights Watch. "All the more so because migrants forced back into Morocco face violence and other abuse at the hands of Moroccan security forces."

The March 26 meeting in Tangier will include discussion of how to carry out the existing bilateral readmission agreement between Spain and Morocco at a time when their treatment of migrants is under scrutiny. Spanish measures to secure its borders with Morocco, including the use of barbed wire fences around the enclaves and anti-riot weapons, are in the spotlight after 15 migrants drowned while swimming to Ceuta in early February. And a Human Rights Watch report in February detailed Morocco's harsh treatment of migrants near its borders with the enclaves.

Human Rights Watch, other nongovernmental organizations, and Spain's independent human rights institute, have documented unlawful summary returns to Morocco from the Spanish enclaves. Statements from migrants indicate that Spanish Guardia Civil who patrol the enclave borders hand over some migrants to Moroccan security forces through gates along the fences without any due process. Spanish immigration law prohibits such returns and guarantees irregular migrants the right to legal counsel and an interpreter during deportation proceedings.

Spanish authorities have long denied that its border forces are carrying out summary returns, but recent statements from Madrid suggest it now wants to legalize this practice through an explicit agreement with Morocco within the framework of its bilateral readmission agreement. The agreement, signed in 1992 but operational only since 2012, provides for minimal formalities to facilitate the return of third-country nationals. Undermining the already weak human rights safeguards in the agreement would be a step in the wrong direction, Human Rights Watch said.

Spain's interior minister, Jorge Fernández Díaz, has indicated that he wants to change the country's immigration law to allow for summary expulsions from the enclaves. He has gone so far as to argue that migrants should not be considered to have entered Spanish territory until they have crossed the "police line."

"The argument that a person is not actually in Spain until he gets past a police officer boggles the mind," Sunderland said. "Spain cannot move the border as it sees fit, nor can it side-step EU law and international human rights standards."

International and EU law prohibit refoulement - that is, forcible returns to a place where a person would face a real risk of inhuman and degrading treatment. The EU Charter of Fundamental Rights recognizes a right to asylum, while the EU returns directive sets out minimum procedural safeguards for returns of undocumented migrants and requires Spain to take due account of certain individual circumstances as well as its nonrefoulement obligations.

Migrants in large groups regularly attempt to scale the 6-meter (almost 20-foot) fences separating Ceuta and Melilla from Morocco. On March 18, 2014, some 500 migrants managed to climb over the fences at Melilla in the largest successful attempt in recent years.

According to official statistics, over 4,300 people entered the two enclaves irregularly in 2013, compared with 2,804 in 2012. In November 2013, Spain reinstalled barbed wire on the fence surrounding Melilla - it had been removed in 2007, though it has been atop Ceuta fences since 2005. Spain is also installing mesh designed to prevent climbing and has also announced it would extend the breakwaters separating Ceuta and Morocco.

After the migrants drowned trying to reach Ceuta on February 6, 2014, and initial denials, Minister Fernández confirmed that Spanish Guardia Civil agents had fired rubber bullets and teargas into the water. The EU home affairs commissioner, Cecilia Malmström, expressed concern that the firing of rubber bullets may have provoked panic among the swimmers and contributed to the deaths. Videos appear to show Spanish agents leading survivors from the beach straight back to Moroccan territory.

An investigative judge in Ceuta is leading the criminal investigation into the deaths of the 5 migrants whose corpses washed up on Ceuta shores. Spanish authorities have insisted that all 15 drowned in Moroccan territorial waters, and the media reported that the judge intends to close the investigation, for lack of jurisdiction, if that is proven accurate. Moroccan authorities had not yet provided information on any similar investigation into the deaths of the 10 migrants whose bodies were carried by the tide to Moroccan beaches.

Although Minister Fernández conceded that it "would have been better" had the Guardia Civil not used rubber bullets and has since given orders against their use at the enclave borders, he and Arsenio Fernández de Mesa, the head of the Guardia Civil, have staunchly defended the behavior of border agents on February 6 and on the enclaves border generally. The ruling Popular Party used its absolute majority to block a motion in parliament to debate the creation of an ad hoc committee to investigate the February 6 events, though the deputy interior minister, Francisco Martínez, appeared before a parliamentary commission on March 19 to present the government's account of what happened, including with audio and video recordings. Martínez insisted that the migrants drowned because they had misjudged the high tide and could not swim, not because of the rubber bullets and tear gas. No one has resigned or been disciplined.

"It is paramount for the judge to conduct a thorough and diligent investigation into possible criminal responsibility, all the way up the chain of command," Sunderland said. "The investigation should get to the bottom of whether the actions of the Guardia Civil played a role in the deaths, whether in Spanish or Moroccan waters."

Moroccan security forces frequently beat, otherwise abuse, and sometimes steal from sub-Saharan migrants who fail in their attempt to reach Ceuta or Melilla or who are returned to their custody by the Guardia Civil in those enclaves, Human Rights Watch said. While a new migration and asylum policy that went into effect in September has led to some improvements for migrants in Morocco, Human Rights Watch research in January and February 2014 found that Moroccan security forces still use violence against sub-Saharan migrants along the border with the Spanish enclaves. Spain should halt all forcible returns of sub-Saharan migrants to Morocco until Morocco can guarantee their humane treatment, Human Rights Watch said.

"Large scale attempts to climb over the fences at Ceuta and Melilla pose genuine security concerns, and Spain has a right to secure its borders," Sunderland said. "But these challenges do not absolve Spain of its duty to respect human rights, including the right to seek asylum and to protect migrants against inhuman treatment."