France may not use anti-terrorism measures to send migrants back to Spain, EU court finds

EU Court of Justice says countries that have reinstated border controls cannot use them for pushbacks

Álvaro Sánchez
French police intercept migrants in the border town of Irun.
French police intercept migrants in the border town of Irun.JAVIER HERNÁNDEZ

The Court of Justice of the European Union has ruled against a system used by France to stop irregular immigrants at the border with Spain, where they are sent back invoking anti-terrorist measures.

On Tuesday, the Luxembourg court entered a judgment that finds that an internal border of a member state where border control has been reintroduced cannot be equated with an external border.

We have always defended that these readmissions violate immigrants’ rights if they do not follow procedure

Iker Barbero, Basque Country University

This means that the border controls reinstated by Paris to fight terrorist threats cannot be used to push back undocumented migrants into neighboring countries.

France sends thousands of border-crossers back to Spain every year: according to the French border police (PAF), 9,038 migrants were returned between January and October 2018, representing a 26% rise from 2017. Many of these pushbacks are conducted without legal safeguards.

Spain has applauded the court’s decision. Sources at the Interior Ministry said that the EU judgment reflects “the position that Spain has always defended at bilateral meetings,” and that Paris will now have “to apply the existing readmission agreement between both countries.”

Border controls

The Europe without borders that was conceived over 30 years ago in the small town of Schengen, in Luxembourg, now coexists with selective border checks introduced by several member states, either to deal with immigration flows or to combat terrorism.

France sends thousands of border crossers back to Spain every year

Ever since the terrorist attacks against the Bataclan theater in Paris in November 2015, France has had police on its borders. But besides jihadist surveillance, the increased patrolling along the border with Spain’s Basque Country has had another effect: an exponential rise of irregular migrants who are being sent back to Spain in record time.

But the EU judges found that member states who have reintroduced border controls for security reasons cannot use this as an argument to treat an internal border like an external one. It follows that if France wants to expel an irregular migrant from its territory, it needs to strictly follow bilateral agreements or the European Returns Directive. Unlike fast-track return methods, European law gives individuals between seven and 30 days to voluntarily leave the country before the state may activate deportation procedures.

The court’s decision is based on the case of a Moroccan national named Abdelaziz Arib who was stopped on French territory near the border with Spain as he was traveling on a coach from Morocco. He was held in police custody, but an appeals court ordered his release. The case reached all the way to the Court of Justice of the EU, which was asked whether the legal safeguards of the Returns Directive must be applied even when border controls have been reintroduced. The court believes that they do.

Relief in Spain

The decision was welcomed by Spain, where central and Basque authorities have been trying to stop the pushbacks through conversations with French officials. When Spain’s Interior Minister Fernando Grande-Marlaska met with his French counterpart, Christophe Castaner, in November 2018, they discussed the issue.

Migrant support groups such as SOS Racismo have warned that the thousands of migrants stuck in the Basque Country could soon overwhelm the region’s social services.

Iker Barbero, a professor at the University of the Basque Country who has been studying these immigration policies, says that the EU court’s decision showcases France’s punitive approach to irregular immigration.

“We have always defended that these readmissions violate immigrants’ rights if they do not follow procedure,” said Barbero, adding that the French border checks aimed at fighting terrorism are not being conducted randomly. “They only target people of color or those of a specific race. That is contrary to the principle of non-discrimination.”

English version by Susana Urra.

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