Spain’s Constitutional Court backs express deportations

The ruling gives the government the legal backing to continue to send migrants straight back to Morocco instead of processing them first in Spain

Civil Guard officers removing two migrants who had jumped the border fence in Melilla in 2014.
Civil Guard officers removing two migrants who had jumped the border fence in Melilla in 2014.Antonio Ruiz
José María Brunet

The Spanish Constitutional Court on Thursday upheld most of the Public Safety law, popularly known as the “gag law,” including the immediate removal of migrants who try to enter Spanish territory by crossing the border fence in Spain’s North African exclave cities, Ceuta and Melilla.

The ruling – approved with nine votes in favor and two against – gives the Interior Ministry the legal backing to continue to send migrants immediately back to Morocco instead of processing them first in Spain, a process known as an “express deportation.” The court made only two exceptions to this process: if the migrant is underage or belongs to a vulnerable group, for example, an elderly person or pregnant woman – cases rarely seen in attempts to jump border fences.

The ruling does not stop the Spanish government from changing the law, but does make it clear that it can carry out express deportations on migrants who try to cross the border, saving the aforementioned exceptions.

Migrants showing their injured hands after jumping the border fence in Ceuta in 2018.
Migrants showing their injured hands after jumping the border fence in Ceuta in 2018.Joaquín Sánchez

To legalize express deportations, in 2015 the Spanish government – led by then-Prime Minister Mariano Rajoy of the conservative Popular Party (PP) – added an additional article to the Foreigners’ Rights and Freedoms Law. This article stated that “foreigners who are detected on the borderline of the territorial demarcation of Ceuta or Melilla while trying to overcome border-control elements to irregularly cross the border may be rejected to stop their illegal entry into Spain.”

The court’s ruling on Thursday is what is known as an “interpretation in keeping with” the letter of the law, with regards to this specific article. The court also made clear that its decision was based on the ruling from the European Court of Human Rights (ECHR), which found in February that Spain’s deportation of two sub-Saharan migrants who jumped the border fence separating Morocco from Melilla in 2014, with around 70 others, did not violate the European Convention on Human Rights. This ruling overturned the ECHR’s previous sentence in 2017 which found in favor of the two migrants.

In its sentence on Thursday, the Constitutional Court found that “refusing [entry] at the border is a coercive act that aims to immediately reestablish the legality breached by foreigners’ attempt to irregularly cross this specific land border.” The court added that express deportations are constitutional if they are carried out “respecting international norms on human rights” and within “judicial control.”

Other decisions

The controversial gag law, approved by the PP in 2015, was criticized from day one for impeding freedom of expression because it established fines for doing things like protesting in front of parliament or taking and sharing photographs of police officers. The opposition claimed it was a way to clamp down on the street protests taking place at the time against political corruption and mismanagement of the economic crisis.

With respect to these issues, the Constitutional Court ruled that it was unconstitutional to issue fines for taking and sharing images of police officers, arguing that this amounted to censorship. This means that the “unauthorized use” of such photos will no longer be considered a serious offense.

On the question of protests, the court found that demonstrations outside of Congress may be allowed as long as they do not represent a “serious disruption to public security.” It also upheld strip searches if there are “rational signs” that the individual could be carrying “objects” to use for a “crime or offense.”

Immigration crisis in the Canary Islands

The decision comes as Spain’s Canary Islands struggle to manage the surge in migrant arrivals, with 18,000 reaching the archipelago so far this year. The regional authorities in the Canary Islands want the Spanish government to transfer the migrants to the mainland to ease the pressure on the region’s shelters, which have reached breaking point. But the Interior Ministry has ruled out this option, arguing it would create a so-called “pull effect,” encouraging more migrants to irregularly enter Spain. The ministry also warned that the plan would be rejected by Europe, which wants to stem the flow of undocumented migrants to the continent.

English version by Melissa Kitson.

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