“Hot returns”: are push-backs at Europe’s land borders legal?

Spain’s practice of pushing back migrants from its North African enclaves to Morocco is controversial. But is it allowed by law?

In June, when around 2,000 men attempted to enter the Spanish enclave of Melilla from Morocco, at least 27 people lost their lives and many were seriously injured in the ensuing violence.

Dozens of people managed to cross the high fence surrounding Spanish territory and were taken to temporary reception centers for migrants. Others were “pushed back” by Spanish authorities, according to human rights groups – meaning they were immediately deported to Morocco without the chance to seek asylum.

UN experts and others have expressed concern over the practice, which they say violates European human rights law. But in fact, according to the European Court of Human Rights (ECHR), pushbacks at Europe’s land borders, or “hot returns”, do not necessarily violate the European Convention on Human Rights.

Decisive case

This was decided in 2020 in the case of ND and NT v. Spain, brought by two men, one from Mali and the other from Ivory Coast, who had scaled the fence surrounding the Spanish enclave of Melilla.

The court said the two could have applied for international protection at a border crossing point or at a Spanish embassy. According to migrants and observers, however, black migrants from sub-Saharan Africa are prevented from approaching border posts and, except in cases of family reunification, there is no procedure for seeking asylum in an embassy or consulate. Spanish abroad.

The two men had also acted illegally by crossing the border in a large group and by force, according to the court. Therefore, they were responsible for their inability to assert their rights.

Carte blanche warning

Spain has been carrying out hot returns (devoluciones en caliente) since 2005. Following the 2020 ECHR judgment, some legal experts have warned that they have finally been given the green light.

In Melilla, it is certainly standard procedure that as soon as migrants set foot on Spanish territory, they are sent back to Morocco without further procedure or the possibility of seeking asylum.

This also happened on June 24, 2022, according to the testimonies of migrants. A young Sudanese, Atroon, who had already tried 10 times to enter the enclave, said he was forcibly deported to Morocco after reaching EU soil. “They just send you back to Morocco. Sometimes they even allow Moroccan police to pick you up,” Atroon said. DW. “Most people think they’ve succeeded once they’ve crossed the border. But often they push you away.”

This practice was also observed by a journalist Javier Angosto, who told DW that he had seen 30 to 40 migrants deported to Morocco after managing to reach Spanish territory.

Moreover, the head of government of Melilla, Eduardo de Castro, conceded that all the migrants who tried to cross the fence on June 24 would not have had the possibility of applying for asylum.

Atroon, from Sudan, said he was in Spanish territory and wanted to seek asylum when he was deported by Moroccan security forces | Photo: DW/Ruben Garcia

‘Nothing to lose’

Even though the judgment of the European Court of Human Rights is considered to have justified the hot return policy, Spain remains bound by other legal obligations, such as the ban on refoulement. In the case of the two migrants ND and NT, “Spain was simply lucky that of all the people who were sent back… the plaintiffs could not prove in court that they had a need of protection,” says Anna Lübbe, professor of public law in Fulda, Germany.

It follows that if any of the mostly Sudanese and Chadian men who were deported on June 24 were victims of persecution, torture or other serious human rights violations, their deportation from Melilla would be unlawful.

Atroon, who was planning his next attempt to jump the Melilla fence when he was interviewed by DW, declares that he does not want to return to his country of origin under any circumstances. “You either have to join the army or look for illegal work,” he says. “I will try again and again. We have nothing more to lose.”

Joan J. Holland