fences to asylum
TRANSCRIPT
Fences to asylum: The role of international law in protecting the right to
access to asylum at Ceuta and Melilla
María Valles
Conference “Access to asylum”
Monash University Prato Centre, Italy
29 May 2014
Fences to asylum: The role of international law in
protecting the right to access to
asylum at Ceuta and Melilla
Introduction
Starting points
low number of asylum claims in
Spain
legal challenges on access to
international protection at land
EXTERNAL borders
Structure of the paper:
1) SPAIN as country of asylum
2) Ceuta and Melilla: the only
external EU land border in Africa
3) Seeking asylum at the only EU
land border with Africa
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1) Spain as country of asylum
2.565 asylum applicants
3rd lowest percentage per million inhabitants among EU Member States
*(above Portugal and Estonia )
2012 4.485 asylum
applicants
6th lowest percentage per million inhabitants among EU Member States
*(above Czech Republic, Latvia , Portugal, Estonia, Romania, Slovakia)
2013
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2) SPAIN (Ceuta and Melilla): the only
EU land border in Africa
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Spanish enclaves in North Morocco
CEUTA
• Spanish since 1580
• Population: 82,000 (2012)
• Area: 19 square Km
• Mediterranean coast
• Border with Tetuan
(Moroccan province)
MELILLA
• Spanish since 1496
• Population: 78,400 (2012)
• Area: 12,5 square Km
• Mediterranean coast
• Border with Nador
(Moroccan province)
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CEUTA MELILLA
Area: 19 Km Area: 12,5 Km
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Legal framework applicable to the
enclaves
• “An integral part of the Spanish nation with
indissoluble unity”
• Enjoy the same constitutional status than the
rest of provinces of Spain
• Became european cities when Spain joined
European Community in 1986
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Are the enclaves part of Schengen area?
• Spain signed Schengen implementing Convention in 1991
• The country introduced a specific declaration in the Final Act to
the Agreement to regulate these borders, historically very
permeable
• According to article 36 of Schengen Borders Code this
Declaration is applicable today:
“The provisions of this Code shall not affect the special rules applying to the
cities of Ceuta and Melilla”
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Spanish Declaration to the Schengen
implementing Convention
• “Declaration on the towns of Ceuta and Melilla
• (a) The current controls on goods and travellers entering the customs territory of the European Economic Community from the towns of Ceuta and Melilla shall continue to be performed in accordance with the provisions of Protocol 2 of the Act of Accession of Spain to the European Communities.
• (b) The specific arrangements for visa exemptions for local border traffic between Ceuta and Melilla and the Moroccan provinces of Tetuan and Nador shall continue to apply.
• (c) Moroccan nationals who are not resident in the provinces of Tetuan or Nador and who wish to enter the territory of the towns of Ceuta and Melilla exclusively shall remain subject to the visa requirement. The validity of these visas shall be limited to these two towns and may permit multiple entries and exits ("visado limitado múltiple") in accordance with the provisions of Article 10(3) and Article 11(1)(a) of the 1990 Convention.
• (d) The interests of the other Contracting Parties shall be taken into account when applying these arrangements.
• (e) Pursuant to its national law and in order to verify whether passengers still satisfy the conditions laid down in Article 5 of the 1990 Convention on the basis which they were authorised to enter national territory upon passport control at the external border, Spain shall maintain checks (on identity and documents) on sea and air connections departing from Ceuta and Melilla and having as their sole destination any other place on Spanish territory. To the same end, Spain shall maintain checks on internal flights and on regular ferry connections departing from the towns of Ceuta and Melilla to a destination in another State party to the Convention”
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The border fences
• Both cities have a fence that divide the cities from Morocco
• The fences were first erected in 1993 in Ceuta (8.2 Km) and in 1996 in Melilla (10.5 Km)
• To fight against new phenomenon of illegal immigration from Sub-Saharan countries arriving in Morocco as a transit country in their way to Spain or other country of Europe
• In 2005 two massive assaults to the fences, as a result of which at least 14 died, raised attention on the situation of migrants trying to cross Morocco into Ceuta and Melilla worldwide , several measures to strength the surveillance were taken . Among those, the height of the fences was increased from 3 metres to 6 metres.
• In 2014 after 15 people died trying to get Melilla by sea after try to climb the fence
• In 2014 and 2013 significant increased of attemptempts in Melilla, mucho more media attention.
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Figures access to asylum at Ceuta and
Melilla
• Asylum applications in MELILLA: 33 in 2012 and 41 in 2013
• Figures of the number of claims in 2014 are not available yet, but according to
UNHCR by the 1st of May 2014 figures of asylum claims of Syrians are 0 (it should be noted that there are at least 700 Syrians at the CETI).
• Asylum applications in CEUTA: 184 in 2012 and 325 in 2013
• In 2014, according to UNHCR by the 1st of May asylum claims of Syrians in Ceuta
up to May have been 27 (18 have renounced) (there are 114 in the CETI)
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3. Seeking asylum at the only EU land border with
Africa: human rights implications
I. Before crossing the fences:
• Is Spain exercising jurisdiction by funding and encouraging Morocco to prevent refugees to reach its soil, being, therefore, responsible of potential violation of the right to leave a country and the right to access to asylum?
II. At the fences while trying to enter to Spanish-EU soil: access to asylum procedures
• Is Spanish and EU law fully applicable in the events of people trying to obtain protection by climbing the barriers, including the measures to strength the “effectiveness” of the fences, such as increase their height or add razor wire on their top?
III. Within Ceuta or Melilla: the “sweet prision”. Violation of right to freedom of movement o deprivation of liberty?
• Might Spanish authorities be violating the right to freedom of movement of asylum seekers, recognized by the ICCPR or the Fourth Protocol to ECHR, by preventing them to leave the Enclaves, arguing the territorial exception of Article 36 of Schengen Code?
•
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1st step: Before crossing the fences: Spain and EU´s
international obligations in relation to refugees who have not
reached EU´s territory yet (I)
• “active” measures of States outside their borders, such as interception at the sea, engage international responsibility
• Could international responsibility also be triggered by “indirect” actions such as funding or political support?
• Yes, if we can argue that Spain or EU is exercising jurisdiction
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1st step: Before crossing the fences: Spain and EU´s
international obligations in relation to refugees who have not
reached EU´s territory yet (II)
• Potential breach of the right to leave a country?
• A central question in international refugee and human rights law is the extent to which the obligation on states to refrain from deport a person also engages a duty to allow them to arrive at the borders of the state in order to seek protection (Council of Europe)
• Article 13.2 of the Universal Declaration of Human Rights makes it clear that the right to leave a country is not limited to citizens, it applies to anyone and everyone no matter where he or she is. This wording is repeated in Article 12.2 ICCPR and elsewhere in human rights treaties which include the right to leave a country, including one’s own.
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2nd step: At the fences while trying to enter to
Spanish-EU soil: access to asylum procedures
(I) Legal issues on Spanish measures physically preventing people from climbing the fences or pushing back those who have already crossed
• Fences are Spanish territory
• Article 13 Schengen Borders Code “refusals to entry shall be without prejudice to the application of special provisions concerning the right to asylum”
• Prohibition of colletive expulsions (art 4 of Protocol 4 ECHR/ art 19 EU Charter)
• Principle of non-refoulement (Return Directive- preambule (8) MS are allowed to reutn illegally staying (…) but only provided that in this country are fair and efficient asylum systems in place”
• Right to leave a country (art. 12 (2) ICCPR and art 2 of Protocol 4 of ECHR)
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2nd step: At the fences while trying to enter to
Spanish-EU soil: access to asylum procedures (II)
(II) Lack of applicability of asylum border procedure
• Spanish national law
• the Directive on asylum procedures:
many applications for international protection are made “at the border or in transit zone of a Member State prior to a decision the entry of the applicant” (Preamble (38))
“where there are indications that third-country nationals (…) present at border crossing points, including transit zones, at external borders, may wish to make an application for international protection Member States shall provide with information on the possibility to do so” (Article 8 (1))
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3rd step: Within Ceuta or Melilla: the “sweet prison”
(I)
What is happening?
Since aprox January 2010, arguing its obligations under Schengen regulations, Spain is preventing asylum seekers, already admitted to the ordinary procedure, documented by Spanish authorities and waiting for a decision on the merit of their international protection claim, from leaving Ceuta or Melilla to go to the Spanish mainland at the Peninsula.
Right to freedom of movement
• Article 12 ICCPR / Article 2 Protocol Four ECHR
• the Directive 2013/33/EU on standards for the reception of applicants for international protection states that they “may move freely within the territory of the host Member State” (article 7 (1)
• It also establishes that when a Member State assigns an area of residence for them it should be decided “for reasons of public interest or public order” and Member States have to provide for “the possibility of granting applicants temporary permission to leave the place of residence” article 7 (4) . There is not any legal provision in Spanish law to regulate what is happening in the enclaves
• EU Charter on Fundamental Rights article 45 (2) leaves the door open by saying “in accordance with Treaties”
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Comments by the Spain on the report of the Special Rapporteur on contemporary forms of racism, Mission to Spain
• “What the Special Rapporteur refers to as administrative hurdles for asylum seekers in Ceuta in Melilla is based on the exceptional situation of these two Autonomous Cities regarding the Schengen regulations, although the Government acknowledges that this interpretation has been challenged in several decisions by the Superior Court of Justice of Andalusia”
May, 2013
Right to effective remedy? Art 6 ECHR
Right to good administration? Art 41 EU Charter
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3rd step: Within Ceuta or Melilla: the “sweet prison”
(II)
Melilla
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CONCLUSIONS • International law may play crucial role in protecting refugees and asylum
seekers in Spain
• Spain could be exercising jurisdiction by funding and encouraging “preventing
measures” of Morocco and interceptions, without checking whether this
country is fulfilling international standards
• Spanish practice of preventing people from cross the fences and returning
them without identifying them is contrary to the right to access to asylum
• Spanish different treatment of asylum seekers in Ceuta and Melilla preventing
them to leave the enclaves until they do not obtain a final response to their
claims are:
Not justified under Schengen regulations
Illegal under EU law and IHRL
Amount to a violation at least of the right to freedom of movement IHRL
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Further information
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Facts in 2014
• Ceuta and Melilla
• Collective expulsions, push-baks without any procedure
• https://www.dropbox.com/sh/9cvtk1u3ihfbj15/AABNAavRJVd1e3vEElggv7dha/Devoluciones%20ilegales.mp4
• Melilla
• Moroccoan forces entered in Spanish territory in order to detain people and take them back to Morocco http://politica.elpais.com/politica/2014/03/31/actualidad/1396266629_039724.html
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Push-backs
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http://vimeo.com/93511041
http://www.eldiario.es/desalambre/VIDEO-inmigrantes-Guardia-Civil-
Policia_0_254424625.html
Interceptions already in Spanish territory
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Syrians arrive in France crossing by
Melilla
• UNHCR France Press Release
• The long journey from their war-torn country to France was full of danger and littered with physical and administrative obstacles. Most of the Syrians come from the cities of Homs, Aleppo and Latakia. They fled to neighbouring Lebanon, and then slowly made their way across North Africa to the Spanish enclave of Melilla. Some had valid travel documents, but others had to use stealth to get across heavily guarded borders to reach safety in Europe.
• http://www.unhcr.org/535f68526.html
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And just yesterday…
• http://www.aljazeera.com/news/europe/2014/
05/hundreds-migrants-storm-into-spain-
2014528123443981704.html
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Spanish Asylum Act
• It was not until 2009 when Spanish asylum legislation were adapted to the Common European Asylum System, though the Law 12/2009 on right to asylum and subsidiary protection, approved on the 30th of October.
• The Law 12/2009 establishes only one system for assessing both refugee status and subsidiary protection. The Asylum law establishes two different procedures:
• (1) Border procedure: for claims issued at a border point, also applicable to claims filled at Detention Centres for Foreigners . Although the time frame to serve a decision is very short (4 day for the first decision, +2days for the appeal, +2 days for the decision), Spanish authorities are allowed to decide on the merits at this stage.
• (2) Procedure within territory: for claims issued in Spanish territory. If the applicant is in Madrid the application should be filed at OAR´s office, if he or she is in other part of the country the application can be filed at police stations. Once admitted, claims can be processed under the accelerated procedure or the ordinary procedure. The only difference between the two is the time frame to decide, six months for the ordinary procedure and three months for the urgent (or accelerated) one.
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