Migrants climb over Melilla border fence | Photo: Picture-alliance/AP Photo/S.Palacios
Migrants climb over Melilla border fence | Photo: Picture-alliance/AP Photo/S.Palacios

The European Court of Human Rights (ECHR) has ruled that Spain was not in violation of European law when it returned two migrants to Morocco who, along with several dozen others, had scaled the border fence at the Spanish enclave of Melilla in northwest Africa in 2014.

The 17-member Grand Chamber of the ECHR ruled that there had been no violation of two articles of the European Convention on Human Rights when Spain returned the two migrants, who had crossed that border at Melilla in 2014 irregularly. The court thus accepted Spain's appeal against an earlier ruling in 2017 that said the expulsions had violated a ban on collective expulsions of aliens in the EU.

Spanish border authorities had returned the two migrants to Morocco immediately without performing an identification procedure. The migrants were also not asked to explain their personal circumstances such as their reasons to seek asylum. 

In its judgment, the court said the two migrants had placed themselves in an "unlawful situation" by not seeking refuge using correct channels, while "storming" the border fence instead; the ECHR said this behavior meant that Spain could not be expected to offer them protection.

The Spanish enclaves of Ceuta and Melilla separated from Spain by the Strait of Gibraltar and the Mediterranean Sea  Credit InfoMigrants

Melilla and Ceuta: unique EU external borders

The small enclave of Melilla is one of two EU land borders with Africa, from where migrants and refugees fleeing wars and poverty use various methods to try to make their way into EU territory. The other EU land border with Africa is the Spanish enclave of Ceuta, located almost 400 kilometers further west at the Strait of Gibraltar.

Melilla is fortified by three parallel fences that are up to six meters tall along its 13-kilometer border with Morocco.

In the past there have been repeated attempts by migrants from sub-Saharan Africa to scale the fences in order to reach the EU.

Gonzalo Boye, the lawyer for one of the two plaintiffs in the case, denounced the ruling, saying the decision implied that "any person who puts himself outside the legal framework ceases to be subject to the rights recognized" in the European Convention of Human Rights.

Council of Europe (CoE) Human Rights Commissioner Dunja Mijatovic meanwhile told the court that applying for asylum in Melilla through regular channels or reaching the official border post "seems practically impossible for Sub-Saharan Africans" anyway.

The two migrants in this case – one from Cote d'Ivoire and the other from Mali – were only "left with the option of climbing over the fence, taking the sea or using irregular means of crossing the border point," Mijatovic argued in a submission to the court.

Migrants in Melilla  Photo Por Causa Foundation

Widespread criticism against ruling

The ruling was further slammed by other human rights organizations as well. The European Centre for Constitutional and Human Rights (ECCHR) said that "instead of condemning Spain for failing its human rights obligations, the court is ignoring evidence from all human rights institutions."

It added that the Spanish practice of returning migrants crossing borders at Melilla and Ceuta irregularly amounted to "carte blanche for violent push-backs elsewhere in Europe" – referring indirectly to practices observed in the Balkans in recent years, particularly Croatia. CoE Human Rights Commissioner Mijatovic also warned that such wholesale expulsions of migrants were increasing across Europe.

Meanwhile Amnesty International spokeswoman Anna Shea said the judgment was "very disappointing:"

"These two men were marched back to Morocco as soon as they entered Spain, with no chance to explain their circumstances, no chance to request asylum, and no chance to appeal their expulsion.

"That the court has today decided that Spain was within its rights to do this, because the men entered the country irregularly, is truly a blow for refugees and migrant rights," she told the Agence France-Presse (AFP) news agency.

There are no official figures on how many migrants exactly have been turned around at Spain's Melilla and Ceuta borders; estimates speak of summary returns of "hundreds of migrants" at the enclaves, implying that the vast majority of those who attempt to cross over using irregular means are in fact deported back across the border.

With AP, AFP, dpa

•••• ➤ Also read: Europe's razor-wire borders in Africa

•••• ➤ Also read: Spanish NGOs accuse Spain of illegal migrant push-back


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