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Spain: an amendment to the Immigration Act will lead to violations of refugees' rights
Spain, action created 28.11.2014
The Spanish government submitted a draft of an amendment to the Immigration Act, that would facilitate the collective expulsions of migrants, refugees and asylum-seekers from the border areas of the two Spanish enclaves in North Africa - Ceuta and Melilla. As such, those who are denied the right to seek asylum are at risk of serious human rights violations.
On October 2, the ruling Popular Party Parliamentary Group (Grupo Popular Parlamentarium) submitted an addendum to the Law on Public Security (Ley Orgánica para la Protección de la Seguridad Ciudadano), which is currently being discussed in Spanish Congress. This amendment (amendment no. 191 on public security initiative 121/105) aims to amend Law 4/2000 on the rights and freedoms of foreigners in Spain and their integration, so that it will now be possible to refuse migrants, asylum seekers and refugees coming to the borders of two Spanish enclaves in North Africa - Ceuta and Melilla.
The text of the said amendment reads: "Foreigners who are discovered on the border regions of Ceuta and Melilla, whether or not they attempted to illegally cross the border in secret or overtly, will be prevented from entering Spanish territory."
In addition, no details are given on how to be a officially recognized at the border or how the "rejection at the border" would take place. There is also no mention of any safeguards against human rights violations. These shortcomings in turn prevent asylum seekers access to asylum procedures in Spain, which may lead to a breach of the non-refoulement obligation. Migrants, asylum seekers and refugees risk serious human rights violations when they are returned to their country of origin (such as Morocco). Approval of this amendment to the Immigration Act would also constitute a violation of the prohibition of collective expulsions, denial of the right of appeal and the return of victims of human rights violations in countries where such violations occur.
Amnesty International, along with other human rights organizations, documented excessive use of force and mass expulsions taking place on the borders of two Spanish enclaves in North Africa, Ceuta and Melilla. There, migrants and refugees are forced to return back to Morocco by the Spanish Civil Guard.
On February 6, 2014, at least fifteen migrants from Morocco drowned at Ceuta shore after the Spanish Civil Guard fired rubber bullets and tear gas in an attempt to prevent them from entering Spanish territory. Judicial investigation of these deaths is still ongoing. That same day, twenty-three people who managed to swim to a Spanish beach were immediately returned to Morocco, apparently without any formal administrative proceedings.
The Spanish Interior Minister said that the deportation of these people are in accordance with the law, because these people have not crossed the border into Spain. Such a statement shows that the Spanish authorities are willing to change the definition of the Spanish border, on a case by case basis so as to avoid fulfilling its international obligations. The Spanish government, for example, has repeatedly claimed that the area between the triple border fence at Melilla and Morocco is Spanish territory in order to justify the ongoing return of migrants and refugees from the enclave in Morocco. This is despite the verdict of the Spanish court, which confirmed that the area between the fence belongs to Spain. However, regardless of where the extrusion occurs, the Spanish Civil Guard exercises their state power against migrants and refugees.
These statements are intended to reduce Spain's liability for events that take place on its territory, and raises serious concerns involving the rejection of these migrants on Spain's borders with the introduction of the amendment. This is pressing not only for migrants and refugees that are located on the Spanish border, but also to those who have already entered the territory of Spain.
Expulsion carried out in a manner that denies individuals the possibility of appeal and an explanation of their personal circumstances, is prohibited under international law and could lead to a breach of the right to seek asylum and the non-refoulement obligation. This amendment is also a breach of the European Parliament and Council Regulation (EC) no. 562/2006 of 15 March 2006 which establishes a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as well as a breach of European Parliament and Council 2013/32 / EU of 26 June 2013 on common procedures for granting and withdrawing international protection status, European Convention on human rights, and Protocol no. 4 of this Convention, the International Covenant on Civil and Political Rights and the Charter of Fundamental Rights of the EU.
The present amendment provides additional exemptions from the current Spanish legislation on immigration, which prohibits the speedy return of migrants and guarantees the right to legal advice and interpretation during expulsion procedures. Law 12/2009 on the right to asylum and subsidiary protection guarantees all persons on the territory of Spain the right to apply for international protection. "Failure on the borders", as introduced by this addendum, would prevent migrants and asylum seekers coming to the borders of Ceuta and Melilla these legal rights.
The ruling Popular Party, which has an absolute majority in both houses of parliament (Congress and Senate), presented a proposal for changes in immigration law, when it was possible to introduce amendments to the draft law on public security. Submission of the amendment at this stage of the legislative process makes it impossible to meaningfully involve civil society in the debate on the Bill and makes it difficult to assess the impact of the necessary amendments to the law on human rights. The draft law on public security is being discussed through legislative processes, and can be definitively adopted in January 2015.