Back Spain: Legislation and practice on immigration and asylum must adhere to human rights standards

Visit to Spain
Madrid 16/01/2015
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“The proposed amendments to the Aliens Act aimed at legalising push-backs of migrants arriving in Ceuta and Melilla currently discussed in Spain are in clear breach of human rights law. The Spanish authorities should reconsider them and ensure that any future legislation fully abides by Spain's international obligations, which include ensuring full access to an effective asylum procedure, providing protection against refoulement and refraining from collective expulsions", said today Nils Muižnieks, the Council of Europe Commissioner for Human Rights, concluding a visit to Melilla and Madrid that started on 13 January.
The Commissioner stressed that these fundamental human rights safeguards can never be waived, irrespective of the challenges  that the management of migration flows may pose in certain contexts. “Migration is certainly a complex issue which requires a concerted European response, but this does not exempt individual States from their obligations. Spain has the right to establish its own immigration and border management policies, but at the same time it must uphold its human rights obligations, in particular those assumed under the European Convention on Human Rights and the 1951 Convention Relating to the Status of Refugees.”
During the visit to Melilla, the Commissioner received consistent information on push-backs, in some cases accompanied by excessive use of force, carried out by the Spanish border police (Guardia Civil). “Push-backs must stop and should be replaced by a practice which reconciles border control and human rights. This is not mission impossible, considering that the migration flows in Melilla currently remain at a manageable level. Any excessive use of force by law enforcement officials must be fully and effectively investigated and those found responsible must be adequately sanctioned."

The Commissioner warmly welcomes the establishment in November 2014 of an asylum office at one of Melilla's entry points to Morocco, which provides safer access to Spain for persons in need of protection. “This is particularly true for people fleeing the conflict in Syria, who are increasingly making use of this new possibility. However, for other people, particularly Sub-Saharan Africans, who may also have valid protection claims, this possibility is still out of reach and they have to take serious risks, including jumping over the fence that surrounds the city, to get in. I call on the Spanish authorities to strengthen the asylum system in Melilla so as to allow all persons in need of protection to access the territory safely and submit claims.” With asylum applications rapidly rising, the Commissioner urges the Spanish authorities to ensure that material and human resources, including adequate numbers of trained police officers, lawyers and interpreters, are made available.
The Commissioner also welcomes UNHCR's field presence in Melilla since July 2014 and its good co-operation with the authorities. However, he recommends adopting urgent measures to improve the current reception arrangements in Melilla, in particular as concerns the Centre for Temporary Stay of Migrants (CETI). “The overcrowding of the CETI is not a new issue, and at the time of my visit, it hosted 2 000 migrants -- four times the number of people it was designed for -- 20% of whom were children."
Despite the commendable work of the Director and the staff, these living arrangements are visibly inadequate and particularly inappropriate for children, women and persons belonging to other vulnerable groups. “The authorities should urgently remedy this situation, including by enhancing the infrastructure, providing additional personnel, lawyers and interpreters to explain to migrants their rights in a language they understand. Moreover, staff dealing with migrants should be better trained to identify and assist vulnerable people in need of protection, in particular victims of trafficking.”
Additionally, the Commissioner calls on the authorities to establish clear and transparent rules governing the transfers of asylum seekers from Melilla to the mainland and to streamline such transfers, in order to both ease overcrowding and address the uncertainty currently prevailing among migrants about their future.