What is the protocol for managing the entry of immigrants in the European Union?

African migrants walk along a border fence covered in razor wire between Morocco and Spain's north African enclave of Melilla

By Cristina Casabón

Migrants in large groups regularly attempt to scale the six-meter fences separating Ceuta and Melilla from Morocco. We have seen hundreds risking their lives during the week of August 11, 2014. Spanish maritime services confirmed last Tuesday that they had picked up close to 1,000 migrants in just 48 hours, in Ceuta. At the same time, approximately 700 people attempted to cross into the enclave of Melilla on August 12.

Human Rights Watch accused Spanish police on August 18 that those who were caught on the fence were treated with “excessive force” and were being illegally expelled back into Morocco. They uploaded a video footage which shows how uniformed officers beat migrants on the middle section of the fence, inside of Spanish territory. HRW also mentioned a report in The Huffington Post (Spanish edition) in which is said that at least three of those migrants were taken to Spanish hospitals because they had contusions, one of them as a result of a fall. On the other hand, El Diario has published another video footage released by NGO Prodein on August 13, showing how at least six immigrants are beaten with sticks or poles while being driven to the Moroccan side. According to the NGO, attacks occurred in Spanish zone and were perpetrated by Moroccan Auxiliary Forces and agents of Spanish Civil Guard.

Large scale attempts to reach Spain pose genuine security concerns, and Spain has a right to secure its borders, but this don’t absolve Spain of its duty to respect human rights and to protect migrants against inhuman treatment. As the HRW statement said: “Summary returns deprive migrants of the right to seek asylum or other international protection, and make it impossible for the Guardia Civil to conduct age screenings for undocumented migrant children, as Spanish law requires.”

Except for specific categories of persons, such as asylum seekers, it is the prerogative of states to decide who can enter a country and who cannot. Once an individual is in the country, however, he or she is entitled to enjoy a set of fundamental rights granted to all human beings irrespective of their migration status. Access to basic rights, such as education or healthcare, by migrants in an irregular situation differs significantly among EU Member States in law and practice.

Under the Spanish Foreigners or migration law, the Guardia Civil must escort any migrant apprehended entering Spain without permission to a National Police station for identification and to initiate deportation procedures. Migrants are entitled to receive the assistance of an interpreter and a lawyer throughout the process so that they have the opportunity to make a claim for international protection. In all cases Spain has to refrain from refoulement – the forcible return of anyone to a place where he or she faces a real risk of torture or inhuman and degrading treatment – to Morocco without due process; it could put the lives of the immigrants at risk as Moroccan security forces are still using violence against them.

Under Article 79 of the Treaty on the Functioning of the European Union (TFEU), the Union must “develop a common immigration policy” which ensures “fair treatment of third-country nationals residing legally in Member States” and prevents and combats “illegal immigration and trafficking in human beings”. While an express reference to fair treatment is made with regards to migrants residing legally, community policies concerning illegal immigration are framed in migration-control terms: there is no direct reference to the dignity or rights of persons who are the subject of measures aimed at preventing and combating illegal immigration. As the  European Union Agency for Fundamental Rights denounced in its report: “Fundamental rights of migrants in an irregular situation in the European Union”,  “a broad distinction between migrants who are in return or expulsion procedures and those who live  undetected in the Union has to be made. Whenever the Member States take steps which affect them, these must be transposed and implemented in full respect of fundamental rights.” 

This week we have heard the MEP González Pons talking about a new proposal on the table: to create a Commissioner for Migration who could ensure migration and mobility inside EU operates coherently. As Elizabeth Collett proposed in The Migration Policy Institute, “this Commissioner could be an appointed Council representative, a high-level figure capable of speaking to his or her own experience managing a complex, multi-faceted issue in an international setting.” This Commissioner would be a new way of working for the European Commission and it should be someone with an international humanitarian background who ensure that the EU institutions and Member States have an obligation to respect, protect and fulfil the human rights of all individuals during return proceedings.

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