(CN) – In a reversal, Europe’s human rights court on Thursday found Spain did not violate the rights of two African asylum-seekers when it sent them back to Morocco after they climbed a border fence around a Spanish enclave in North Africa.
The case involves a long-running border struggle between scores of asylum-seekers trying to gain entry – often unlawfully – into two heavily guarded and fenced Spanish enclaves in Morocco called Ceuta and Melilla.
In 2017, a panel of seven judges with the European Court of Human Rights ruled that Spain violated the human rights of two men – one from Mali, the other from Ivory Coast – after they stormed a security fence in August 2014 along with about 500 other asylum-seekers. The two men reached the top of a fence and then were sent back to Morocco by Spanish officers without having their asylum claims heard.
But on Thursday, the court’s 17-judge grand chamber, the court’s highest chamber, ruled that Spain did not run afoul of human rights laws by sending the two men back. A ruling from the grand chamber is final. One judge dissented in part.
On Aug. 13, 2014, the two men – who are referred to by initials in the legal proceedings – were among about 70 people who got to the top of an inner fence. They sat there for several hours before they were helped down by Spanish Guardia Civil officers. Once they were on the ground, Spanish officers handcuffed them and handed them over to Moroccan officials.
They claim they were not given a chance to explain their circumstances and did not receive legal assistance before being turned over to Moroccan authorities. Once in Moroccan custody, they said they were refused medical help and then dropped off in Fez, about 190 miles away, and left to fend for themselves.
The men argued that being expelled en masse without a chance to appeal for asylum was a violation of their human rights. They also argued Spain was enforcing a systemic policy of removing asylum-seekers and refugees without processing their claims.
The man from Mali, known as N.D., was born in 1986 and said he left his home country in 2012 due to armed conflict. In 2012, Mali was gripped by an insurgency that continues to rage today. The man from Ivory Coast, known as N.T., was born in 1985.
Both men were living in a camp made up of refugees and immigrants on Mount Gurugu near Melilla.
Their case was taken up by the European Center for Constitutional and Human Rights. The center said Thursday’s ruling “shamelessly” gives European countries the right to forcefully push refugees and asylum-seekers away from Europe’s borders.
But in its ruling, the grand chamber said the two men could have applied for visas or asylum at Spanish immigration offices in Africa, such as at a border crossing in Melilla, and had no need to resort to scaling the fence as part of a large group of people seeking to force their way in.
The court said the asylum-seekers “placed themselves in jeopardy by participating in the storming of the Melilla border fences.”
The court said “they did not make use of the existing legal procedures for gaining lawful entry to Spanish territory” and that Spanish authorities could not be faulted for not processing their asylum claims after they stormed the fence.
The court said Spanish authorities were within their right to refuse entry to potential asylum-seekers “who have failed, without cogent reasons” to seek entry through an official border crossing.
Lawyers for the two men argued that Spain had made it extremely difficult for African asylum-seekers to apply for protection or visas at the Spanish enclaves. Moroccan officials allegedly made it hard for Africans to even reach the border posts into Spain’s enclaves because of passport checks and racial profiling. The two men said they were chased away by Moroccan officials when they tried to approach the Spanish border.
The court, though, said there was not enough evidence to prove this and, even if true, Spanish authorities were not responsible for the actions of Moroccan officers.
The grand chamber added that even if Moroccan officials were violating peoples’ rights Spain is not obligated to “bring persons who are under the jurisdiction of another state within its own jurisdiction.”
The court said its ruling should not be interpreted as giving countries the green light to force undocumented immigrants back to places that are not safe, a legal principle known as non-refoulement.
The court also praised Spain for doing more to handle asylum requests at its North African enclaves by increasing the number of border crossings.
Wolfgang Kaleck, general secretary of European Center for Constitutional and Human Rights, blasted the ruling as ignoring the mistreatment asylum-seekers and refugees face at Europe’s borders.
“The decision completely ignores the reality at European borders, and particularly the situation of Sub-Saharan Africans at the Spanish-Moroccan frontier,” he said in a statement. “Moreover, it will be perceived as a carte blanche for violent push-backs everywhere in Europe.”
He added: “Push-backs at the border to Morocco are a longstanding Spanish practice, which has become a model for other states along the European Union’s external land borders.”
For more than a decade, Europe has seen hundreds of thousands of refugees and asylum-seekers fleeing war and poverty to seek a better life in Europe. But since 2015, when the number of refugees dramatically grew due to the civil war in Syria, European countries have taken drastic measures to keep immigrants out. The issue of immigration is a major political and social problem that has left Europe divided on how to handle it.
This case was brought to the court in February 2015. Spain appealed the 2017 ruling to the grand chamber.
(Courthouse News reporter Cain Burdeau is based in the European Union.)