The Supreme Court confirms that hot returns of migrants arriving by sea cannot be made

BarcelonaA ruling by the Supreme Court (TS) confirmed this Wednesday that the immigration law does not allow "hot returns" of migrants attempting to reach Spain by swimming. The court distinguishes these returns from the specific regulations for the Melilla fence, where migrants are not considered to have legally entered Spain until they cross the security line and are in the hands of agents, which allows them to be returned immediately to the Moroccan authorities. With this ruling, the court establishes a precedent based on the case of an Algerian who was trying to reach Ceuta by swimming and was handed over to the Moroccan authorities.

It was November 14, 2024, and he was with two other people who were also trying to reach Ceuta by swimming. The affected individual appealed the administrative decision by which he had been returned to Morocco, alleging that the action had been carried out without any resolution and without allowing him the right to legal assistance and international protection. The appeal was approved by a court in Ceuta and the High Court of Justice of Andalusia, which ruled in favor of the affected individual. Both judicial instances argued that migrants arriving by sea, as in this case by swimming, do not cross a border containment element such as a fence. This excludes them from the part of the law that stipulates that Spanish authorities can reject migrants detected at the Ceuta and Melilla border while they are trying to overcome containment elements to enter the State.

Open an administrative procedure

Jordi Naya, from Arrels Advocats, points out to ARA that the sentence is positive, because "the Supreme Court has said that hot returns made to people trying to enter by sea cannot be endorsed: it means that they will have to be opened an administrative procedure, where the foreign person has the right to legal assistance and an interpreter so that their personal situation can be examined, for example if they are a minor or request international protection". Finally, the administrations will decide whether the person is returned or not, but the procedure will have minimum guarantees.

As Naya recalls, there are two systems for "non-acceptance" of migrants at the borders: entry denials at border crossings like airports, because access requirements are not met, or returns, in non-border areas like the authorized crossings on the fences of Ceuta and Melilla. In both cases, an administrative file must be opened. But when an immigrant tries to cross through an unauthorized place, for example by jumping the fence of Ceuta and Melilla, in practice, if the police catch them, they are returned directly without any procedure: this is what is known as a "hot return". What the Supreme Court has decided is that this cannot be done when the person is in the water. However, the magistrates add that the authorities could return migrants attempting to arrive by sea if containment elements were established in the water.