The Supreme Court confirms that hot returns cannot be made to migrants arriving by sea
The sentence distinguishes between attempts to arrive by swimming and those that do so by jumping the Melilla fence.
BarcelonaA ruling by the Supreme Court (TS) confirmed this Wednesday that the foreign law does not allow hot returns for migrants trying 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 overcome the security line and agents, which allows them to be immediately returned to Moroccan authorities. With this ruling, the court sets a precedent based on the case of an Algerian man who was trying to reach Ceuta by swimming and was handed over to the authorities of Morocco.
It was November 14, 2024, and he was with two other people who were also trying to reach Ceuta by swimming. The affected person 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 endorsed by a court in Ceuta and the High Court of Justice of Andalusia, which ruled in favor of the affected person. Both judicial instances argued that migrants arriving by sea, such as by swimming in this case, do not overcome a border containment element such as a fence. This means they are excluded from the section of the law that stipulates that Spanish authorities can reject migrants detected at the Ceuta and Melilla border while they try to overcome containment elements to enter the State.
Jordi Naya, from Arrels Advocats, points out to ARA that the ruling 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 an administrative procedure must be opened for them, 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 are requesting 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 borders: denials of entry at border crossings like airports, because access requirements are not met, or returns, in non-border locations 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. Nevertheless, the magistrates add that the authorities could return migrants trying to arrive by sea if containment elements were established in the water.
