The Spanish Supreme Court on Rejection at the Borders of Ceuta and Melilla: What About Human Rights at Sea?
Ceuta and Melilla are Spanish Autonomous Cities located on the northern coast of Africa and bordering Morocco. They occupy a singular position within the European legal order. They simultaneously constitute the external borders of Spain, the European Union, and the Schengen Area, making them the only land frontiers between Europe and Africa. For decades, these borders have been among the principal entry points through which migrants and asylum seekers attempt to reach Europe, becoming a site of recurrent pushback practices and repeated incidents involving the loss of human life.
Against this backdrop, in 2015 Spain adopted an Organic Law on Public Security, which amended the legislation governing the rights and freedoms of foreigners to establish a special legal regime for the borders of Ceuta and Melilla. The reform introduced a Tenth Additional Provision creating the administrative figure of rechazo en frontera (rejection at the border), providing that foreign nationals detected at the perimeter while attempting to enter Spain irregularly may be rejected in order to prevent their unlawful entry into Spanish territory.
The reform attracted widespread criticism from scholars and international human rights bodies. They argued that it effectively legalized the practice of pushbacks at the land borders of Ceuta and Melilla in breach of the principle of non-refoulement and the prohibition of collective expulsions under Article 4 of Protocol No. 4 to the European Convention on Human Rights. These concerns were reinforced by the Grand Chamber’s judgment in N.D. and N.T. v Spain, which reversed the Chamber’s 2017 finding that Spain’s immediate return of migrants at the Melilla border had violated the prohibition of collective expulsions. The judgment in N.D. and N.T. was widely regarded as marking a significant shift in the European Court of Human Rights’ approach to the protection of migrants’ rights at Europe’s external borders (see Lübbe). At the domestic level, the Spanish Constitutional Court upheld the constitutionality of the regime in Judgment 172/2020.
Since then, the legislative framework has remained unchanged and its judicial interpretation has seen little further development. The Spanish Supreme Court’s judgment of 29 June 2026 marks the first significant clarification of the legal regime governing rechazo en frontera. The case concerned the application of this procedure to migrants intercepted in the water while attempting to swim to Ceuta. At its core, the dispute turned on whether the Tenth Additional Provision of the Aliens Law applies to migrants intercepted in such circumstances. While the Court concluded that the regime does not extend to migrants attempting to reach Spanish territory by sea, it leaves important questions concerning Spain’s obligations under international law unresolved. This post argues that, although the judgment provides much-needed clarification, it adopts an unduly restrictive interpretation of the regime and falls short of addressing the broader human rights concerns raised by the regime.
The new judgment
The case reached the Supreme Court on appeal by the Government Attorney Office, which challenged a series of lower court judgments declaring the application of the regime to migrants intercepted at sea in Ceuta unlawful. The dispute centered on the interpretation of the wording of the provision which authorizes summary returns only where migrants ‘attempt to overcome the border containment elements in order to cross the border irregularly.’ The Government Attorney Office argued that the concept of containment elements should be interpreted to include not only the physical border fence but also the maritime border and the technological means used to monitor it, including drones, thermal cameras, and sensors.
The lower court had rejected this interpretation, holding that the wording of the provision refers exclusively to physical containment structures. Unlike the land border fence, the maritime border does not constitute a physical barrier capable of being overcome and therefore cannot be regarded as a containment element for the purposes of the provision.
The Supreme Court upheld this approach, relying primarily on the interpretation of the provision adopted by the Constitutional Court in Judgments 172/2020 and 13/2021. Although neither judgment expressly limited the regime to attempts to overcome the physical border fence, both assessed its constitutionality exclusively in that context, implicitly assuming that this was the regime’s intended scope of application. The Supreme Court further drew a clear distinction between containment elements and surveillance elements. The former are physical obstacles designed to prevent entry, whereas the latter merely facilitate the detection and monitoring of border crossings. The very designation of drones, thermal cameras, sensors, and similar devices as early warning systems demonstrates that their function is instrumental and antecedent to any material act of containment. Consequently, these technologies cannot be equated with containment elements, and migrants intercepted while attempting to reach Spanish territory by swimming do not fall within the scope of the rejection regime.
Cause for relief?
The judgment raises three principal concerns.
The first concerns remarks made by the Court that extend beyond the question before it. In its admission decision, the Supreme Court identified the issue of interest as follows:
‘To decide whether the Tenth Additional Provision of the Aliens Law applies to persons intercepted at sea while attempting to enter the cities of Ceuta or Melilla by swimming and, consequently, whether they may be subjected to the rechazo en frontera [rejection at the border] procedure.’
The judgment concluded that the maritime boundary cannot be regarded as a containment element and that the regime therefore cannot be applied to migrants attempting to reach Spanish territory by swimming. Having reached that conclusion, the Court nevertheless went on to observe that, if physical containment structures were to be installed at sea, the regime could apply to individuals attempting to overcome them. This statement, which went beyond what was necessary to resolve the dispute, was introduced by the Court without addressing the need for a specific legislative framework governing its operation and the safeguards required in such an inherently dangerous environment. In doing so, it appears to leave open the possibility of extending summary returns at sea through a de facto practice rather than through a clear legal framework.
The judgment further stated that, although rejection was inapplicable in the present case, the appropriate legal mechanism would instead have been a different legal instrument, namely the return procedure (devolución). This observation is equally difficult to reconcile with the question before the Court. Once it had been determined that the contested procedure could not lawfully be applied, there was no need to indicate which alternative coercive measure might have been available to the administration. By doing so, the judgment shifted its analysis from defining the limits of the challenged legal regime to identifying an alternative legal basis for the removal of the individuals concerned. Was this judgment about defining the scope of an administrative procedure, or about ensuring the expulsion of migrants from Spanish territory?
This leads to a second concern, relating to what the judgment leaves unsaid and its overall approach. The analysis on the scope of the procedure of return focuses exclusively on what can be understood as a containment element and whether the rejection could be applied in their absence. However, this approach overlooks the broader context in which the regime operates: individuals attempting to reach Spanish territory by swimming, a context in which repeated loss of life has occurred, are exposed to the inherent risks of a maritime crossing. In such circumstances, the authorities’ obligations extend beyond the mere assessment of whether the material conditions for applying the procedure are met; they also include a duty to protect the life and safety of individuals under their control.
The provision itself reinforces this conclusion. While creating the rejection regime, its second paragraph expressly provides that it ‘shall be carried out in compliance with the international human rights and international protection law to which Spain is a party.’ The individual who had been rejected in the present case relied on this provision to argue that it encompasses access to legal and language assistance, relevant evidence, and the possibility to submit allegations. I argue, however, that this second paragraph of the provision extends beyond procedural safeguards. It also requires compliance with the State’s positive duties to protect the life and safety of individuals in the maritime context. These include obligations arising under the European Convention on Human Rights, as well as search and rescue obligations under the law of the sea, including those set out in UNCLOS, SOLAS, and the SAR Convention.
The third concern follows naturally from this omission and, although the broader law of the sea issues fall beyond the scope of this post, the Court’s characterization of the maritime area deserves attention. The judgment records the Government Attorney Office as submitting that the interceptions occurred on the high seas, a characterization that the Court subsequently adopted. Under UNCLOS, however, the high seas refer to maritime areas beyond national jurisdiction, generally located beyond 200 nautical miles from the coastal baseline. Against this legal background, the characterization is difficult to reconcile with the geographical reality of the area concerned. The land border between Morocco and the Spanish Autonomous City of Ceuta extends into the sea through a breakwater surmounted by a border fence. Migrants attempting to reach Spanish territory by swimming do not navigate across the high seas but instead swim around the end of that structure. The relevant maritime area is therefore the narrow strip of water immediately adjacent to the coast, making it geographically impossible for those waters to constitute high seas.
This is not merely a matter of terminology. The legal classification of the waters has implications under the law of the sea, both because of the unresolved maritime delimitation between Spain and Morocco and because different maritime zones may entail different legal frameworks governing State action at sea. The wider questions of jurisdiction, effective control, and the interplay between law of the sea and human rights fall beyond the scope of this post. They nonetheless reinforce the need for greater precision in the Court’s reasoning, particularly in a decision that seeks to define the scope of a migrant expulsion procedure and provides guidance for future cases.
Concluding remarks
The Spanish Supreme Court’s judgment provides a welcome clarification that the rejection at the border regime does not apply to migrants intercepted while attempting to reach Ceuta or Melilla by sea. Yet its significance lies as much in what it leaves unresolved as in what it decides. It focuses primarily on whether physical containment elements could justify applying the regime. In doing so, it overlooks the broader legal framework governing maritime interceptions.
Border management in Ceuta and Melilla cannot be reduced to mechanisms for the summary return of intercepted migrants. Instead, it must be grounded in safeguards that ensure the effective protection of fundamental rights, while fully complying with the law of the sea. In this context, technological developments can play an important role. Rather than being conceived solely as instruments of border enforcement, they should also be recognized for their potential to protect human life at sea. Realizing that potential, however, requires the prevailing securitarian approach to give way to one centred on the protection of life.
Image: Kris Anderson, CC BY 2.0
