Legal framework, immigration, and European funds

On April 1, 2015, Spain incorporated into its legal system a figure with no equivalent in European comparative law: the 'rejection at the border', an immediate coercive action —not an administrative procedure— that allows the return to Morocco of anyone attempting to overcome the containment elements of Ceuta and Melilla without identification, reasoned decision, or prior appeal. Eleven years later, the figure remains in force, but delimited by the European Court of Human Rights, the Constitutional Court and, between 2024 and 2026, by the Supreme Court, whose most recent precedent —Supreme Court ruling (STS) 814/2026— triggered the July 2026 crisis. This chapter reconstructs that architecture and the unresolved tension between the new European Pact on Migration and Asylum and judicial doctrine.

5.1 'Rejections at the border'

5.1.1 First Final Provision of Organic Law 4/2015 and Tenth Additional Provision of the Immigration Law (LOEX): text, nature of coercive material action, absence of regulatory development

Summary handovers to Morocco at the fence line —the so-called 'hot returns'— had been practiced as a de facto measure, without express legal cover, at least since 2005. Coverage arrived with the first final provision of Organic Law 4/2015, of March 30, on the protection of public safety (BOE-A-2015-3442), introduced by amendment in the Senate on March 11 and in force on April 1, which adds the tenth additional provision (DA 10ª) to Organic Law 4/2000, on the rights and freedoms of foreigners (LOEX). Its first paragraph states: 'Foreigners detected at the border line of the territorial demarcation of Ceuta or Melilla while attempting to overcome border containment elements to irregularly cross the border may be rejected in order to prevent their illegal entry into Spain.' The second adds that 'in any case, the rejection will be carried out respecting international human rights and international protection regulations to which Spain is a party,' and the third refers asylum applications to 'places set up for this purpose at border crossings.'

Three characteristics explain its litigiousness. First, its nature: being a material action and not a procedure, rejection avoids the guarantees of Article 58.3 LOEX for ordinary return —identification, lawyer, interpreter, reasoned decision, and appeal—. Second, its regulatory void: eleven years later, there is still no development that establishes how it is individualized, documented, and subjected to judicial control, an omission criticized by the Ombudsman, who in its 2022/2023 annual report demanded it 'without further delay' and closed the file 'with a difference of opinion'. Third, its origin: it was introduced by an amendment unrelated to the object of the law that hosts it —the so-called 'gag law'—, a technique criticized as a fraud to parliamentary debate and the basis of the unconstitutionality appeal 2896-2015.

5.1.2 The 'operational concept of border': Interior Ministry doctrine since 2005 and its legal criticisms ('no areas of non-law exist')

The practice of rejections is based on a doctrinal construct of the Ministry of the Interior consolidated, according to the Government itself, in 2005 with the 'first fence crisis' and maintained under governments of different political leanings: the so-called 'operational concept' or 'operative concept' of the border. According to this thesis, there is no 'entry into Spanish territory' —nor are the guarantees of the LOEX activated— until the migrant overcomes the last element of the device: the inner fence on land, or the line of agents on the beach in the 'water tongue' of Tarajal. Minister Jorge Fernández Díaz defended it in Congress in 2014 by distinguishing between a 'geographical concept' and a 'legal-political concept' of the border: 'Until the second fence is crossed, there is no irregular entry, but rather a rejection at the border.'

Legal criticisms predate the legalization of the figure and have not been disproven. The IUSMIGRANTE report by the Complutense University (Martínez Escamilla and Sánchez Tomás, 2014) argued that border and sovereignty are strictly legal concepts, not discretionary: the space between the two fences is national soil —a thesis already defended by Judge Lamo de Espinosa in Melilla—, and every person present in it is under Spanish jurisdiction. That logic was closed by STS 814/2026 with the maxim that summarizes a decade of evolution: 'no areas of non-law exist'.

5.1.3 International reproaches: CAT-UN 2015, SPT 2017, Human Rights Committee, CERD, UNHCR (~70% potential applicants), Ombudsman

Summary returns have accumulated reproaches from practically the entire international human rights system. In Spain's review in May 2015, the United Nations Committee against Torture (CAT) urged unconditional respect for the principle of non-refoulement (prohibition of returning a person to a territory where they risk torture or persecution). The Subcommittee on Prevention of Torture (SPT), after its visit from October 15 to 26, 2017, which included Melilla, demanded that returns not take place 'without prior and individualized assessment.' The UN Human Rights Committee requested explanations in 2015 for handovers at the fence, and the Committee on the Elimination of Racial Discrimination (CERD) became aware in June 2015 of the case of Abdoulaye Mara, a Malian returned after declaring his intention to seek asylum from the Melilla fence.

Two sources of specific weight were added to this. The United Nations High Commissioner for Refugees (UNHCR) in Spain called for an end to hot returns and prior screening, and estimated in 2015 that around 70% of those attempting to enter through Ceuta and Melilla are potential protection seekers, a figure that would turn each mass rejection into a probable risk of refugee refoulement. The Ombudsman stated in 2016 that sub-Saharans cannot access asylum offices at the border; after the tragedy of June 24, 2022, in Melilla, it estimated 470 hot returns that day, compared to the 101 recognized by the Civil Guard. The Council of Europe Commissioner for Human Rights (Muižnieks) and the mission of rapporteur Boček (SG/Inf(2018)25) spoke out against automatic handovers and obstacles to asylum access.

5.2 European and constitutional jurisprudence

5.2.1 ECtHR N.D. and N.T.: 2017 conviction and Grand Chamber revocation 2020 ('own culpable conduct' conditioned on effective legal avenues)

The case that brought hot returns before the European Court of Human Rights (ECtHR) was that of two men, a Malian and an Ivorian, who jumped the Melilla fence on August 13, 2014, and were immediately handed over to Morocco without identification or procedure (applications 8675/15 and 8697/15). The Chamber judgment of October 3, 2017, condemned Spain unanimously: it found a violation of Article 4 of Protocol No. 4 to the European Convention on Human Rights (ECHR), which prohibits collective expulsions, and of Article 13, which guarantees an effective remedy, because the expulsion was carried out without any individual examination.

The Grand Chamber revoked that conviction on February 13, 2020, also unanimously, and declared that there had been no violation. Its doctrine is technically precise and politically decisive: protection against collective expulsion can be deactivated when it is a consequence of the 'own culpable conduct' of the foreigner who attempts to enter unauthorized 'taking advantage of their large number and the use of force,' but only if genuine and effective avenues for legal entry exist; the court considered that Spain had made them available —the asylum offices and the Nansen procedure—. The judgment conditionally legitimized summary returns, and the ECtHR subsequently declared analogous cases inadmissible (Doumbe Nnabuchi; M.B. and R.A., 2021). The doctrine has been highly criticized for conditioning non-refoulement on the applicant's conduct and departing from Hirsi Jamaa v. Italy (2012). Furthermore, its entire logic rests on the existence and effectiveness of legal avenues, a premise that the reality of Tarajal and Beni Enzar calls into question (see 5.4).

5.2.2 STC 172/2020 and 13/2021: conditioned constitutionality (individualization, judicial control, vulnerable persons, effective legal avenues)

The Constitutional Court resolved the appeal with STC 172/2020, of November 19 (Plenary; BOE-A-2020-16819): it declared the norm in conformity with the Constitution 'provided that it is interpreted' in accordance with its legal basis 8.C, with three cumulative limits: (a) application to individualized, not mass, entries; (b) full judicial control; (c) compliance with international obligations. It also demanded special attention to vulnerable persons —manifest minors (Article 3.1 of the Convention on the Rights of the Child), pregnant women, persons with disabilities, or the elderly— and recalled that legal entry means 'must exist and be effective' (Law 12/2009 on asylum). STC 13/2021, of January 28, reiterated this conditioned constitutionality.

The structure of both judgments is relevant for risk assessment: rejection was not validated as a practice as it is executed, but as a figure subject to conditions that daily practice hardly meets. Without regulatory development and with legal avenues filtered by the Moroccan police, each mass operation remains in a zone of potential unconstitutionality: a 'conditioned' legitimacy whose conditions were eroded by subsequent litigation.

5.3 The Supreme Court's turn 2024-2026

5.3.1 STS 114/2024: repatriations of 55 minors in August 2021 illegal (collective expulsion); criminal conviction by the Provincial Court of Cádiz 2025 of the former delegate

Following the mass entry on May 17-18, 2021, into Ceuta (between 8,000 and 12,000 people, according to sources; of these, about 1,500 were minors), the Government Delegation repatriated 55 minors between August 13 and 16, 2021, solely based on the Spanish-Moroccan Agreement of March 2007. The judicial response was staggered and unanimous: the Contentious-Administrative Court No. 2 of Ceuta provisionally suspended the returns; Court No. 1 (judgment of February 14, 2022) declared 13 of the 55 contrary to law; the High Court of Justice of Andalusia confirmed; and STS 114/2024 (ECLI:ES:TS:2024:114; note from the General Council of the Judiciary, CGPJ, of January 22, 2024) closed the cycle by declaring the illegality due to “absolute non-observance” of the LOEX —without individual procedure, hearing the minor, or intervention of the Public Prosecutor— and categorizing the operation as a collective expulsion (Article 4 of Protocol 4 ECHR), violating the physical and moral integrity of the minors. The judgment established a phrase destined to be general border doctrine: “The acquiescence of another country does not exempt the Spanish authorities from acting in full compliance with the Constitution and the laws; the respectability of Spain as a rule of law depends on it.”

The penal corollary arrived in September 2025: the Provincial Court of Cádiz sentenced the former Government Delegate in Ceuta, Salvadora Mateos, and the former Vice-President of the City, to nine years of disqualification for prevarication due to those repatriations, executed “despite knowing their illegality” (CGPJ note, September 2025). This is a precedent for personal criminal liability for border management decisions: territorial officials now know that a summary return order can result in a conviction.

5.3.2 STS 814/2026: the sea is not an element of containment; those who enter by swimming must be processed with guarantees — the precedent that triggered the July 2026 crisis

STS 814/2026, of June 29 (Third Chamber, Fifth Section, appeal 3795/2025, rapporteur Fernando Román García; public communication on July 8, 2026), resolved the case of an Algerian returned in November 2024 and established the doctrine that redefines the legal perimeter of rejection: this is only permissible when the migrant attempts to overcome physical containment elements —the fences—; those who enter by swimming or are intercepted at sea must be processed by ordinary return with all the guarantees of Article 58 LOEX. The judgment, which is final —and preceded by a 2024 decision by the Contentious-Administrative Court of Ceuta that annulled the rejections of two Moroccans who entered by sea—, added a technologically relevant clarification: drones, cameras, and sensors “do not fulfill a material containment function, but rather one of surveillance.”

The operational implication is of the first order and connects with the tactical evolution described in previous chapters: the reinforcement of the fence had shifted the flow towards the sea (swimming as the dominant method since 2023-2024), and STS 814/2026 precisely closed the sea to the special rejection regime, reducing the legally “rejectable” border to a few kilometers of fence where assault had become exceptional. This precedent —and its dissemination in early July 2026— triggered the July 2026 crisis, recounted in chapter 3: upon learning that those who arrived by swimming had to be processed with guarantees and not summarily returned, the incentive to attempt entry by sea multiplied in the surrounding camps.

The source document also includes, in this same section, the following table on the historical evolution of successive generations of Ceuta and Melilla fences, referred to in chapter 2 of this report:

The sequence reveals a trajectory with a clear direction: between 2017 and 2021, European and constitutional courts built a conditional legitimacy for rejection; between 2022 and 2026, Spanish jurisdiction executed the conditions until narrowing the figure to its minimal territorial expression. The outliers are the Grand Chamber —which endorsed the figure against the previous section's condemnation— and, conversely, the 2025 criminal conviction, which shifts the legal risk from the State to the individual official. The practical implication is that the legal margin for rejection is no longer defined by the 2015 norm, but by the specific case: where the interception occurs, who is intercepted, and what procedure was followed, three variables that no mass operation can control.

5.4 Asylum at the fence and de facto discrimination

5.4.1 Tarajal and Beni Enzar asylum offices (2015): Moroccan police filter, blocked access for sub-Saharans, contrast with Syrians; Ombudsman 2016 and Council of Europe 2018

The existence of effective legal channels is the sine qua non condition for both the doctrine of the Grand Chamber and the conditional constitutionality of STC 172/2020. These channels materialized in early 2015 (operational since March, according to available information) with the asylum offices of the Asylum and Refugee Office (OAR) at the El Tarajal (Ceuta) and Beni Enzar (Melilla) crossings, with a lawyer and interpreter, inadmissibility with re-examination in two days, and administrative appeal. On paper, the mechanism met the formal requirement; on the ground, it was born with a documented distortion: “de facto discrimination.” By the end of 2015, no sub-Saharan applications were recorded in these offices (Jesuit Refugee Service and Irídia), because Moroccan police violently rejected sub-Saharans before the Spanish control, while Syrians crossed with documentation —frequently purchased—. A Civil Guard colonel in Melilla put it bluntly: “Here, yes, there are whites and blacks; sub-Saharans cannot come walking” (GADEM/Migreurop/APDHA/Cimade, 2015).

The Ombudsman (report “Asylum in Spain,” 2016) and the Council of Europe mission (rapporteur Boček, report SG/Inf(2018)25) reached the same conclusion: real access to the legal channel depends on a filter that Spain does not control. UNHCR has insisted that access to protection must be guaranteed “regardless of the circumstances of entry” and on expediting transfers to the Peninsula. The consequence is structural: if legal channels are not effective for the group that predominantly attempts irregular entry —sub-Saharans—, the condition that the ECHR and the Constitutional Court require for the validity of rejection ceases to be met, and the figure remains exposed to a new condemnation in Strasbourg. Added to this is the political dimension: the European Parliament (resolution of June 10, 2021) condemned Morocco’s use of border control, migration, and in particular unaccompanied minors as an instrument of pressure in the May 2021 crisis —qualified by Rabat as “unacceptable”—, and the EU Agency for Fundamental Rights (FRA) included the episode among cases of instrumentalization.

5.5 The new European framework

5.5.1 CEAS 2024 (full application 12/06/2026): mandatory border procedure, non-entry fiction, Crisis Regulation 2024/1359, and instrumentalization

The European Pact on Migration and Asylum (CEAS), ten acts approved by the European Parliament in April 2024 and by the Council on May 14, 2024, entered into force on June 11, 2024, and reaches its full application on June 12, 2026 —weeks before the July crisis—. Its central piece for Ceuta and Melilla is Regulation (EU) 2024/1349 on asylum procedure, applicable at external borders, territorial waters, and transit zones, which introduces the mandatory border procedure for applicants from countries with recognition rates below 20%, security risk, or deception, with a decision within a maximum of twelve weeks. Its most legally significant feature is the fiction of non-entry: applicants in border procedure are not considered admitted into the territory of the Member State, which institutionalizes in European law a regulated version of the “operational concept of border.” Unaccompanied minors are excluded unless there is a security risk; the package is completed with border return, initial triage, and mandatory solidarity.

The second pillar is crisis management. Following the instrumentalization of migration by Belarus in 2021, the Commission's initial proposal (COM(2021) 890) was not adopted, but its content was channeled into Regulation (EU) 2024/1359, of May 14, 2024, on situations of crisis and force majeure —which expressly includes instrumentalization (the use of migrants by a third State as political pressure) and allows for derogating from certain procedural guarantees—, and into the revised Schengen Borders Code of 2024, which enables the temporary closure of crossings. The Ceuta crisis of 2021 was classified by the European Parliament and the FRA as instrumentalization, a framework that the European press is already applying to that of July 2026; in this, Interior Commissioner Magnus Brunner offered the deployment of Frontex in Ceuta, the Commission pressured Morocco as a “key and trusted partner” and endorsed the “rapid return of those who have entered illegally, in accordance with applicable rules,” while 24 States requested an extraordinary meeting of the Justice and Home Affairs Council. It should be remembered that Frontex operations “Hera” and “Indalo” never covered Ceuta and Melilla (Commissioner Malmström, March 25, 2014) and that Spain had never requested such a deployment, also rejected in May 2021.

The balance as of August 2026 is thus defined: the CEAS functionally replaces part of the “rejection” logic with a formalized channel —triage, border procedure, non-entry fiction—, but at the cost of de facto detention at the border and a fiction that reproduces, with a European stamp, the dispute over what it means to “enter” territory. The unresolved tension is evident: the Supreme Court demands full guarantees for those who enter by sea, while the CEAS aims to process those arriving precisely by sea without territorial admission; and the Crisis Regulation allows for relaxing procedural guarantees in the same scenario where STS 114/2024 and the conviction in Cádiz have established individual responsibilities for doing so. How these two orders are articulated in the next crisis will determine the legality of the Spanish response and the criminal exposure of those responsible; this is one of the risk lines assessed in chapter 8.

The border of Ceuta and Melilla is not decided solely at the fence or in Rabat: it is also decided in the Official State Gazette and in the courtrooms. Between 2020 and 2026, four decisions—the Immigration Law and its new regulations, the constitutional doctrine on border rejection, European jurisprudence, and the Supreme Court ruling of July 2026—have reconfigured what the Civil Guard can do with a person who arrives. Each of them is defensible in law. The analytical problem is different: the whole has generated a perception—whether true or not—that there is a way of entry with a reasonable expectation of permanence. This perception is the material with which trafficking networks and state actors interested in exerting pressure work.

5bis.1 The six milestones that must be read together

5bis.2 The Supreme Court's opinion of July 2026 and the displacement to water

Sentence 814/2026 is the operational turning point. By excluding the marine environment from border rejection, it makes swimming the only route with a guaranteed procedure: whoever reaches the water can no longer be immediately returned to the other side, but must be identified, assisted, and informed of their right to apply for international protection. In legal terms, the resolution closes a grey area incompatible with the constitutional doctrine of 2020. In terms of border management, it produces three simultaneous effects: it strengthens the incentive to swim over jumping – now almost impossible due to the anti-climb fence described in Chapter 02 – multiplies the administrative and reception burden on two cities without structural capacity, and hands over an exploitable headline to third-party actors with a simplified reading: “if you reach the water, you enter.”

The chronology is the relevant data. The sentence was communicated on July 8, 2026, and the massive entry by sea was triggered in the following weeks, with an initial passivity of Moroccan forces on the Fnideq shore. Both governments attributed the crisis to trafficking networks that instrumentalized the resolution. This attribution is plausible and, at the same time, insufficient: networks do not create the legal framework, they resell it.

Hipótesis: The judicial opinion is not the cause of the July-August 2026 crisis, but its instrumentalized trigger. The working hypothesis is that the combination of a more permeable immigration regulation, a child distribution mechanism that guarantees institutional departure, and a ruling that protects the procedure for those arriving by sea was read — and marketed — as a window of opportunity. Verification requires analysis of network messaging, service prices before and after July 8, and profiles of arrivals. This report does not have access to that material.

Pregunta de transparencia: Was an operational impact and reception capacity assessment conducted in Ceuta and Melilla before the new regulation came into force and after the communication of STS 814/2026? If it exists, why was a scenario forecast not made public? If it does not exist, the decision was adopted without measuring its effect on the most exposed land border of the European Union.

5bis.3 The "carrot": expectation of permanence and the economics of the attempt

The term circulating in public debate — carrot — describes a real though imprecise mechanism. There is no Spanish norm that promises entry; there is a set of rules that, taken together, make the attempt have a positive expected return for those who undertake it: if rescue mandates port, if immediate return is prohibited in water, if minority status activates mandatory protection, and if roots offer a medium-term regularization path, the cost of the risk is amortized. Spanish border policy simultaneously maintains two incompatible messages: physical deterrence at the fence and administrative expectation once inside. The contradiction is not resolved by hardening the fence, because the flow no longer passes through it.

The humanitarian consequence of this contradiction is quantified in Chapter 04: with jumping closed off and swimming incentivized, mortality shifts to the water. Any reform that increases the expected return of the attempt without opening an equivalent legal path transfers risk to the person; it does not eliminate it.

Migration cooperation between the European Union and Morocco is not a gesture of goodwill: it is a funded relationship. European border management programs have channeled successive packages to Morocco —including an allocation of 179 million euros specifically intended for migratory and border control capacities, in addition to previous tranches from the Emergency Trust Fund for Africa and neighborhood instruments—, with an accumulated volume that places Rabat among the main recipients of European funds of this type. This money raises a question that this report considers central and that is rarely formulated in legal terms: if border control is paid for, what happens when control is relaxed coincidentally with episodes of diplomatic tension?

5ter.1 What exactly was purchased

The technical answer is uncomfortable for both sides of the debate. This type of financing agreement does not purchase a result —"zero irregular entries"—, but rather capabilities: vehicles, surveillance equipment, force training, information systems, technical assistance, and institutional support. The committed indicators are usually related to activity (units trained, equipment delivered, operations carried out) and not to verifiable impact on the flow. This architecture has a direct legal consequence: an increase in arrivals does not, in itself, constitute a breach of the agreement. What could constitute a breach is the diversion of expenditure, the absence of justification, the use of material for purposes other than those agreed upon, or the blocking of verification mechanisms.

Hipótesis: The conditionality of these funds is weak by design, not by oversight. An agreement with outcome objectives would compel the Union to formally declare non-compliance by a partner on whom the containment of the flow depends, with the risk of provoking precisely the crisis it seeks to avoid. The ambiguity of the indicators is, in this interpretation, the political price of cooperation. This interpretation is analytical and is not supported by fully published contractual documentation.

5ter.2 Real avenues for enforcement: what can and cannot be litigated

It is advisable to discard a common error from the outset. There is no direct action before a European court to sue Morocco for "breach of contract" in migration matters: Union courts do not have general jurisdiction over third States, and financing agreements usually refer to dispute resolution mechanisms between the Commission and the beneficiary country, not to public litigation. What does exist is a set of avenues —administrative, expenditure control, and challenges to the Union's own acts— with distinct and unequal effects.

The practical conclusion is that the leverage is not judicial, but financial and political: the European Commission can suspend disbursements, demand reimbursements, and condition future tranches on verifiable indicators. That it does not do so is a decision, not a legal impossibility. And this decision is explained by the same asymmetry that runs throughout this report: whoever controls the key to the passage negotiates from a stronger position than whoever pays for the key to remain closed.

5ter.3 The link with the Schengen risk

Money and Schengen are two sides of the same mechanism, and this report already addresses the latter in chapters 05 and 08: the application of the revised Schengen Borders Code of 2024 and the regulation on crisis situations and instrumentalization, together with the precedents of re-establishment of internal controls by other Member States. The relationship between both levels is direct. If external financing does not produce verifiable containment, the pressure shifts to the European internal border, and Spain bears the cost in the form of distrust regarding its filtering capacity. That is to say: the failure of the external contract is paid for in the internal market.

Pregunta de transparencia: Are the migration control financing agreements with Morocco, their committed indicators, and their verification reports published? Has a disbursement suspension or financial correction for non-compliance with objectives ever been exercised? And is there an official evaluation of the return on the 179 million in terms of effectively contained flow?

Evidencia cualitativa: Reports on the control of European expenditure in external migration management have been pointing out the same weaknesses for years: objectives formulated in terms of activity, difficulty in measuring real impact, and limitations on access to verification at destination. This sustained diagnosis is what turns the demand for compliance into a problem of contractual design rather than political will.