The Contentious-Administrative Court number 2 of Ceuta has ordered the Administration to readmit to Spain a migrant who was immediately returned to Morocco after being rescued at sea while trying to swim to the autonomous city last year. Understand that Immigration law safeguards were not respected and that since he was not intercepted at the border, the rejection figure cannot be applied to him. This is, he concludes, a decision based on facts.
The resolution, which ABC has had access to, is the second that this court has issued in the same sense. In January, it already signed another order that also imposed on the government delegation in Ceuta the readmission of another person intercepted at sea and delivered to Morocco. He is a Yemeni citizen who cannot return to his country of origin and who found himself in Tunisia in a high-risk situation, according to his defense sources. This decision is the subject of an appeal before the High Court of Justice of Andalusia.
The latest sentence is dated September 4 and results from the appeal filed by the legal team of the Neighborhood Coordinator, the Jesuit Migrant Service and No Name Kitchen in response to the delivery to Morocco “by de facto means” and without any file of a man who was intercepted in the South Bay “when I tried to swim to Ceuta.”
The migrant was rescued, transferred to the port for identification and medical assistance and, as the resolution specifies, “without further formality, he is handed over to the Moroccan authorities”, an action which, in the opinion of Judge Antonio Severo. “it cannot be considered as compliant with the law and cannot find legal cover either” in the figure of rejection at the border, “intended for so-called barrier crossing situations, very different from that analyzed”.
It is not a border or a fence
“In the case analyzed here, the appellant is not intercepted on the land border but in the South Bay, nor does he seek to circumvent the border containment elements, since he intended to access Ceuta by swimming. And being so, is not appropriate “an interpretation so broad that it allows to cover a mode of access different from that envisaged, analyzed and resolved by the Constitutional Court”, says the judgment, in relation to the doctrine which supported the returns to the foot of the barrier.
For the magistrate, it was therefore expelled by “de facto means” in a decision that is annulled and “the initial situation” must be restored. It orders the readmission of the young person and recognizes his right to return to the Spanish State “at his own expense, so that the corresponding administrative return file is processed” and in this context, if he deems it appropriate, to apply for asylum, as according to his lawyer, was the initial intention.
In this sense, the appeal requested that his right to international protection be violated, but the application was rejected because, as he was not assisted by a lawyer at any time during his rescue at sea, there is no evidence that he attempted to formalize an asylum application. It also excludes any right to compensation for moral damages.
