Spain questions the legality of the EU Returns Regulation after the Ceuta crisis

Marlaska becomes the only Minister of the Interior who rejects the final adoption of the regulation considering that some measures raise doubts about legality and proportionality, while Moncloa questions the guarantees of the return centers and demands more operational, financial, and political solidarity from the Twenty-Seven after the migratory crisis in Ceuta.

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The Spanish Government arrived at the meeting of Interior Ministers of the Twenty-Seven with the intention of not opening new fronts in the community bloc. However, it has distanced itself from the rest of the capitals by positioning itself against, as the only country, the final adoption of the European Union Return Regulation. Minister Fernando Grande-Marlaska has defended before his counterparts that the text raises doubts "about the legality and proportionality of certain measures."

In the context of the meeting, held this Thursday in Luxembourg, Moncloa has sent a statement justifying its rejection of the proposal presented to all Member States. Marlaska believes that the current regulation renounces the establishment of a truly European system and also questions "the lack of proportionality of certain measures."

The Spanish Government has taken the opportunity to criticize that the events in Ceuta "highlight that European legislation lacks instruments that allow for effective return in exceptional situations that deviate from the ordinary." In this way, the Executive links the migratory crisis experienced at the Spanish border with the need to review the operational capacities of the Union, although it considers that the legislative proposal on the table does not offer an adequate response.

Spain questions the European return model

Spain argues that, during the negotiation of the regulation, the initially included objective of mutually recognizing, when agreements are established with third countries, certain obligations based on a European Return Order has been discarded. "Instead of focusing efforts on the return of those people who do not have the right to remain in the entire Schengen area, new mechanisms for transferring people between Member States are being created," they affirm in the Ministry.

The Executive is addressing the design of the system proposed by the community proposal. In the face of a mechanism that allows for the coordinated articulation of returns across the European space, Moncloa considers that the text shifts part of the efforts towards transfer procedures between member states. The discrepancy places Spain in a unique position in the negotiation, questioning an initiative that seeks to strengthen the European return policy. The Government does not limit its objections to the proportionality of the proposed measures but also doubts that the regulation advances towards a common model that allows for more effective action against irregular migration.

The European People's Party seeks to deny entry or carry out returns without individual asylum procedures in the case of migrants "used in a hybrid attack."

In this way, the amendments introduced by their party, the CDU, stated in a resolution during the political convention of the European popular party. That is to say, they seek to be able to suspend asylum in crises like the one experienced last July. The issue raised the pressure on the European debate. While Spain demands tools to improve the management of external borders and returns without modifying the balance of the Pact, Germany proposes to expand the margin of action for states in situations considered as hybrid attacks. Diplomatic sources insist that this request is already regulated in national legislation and foresees what the automatic suspension of resources with third countries is. "The Migration and Asylum Pact achieves a balance between responsibility and solidarity," they defend in the Executive.

Moncloa warns of the legal insecurity of return centers

Similarly, Moncloa maintains "its enormous concern" about the return centers contemplated by the new legislation. In the opinion of the Spanish Administration, the text "would allow for the establishment of such centers through non-binding agreements, with content that causes legal insecurity and offers limited guarantees." The Executive questions, therefore, both the legal instrument provided to articulate these agreements and the guarantees that would accompany their application. The possibility of establishing return centers through agreements that are not binding constitutes one of the main points of friction for the Spanish delegation.

In parallel, the Spanish diplomatic team considers that the proposal does not sufficiently take into account "the direct impact that the conclusion of agreements of this nature may have on the credibility of the Union's foreign relations." "One must wonder whether the Union will allow the deprivation of liberty of individuals in an irregular administrative situation for periods longer than those applied to criminals convicted of serious offenses," continues the text prepared by the Spanish Government.

The declaration places guarantees and proportionality at the center of the Spanish objections. The Executive believes that the strengthening of the return policy should not translate into measures whose duration or conditions of application raise doubts from a legal point of view.

Marlaska defends Spanish management after the Ceuta crisis

Marlaska, who has refused to make statements to the press upon his arrival at the meeting, as is usual, has defended behind closed doors the "effectiveness in Spain's migration management." "The impact has been zero," he said about the Ceuta crisis. The minister took the opportunity of the meeting to claim the Spanish response to the events recorded at the border and demand greater involvement from the rest of the community partners. The Government's position thus combines the rejection of certain elements of the Return Regulation with the demand to strengthen cooperation mechanisms among member states.

Specifically, Marlaska has called on the Twenty-Seven to lend a hand on issues such as "operational, financial, and political solidarity" to address migration crises like the one that occurred at the Spanish border two months ago. The request recovers one of the main arguments that the Executive has conveyed to its partners since the beginning of the crisis: the need for the management of external borders not to fall exclusively on the countries directly affected by episodes of migratory pressure. "The lack of solidarity weakens and fragments the EU," the minister reproached, after, in the hours following the start of the crisis, up to 22 countries questioned Spanish migration policy.

The disagreement highlights the difficulties in reconciling national positions on a matter where the effectiveness of returns, legal guarantees, and the distribution of responsibilities among member states converge. Spain demands more instruments to respond to exceptional situations, but rejects that the new regulation is the appropriate way to achieve it.

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AI-GENERATED CONTENT

What is the current parliamentary status of the EU Return Regulation and what are the next steps for its final approval?

The so-called EU Return Regulation (new common system for the return of third-country nationals in irregular situations) is already in the final stage of the ordinary legislative procedure. Parliament and Council have reached a political agreement and the European Parliament has approved the text in Plenary, so the core of the negotiation is closed. In light of the available institutional information, the formal procedures for final adoption and publication in the Official Journal of the EU are still pending for the regulation to fully enter into force.

Parliamentary and co-decision status

The European Commission presented its proposal for a Regulation establishing a new common European return system in March 2025, intended to replace Directive 2008/115/EC (the current Return Directive) and other related rules. This proposal is part of the package complementing the Migration and Asylum Pact.

In the Council, Member States first adopted a common position (“general approach”) in December 2025 on this proposal, setting their mandate to negotiate with the European Parliament. From there, the usual trilogues between Parliament, Council, and Commission took place.

In the European Parliament, the Civil Liberties Committee (LIBE) approved its negotiating position on the reform of return rules in March 2026. Subsequently, the Plenary of the European Parliament supported opening negotiations with the Council and, after the political agreement reached on June 1, 2026, ended up approving the resulting text:

  • On June 1, 2026, negotiators from Parliament and Council reached a provisional agreement on the Regulation, closing the main points of disagreement (return procedures, detention duration, return centers in third countries, European return order, etc.).
  • On June 17, 2026, the European Parliament Plenary approved the new return system, with 418 votes in favor, 218 against, and 30 abstentions, giving parliamentary approval to the text agreed in trilogue.

Notes from the European Parliament and the European Commission agree that, after this Plenary approval, the Regulation still needs to be formally adopted by the Council and then published in the Official Journal of the European Union (OJEU) to enter into force. Meanwhile, journalistic analyses (including the newspaper Demócrata) describe the regulation as “definitively approved,” meaning that the political negotiation has concluded and no substantive changes to the text are expected.

Next steps until final approval and implementation

Within the ordinary legislative procedure, once there is political agreement and the Parliament Plenary has voted in favor, the file enters the formal closing phase. Based on the available institutional information, the next steps are:

  • Formal adoption by the Council: the competent ministers of the Member States, meeting in the Council (likely in the Justice and Home Affairs format), must approve the agreed text. This is a political procedure but normally does not reopen the content agreed in trilogue.
  • Signing of the legislative act: once adopted by both institutions, the Regulation is signed by the Presidency of the European Parliament and the Council Presidency.
  • Publication in the OJEU: the full text is published in the L series of the Official Journal. According to notes from both the Council and Parliament, the Regulation will begin to enter into force the day after its publication.
  • Entry into force and phased application:
    • Certain provisions (for example, those related to return centers in third countries, age assessment of minors, or the external dimension of returns) would apply immediately after entry into force.
    • Other rules requiring operational preparation and national regulatory adjustments would start to apply 12 months later, to give Member States time to adapt legislation, procedures, IT systems, and training.
  • National adaptation: although the Regulation is directly applicable and does not require transposition, States must modify their internal law where incompatible (immigration laws, procedural rules, detention regime, administrative cooperation, etc.) and organize administratively the new mechanisms (for example, the European Return Order).

In summary, the Return Regulation is already politically closed and approved by the European Parliament, but the process is not considered complete until the Council formally adopts it and the text is signed and published in the Official Journal. Only then can it be considered definitively approved in the strict legal sense and the deadlines for its effective application in Member States, including Spain, will begin.

What are the competencies of the Minister of the Interior in Spain and what powers does he have according to current legislation?

The Minister of the Interior is the Government member responsible for the State's internal security policy and for directing the ministerial department of the same name. His competencies generally derive from Law 50/1997, of November 27, on the Government, and, organizationally, from the royal decree developing the basic organic structure of the Ministry of the Interior (currently Royal Decree 207/2024, of February 27, and its amending regulations), in connection with Law 40/2015, of October 1, on the Legal Regime of the Public Sector.

1. General framework of competencies as a Government member

Law 50/1997 defines the functions of Government members. According to the text of this law (BOE-A-1997-25336), ministers, as heads of their departments:

  • Develop the Government's action within their department's scope, in accordance with the Council of Ministers' agreements and the Prime Minister's guidelines.
  • Exercise regulatory power in matters pertaining to their department, i.e., approve ministerial orders and propose royal decrees for regulatory development.
  • Hold direct competence and responsibility over the management of their department, directing the Administration assigned to them.
  • They may countersign acts of the King in matters within their competence, when provided by the Constitution.
  • Exercise any other competencies assigned by laws and Government organization and functioning rules.

Therefore, the Minister of the Interior fits into the governmental hierarchy: acts under the political direction of the Prime Minister, participates collegially in the Council of Ministers, and is politically and jointly accountable before the General Courts for his department's actions.

2. Material competencies of the Ministry of the Interior

The specific distribution of matters is set in the royal decree of the Ministry of the Interior's basic organic structure, detailing its senior and management bodies (State Secretariats, Undersecretariat, General Directorates, etc.) and assigning functions. Although the detailed list is in that royal decree, the current department configuration broadly covers the following main blocks:

  • Citizen security and public order: design and execution of internal security policy, crime fighting, and maintenance of public order, including regulation and control of private security.
  • Direction of the State Security Forces and Corps: political and administrative command over the National Police and Civil Guard, as well as coordination with other police forces within the public security system.
  • Civil protection and emergency management: planning and coordinating the State's response to disasters and emergencies, in collaboration with autonomous communities and local entities.
  • Traffic and road safety: through the Directorate-General for Traffic, planning and managing road safety, regulating driving licenses, and controlling interurban traffic.
  • Immigration, asylum, and refuge: management of internal Schengen borders, policies on entry and stay of foreigners, recognition of international protection, and cooperation with other departments and international organizations.
  • Penitentiary institutions and social reintegration, in the territorial scope where these competencies remain state-level, including penitentiary centers and policies on execution of sentences and custodial measures.
  • Other related matters, such as control of weapons and explosives, security at public events and sports, or citizen identification and documentation infrastructure (DNI and passport), are also usually integrated within the Ministry of the Interior's functional scope.

3. Command and coordination powers

Law 40/2015, on the Legal Regime of the Public Sector (BOE-A-2015-10566), completes this framework by establishing the Ministry of the Interior's position territorially. The article concerning Government delegates in autonomous communities states that:

  • Government delegates must protect the free exercise of rights and freedoms and guarantee citizen security, and for this purpose exercise State competencies in this matter under the functional dependence of the Ministry of the Interior, directing the State Security Forces and Corps in their area.

This means that the Minister of the Interior, besides directing the ministry's central administration, exercises a functional direction over the citizen security action deployed territorially through Government delegations and subdelegations.

4. Legal and management functions

Based on these rules, the Minister of the Interior's powers can be summarized as:

  • Legislative initiative in his material scope: proposing draft laws, royal decrees, and other general provisions on internal security, traffic, civil protection, immigration, etc.
  • Strategic direction and planning of security policies and ministry-dependent structures.
  • Sanctioning competence in areas where sectoral state legislation provides (traffic, immigration, citizen security, weapons and explosives, private security…).
  • Representation of the department before other State bodies, autonomous communities, local entities, and specialized international security and migration management organizations and institutions.
  • Interministerial coordination in internal security matters affecting several departments (defense, foreign affairs, transport, finance, inclusion and migration, etc.).

In short, current legislation places the Minister of the Interior as the highest political authority for the State's internal security, endowed with regulatory power in his scope, command over the State Security Forces and Corps, and capacity for direction and coordination over a broad set of public policies related to the protection of people, property, and rights in Spanish territory.

What legal requirements must be met to establish return centers in the European Union according to current regulations?

In EU law, there is not yet a closed and unified figure called “return center,” but the European Pact on Migration and Asylum and the new Return Regulation allow Member States to articulate return procedures — including specific centers, inside or outside the EU — provided they fully respect Union law, the Charter of Fundamental Rights, and the European Convention on Human Rights (ECHR).

1. Legal basis and regulatory framework

Return centers are embedded in three main pieces:

  • The Migration and Asylum Pact, in force since June 2026, which strengthens the link between asylum denial and return, especially through border asylum and return procedures at the external border (Commission Q&A).
  • The Asylum Procedures Regulation, which provides for a mandatory “border procedure” for certain categories of applicants and coordinates deadlines for asylum and return decisions.
  • The new Return Regulation (political agreement Parliament–Council in 2026), which will replace the old Return Directive, toughens expulsion policy, allows detention periods up to 24 months (extendable in certain cases), and explicitly contemplates return centers in third countries, excluding unaccompanied minors and with reinforced safeguards for families and vulnerable persons.

Furthermore, if centers are located in a third country, bilateral agreements must respect international human rights law and the principle of non-refoulement, provide independent monitoring mechanisms, and allow suspension of cooperation if required guarantees are violated, as highlighted by both EU institutions and human rights bodies.

2. Essential legal requirements to create and operate return centers

  • Clear legal basis in EU law and in national transposition or implementation legislation, defining who can be detained, for how long, and for what purpose (preparing and executing return).
  • Formal connection with an asylum or immigration procedure: the return decision must be linked to denial of international protection or irregular stay, with coordinated deadlines to appeal both decisions.
  • Strict time limits: the border return procedure is limited (the Commission mentions a maximum of 12 weeks for the border phase), and detention for expulsion purposes is generally limited to a maximum of 24 months, extendable only in specific cases.
  • Alternatives to detention: deprivation of liberty must be exceptional; Member States are obliged to consider less burdensome measures (bail, obligation to reside in a certain place, periodic appearances).
  • Independent supervision: the Pact introduces the obligation to have independent fundamental rights monitoring mechanisms both in controls and border procedures, which also applies to return centers.
  • EU transparency and control in centers located in third countries: States must inform the Commission and other partners of the agreements signed and guarantee enforceable legal clauses and prior risk assessments.

3. Minimum guarantees derived from the CJEU and the ECHR

The case law of the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECHR) sets substantive requirements that any return center must respect:

  • No automatic or arbitrary detention: detention must be necessary and proportionate case by case, with legal provision and legitimate purpose (execution of return). The CJEU Advocate General, analyzing the Italian model of centers in Albania, emphasized that moving the center outside the EU does not remove these guarantees; they must apply “as if it were on the Member State's territory.”
  • Effective judicial control: detained persons must be able to access a judge and have a fast-track review of the legality of detention and return order, without the execution of return emptying the right to appeal.
  • Non-refoulement principle: it is prohibited to return, directly or indirectly, to a country where there is a real risk of persecution, torture, or inhuman or degrading treatment. This principle also applies when the person is sent to a center in a “safe” third country; if in practice there is a risk of chain deportations to unsafe places, the measure is incompatible with the Charter and the ECHR.
  • Dignified material conditions: accommodation, food, hygiene, possibility of contact with the outside, and healthcare must be compatible with human dignity; deficient conditions may violate Article 3 of the ECHR.
  • Reinforced protection of minors and vulnerable persons: detention of minors is only allowed as a last resort and for the shortest possible time; unaccompanied minors are excluded from return centers in third countries under future regulations. Access to education, healthcare, and additional safeguards is required.
  • Extraterritorial responsibility: when a Member State de facto controls or decisively participates in managing a center in a third country, it may remain responsible before the ECHR and CJEU for rights violations committed there.

In summary, current regulations allow Member States to create return centers, even outside the EU, but only within a strongly conditioned framework: express legal basis, judicial control, strict respect for non-refoulement, dignified conditions, reinforced safeguards for minors and vulnerable groups, and continuous independent supervision. Any model using these centers as a legal “exception zone” would clash head-on with Union law and the European human rights system.

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