Consult here the declassified documents about the Ceuta crisis

In Spain, the declassification of official documents usually does not require a specific law or parliamentary procedure, but rather a decision by the same body that classified them, within the framework of official secrets legislation. The Parliament mainly intervenes through political control over the Government, not as a body that formally “lifts” the classification.

The general regime is based on two main normative pieces:

• Law 9/1968, of April 5, on official secrets, amended by Law 48/1978, of October 7, which defines “classified matters” (secret or reserved), determines who can classify them, and establishes the basic legal framework.
• Decree 242/1969, of February 20, which develops the Official Secrets Law and regulates in detail the procedures for classification, protection, review, and, where appropriate, declassification.

Law 9/1968, as amended by Law 48/1978, establishes that “classified matters” may be declared as issues, acts, documents, information, data, and objects whose knowledge by unauthorized persons could harm or endanger the security and defense of the State. The classification as secret or reserved corresponds exclusively, within its sphere of competence, to the Council of Ministers and the Board of Chiefs of Staff, and this power cannot be transferred or delegated.

The same Law expressly provides that:

• The cancellation of classifications (“lifting” the secret or reserved status) shall be agreed upon by the same body that made the declaration. That is, declassification is an act of the Council of Ministers or the competent military body, as the case may be.
• The classification does not limit the access of the General Courts: the Congress and the Senate “shall always have access to any information they request, in the manner determined by their respective Rules and, where appropriate, in secret sessions.” This recognizes a parliamentary right to information, although it does not make the Chambers a declassifying body.

Decree 242/1969 develops the administrative procedure. Among other aspects, it provides that:

• The body that classifies must, whenever possible, indicate the duration of the classification or the future event that will act as a limit, and provide mechanisms to periodically review whether it is appropriate to reclassify or declassify the documentation.
• There must be internal procedures in the Administration and the Armed Forces to propose reclassification or declassification, and specific services in charge of the protection of classified matters.

From a parliamentary point of view, the “procedures” do not consist of approving a norm to declassify a specific document, but rather tools of political control to pressure the Government:

• Oral or written questions and interpellations to the Government about the existence of classified documents, their general content, or the reasons for maintaining the classification.
• Motions and non-legislative proposals in which a Chamber can formally urge the Government to agree to the declassification of certain documents or review the classification policy.
• Requests for information and documentation, including consultation of materials in secret session, under the right of access recognized by the Official Secrets Law itself to Congress and Senate.
• Parliamentary committees, whether ordinary, investigative, or specific, which can request documentation, receive it under confidentiality, and politically propose its partial or total declassification.

In practice, therefore, the typical sequence would be:

• A parliamentary group raises control initiatives or resolutions urging the Government to declassify.
• If the Government agrees, the declassification is carried out through the formal agreement of the competent body (usually, the Council of Ministers), which nullifies the secret or reserved classification on the specific documents or matters.
• In parallel, Parliament can access the documentation under confidentiality and continue exercising political control, even if the Government refuses to lift the classification.

There is no automatic expiration period for classification in the current regulations nor a specific judicial procedure to force declassification; the scheme relies on the Executive's competence to classify and declassify and on parliamentary control and, where appropriate, administrative litigation over the acts of the Administration.

In the Spanish legal system, the Prime Minister is not the “police chief of the borders,” but is the highest political authority responsible for national security and, therefore, for the general orientation of border security. This position is articulated through the Constitution, Law 50/1997, of November 27, on the Government, Law 36/2015, on National Security, Organic Law 2/1986, on Security Forces and Corps, and various regulations that create coordination bodies (National Security Council, delegated commissions, specialized committees, etc.).

1. Constitutional and Government Framework

The Constitution assigns the Government the direction of internal and external policy, the defense of the State, and the direction of the civil and military Administration. Law 50/1997 develops this mandate and defines the Prime Minister as the one who:

• Leads the Government's action as a whole, setting the major political priorities, including security policy and border control.
• Coordinates the functions of the different ministers, which is key in border matters, where Interior, Defense, Foreign Affairs, Inclusion and Social Security, Transport, etc., converge.
• Convenes and presides over the Council of Ministers, the body that approves royal decree-laws, royal decrees, and agreements that create, organize, or redirect border control devices, as well as plans against migratory crises.
• Proposes the creation and composition of the Government's delegated commissions by royal decree (for example, the Delegated Commission competent in national security or migration matters), from which the operational coordination of several ministries is managed.

2. National Security and Borders

Law 36/2015, of September 28, on National Security, configures the Prime Minister as the political authority who:

• Leads national security policy and is the highest responsible for its promotion and coordination.
• Presides over the National Security Council, a collegiate body supporting the Prime Minister in this matter, integrating the main ministers (Interior, Defense, Foreign Affairs, etc.) and from which national strategies are approved or promoted (including the National Security Strategy and sectoral strategies such as maritime or cybersecurity).
• Oversees the activity of the specialized committees of the National Security Council, including the Specialized Immigration Committee and others linked to threats affecting borders (terrorism, organized crime, maritime security, etc.), created and regulated by ministerial orders publishing agreements of the National Security Council.

Although the daily management of border crossings and immigration corresponds to Interior (National Police, Civil Guard) and other departments, they act within the strategic framework set by the Prime Minister through national security policy and Council of Ministers decisions.

3. Security Forces and Operational Control

Organic Law 2/1986, on Security Forces and Corps, places public security – including border and coast surveillance – under the competence of the State and specifically the Ministry of the Interior, to which the National Police and Civil Guard are subordinated in these matters.

The Prime Minister:

• Does not directly command the forces at the border, but politically guides their actions through general directives to the Minister of the Interior and other involved department heads.
• Can promote the creation of specific coordination structures (such as coordination authorities against irregular immigration in specific areas, or coast and border surveillance centers), through Council of Ministers agreements published by ministerial order.

4. Role in Border Crises

In situations of sudden migratory pressure or serious threats at the borders (Ceuta, Melilla, Canary Islands, Strait, etc.), national security legislation and the Government Law allow the Prime Minister to:

• Assume reinforced leadership of crisis management, activating the National Security Council and the Specialized Situation Committee to receive real-time information and coordinate responses.
• Order the preparation or activation of specific plans and strategies (for example, maritime security or fight against irregular immigration) that articulate the coordinated use of civil and military resources.
• Propose to the King, if applicable, the declarations of states of alarm, exception, or siege, when a border crisis reaches the level of serious public order or national security disruption.

5. European and International Dimension

External border policy is strongly conditioned by European Union Law (Schengen area, Border Code, cooperation with Frontex, visa waiver agreements, etc.). In this regard:

• The Prime Minister leads Spain's general position in the European Council and in relations with other heads of State and Government, also when negotiating reforms of the European asylum, immigration, and border framework.
• Oversees, through the competent ministers, the internal application of European agreements and regulations that regulate external border control and migration flow management.

In summary, Spanish regulations place the Prime Minister as the highest responsible for the political direction of border security: setting strategy, coordinating ministries, presiding over national security bodies, and assuming leadership in crises, while material execution falls to Interior, Defense, and other departments under his direction.

Organic Law 4/2000 (Immigration Law), in its current version after subsequent reforms, sets several material and formal requirements that condition any modification of border rejection procedures, especially in the context of Ceuta and Melilla. These requirements derive both from the organic law reserve regarding the rights and freedoms of foreigners and from the provisions regulating expulsion, return, and the special regime of border rejection.

1. Required normative rank

Border rejection directly affects the core of the power of removal and the exercise of fundamental rights of foreigners (physical integrity, judicial protection, asylum, etc.). Organic Law 4/2015 on citizen security added to the Immigration Law a tenth additional provision on the “special regime of Ceuta and Melilla” and, at the same time, modified the fourth final provision of Law 4/2000 to declare which provisions have organic nature.

This fourth final provision, as amended by LO 4/2015, establishes that the following have organic nature, among others:

«articles (…) 53, 54, 55, 57, 58, 59, 59 bis, 60, 61, 62, 62 bis, 62 ter, 62 quáter, 62 quinquies, 62 sexies, 63, 63 bis, 64, 66, 71, additional provisions third to eighth and tenth and final provisions».

This means that the regime of expulsion, return, and border rejection, as well as its essential elements, can only be modified by organic law. A regulation or lower-rank norm may develop procedural aspects but cannot alter the essential content nor reduce the guarantees established by those organic provisions.

2. Specific provisions on rejection, expulsion, and return

Article 58 LO 4/2000, as amended by LO 2/2009, regulates the effects of expulsion and return, and forms the legal core on which removal mechanisms, including “border return,” are built:

• Entry prohibition: “Expulsion entails the prohibition of entry into Spanish territory,” with a general maximum of 5 years and up to 10 in cases of serious threat to public order, public security, national security, or public health.
• Return without expulsion procedure: “An expulsion procedure is not required for the return of foreigners” when they have breached an entry prohibition or “intend to enter the country illegally.”
• Material limits: return is excluded if an application for international protection is made until its inadmissibility is decided, and it is prohibited to return pregnant women when it poses a risk to gestation or health.
• Judicial control and deadlines: if the return is not executed within 72 hours, the judge must be requested to order internment.

On this general basis, LO 4/2015 added to LO 4/2000 the aforementioned tenth additional provision “Special regime of Ceuta and Melilla”, which configures the border rejection of those detected “at the border line” of those cities attempting to overcome containment elements:

• Immediate rejection is enabled “to prevent their illegal entry into Spain.”
• It is expressly conditioned that “in any case, the rejection will be carried out respecting international human rights and international protection regulations.”
• The processing of asylum applications is referred to the specific regulations, which must be formalized in the places enabled for this purpose at border crossings.

3. Organic law reserve and limits to regulatory development

By declaring article 58 and the tenth additional provision organic, the Immigration Law itself closes the way for structural elements of border rejection to be modified by regulatory means. Any change that:

• expands the cases of rejection or return,
• restricts or empties the guarantees linked to asylum or judicial protection,
• or alters the configuration of the special regime of Ceuta and Melilla,

must be made through organic law, also respecting the constitutional court's interpretation (STC 172/2020 and STC 13/2021), which requires:

• Application to individualized entries, not to automatic collective expulsions.
• Full judicial control of rejection actions.
• Effective compliance with international human rights and international protection obligations.

Regulatory development is admitted, but only to specify organizational and procedural aspects (for example, documentation delivered, processing channels, coordination among forces, records, etc.), without being able to distort:

• the legal cases of return and rejection,
• the causes and limits of the entry prohibition,
• nor the guarantees linked to asylum, physical integrity, and judicial protection.

In summary, the Immigration Law requires that any substantive reform of border rejection must go through an organic law that respects constitutional doctrine and the international human rights framework; the regulation can only specify the “how,” but not redefine the “what” or the “how far” of the power of border rejection.