The migration crisis in Ceuta has reached the Judiciary three weeks after the massive entry recorded on July 30. The General Council of the Judiciary (CGPJ) has communicated to the president of the autonomous city, Juan Jesús Vivas, the willingness of Isabel Perelló to hold a meeting “as soon as possible.”
The meeting represents the opening of a new institutional front, but its scope is limited. Perelló presides over the Supreme Court and the governing body of judges, although she cannot order expulsions, suspend the right to asylum, or compel the Executive to transfer the migrants who remain in Ceuta.
The meeting she holds with Vivas will likely focus on the pressure that the crisis is exerting on the Administration of Justice. The CGPJ has already requested to reinforce the courts on duty and the bodies specialized in violence against women in light of the increase in arrests, deaths, sexual assaults, and other proceedings related to the entry of migrants.
The challenge for Ceuta, therefore, unfolds on two distinct levels. The first is judicial and affects the capacity of the courts to process cases. The second is political and administrative and includes border management, asylum applications, expulsions, humanitarian assistance, and the protection of minors.
Perelló agrees to meet with Vivas
The Vivas-Perelló meeting was requested by the Ceuta president and confirmed during the visit to the autonomous city by the CGPJ member José Antonio Montero. The Council has shown willingness to hold the meeting both in Ceuta and at its headquarters in Madrid.
Montero has visited the courts and has held contacts with representatives of the legal profession to understand the needs arising from the crisis.
The Inspection Service of the CGPJ has noted an extraordinary increase in the workload during the first weeks of August. In response, the Council proposes to incorporate two judges or magistrates as reinforcements: one to support the duty service and another for the specialized jurisdiction in violence against women.
The governing body of judges has also requested from the Ministry of Justice officials with experience, a lawyer from the Administration of Justice, interpreters, and appraisal services.
This distribution reflects how responsibilities are divided. The CGPJ can approve judicial reinforcements, but the material means, the officials, and a good part of the necessary resources depend on the Ministry of Justice.
The CGPJ cannot decide on expulsions
The intervention of the CGPJ does not make the Judiciary responsible for politically resolving the crisis in Ceuta nor does it replace the competencies of the Government. The Council can approve service commissions, assign reinforcement judges, and adopt measures to prevent judicial bodies from being blocked. The Organic Law of the Judiciary allows it to confer service commissions to judges and magistrates to work temporarily in another court or tribunal.
However, the CGPJ cannot indicate to judges how they should resolve the proceedings. Article 12 of the Organic Law of the Judiciary establishes that judges and magistrates are independent even with respect to the judicial governing bodies themselves.
Perelló also cannot order the Ministry of the Interior to initiate expulsions nor impose a certain reception model on the Ministry of Youth and Childhood for minors arriving in Ceuta. Those decisions correspond to the Administration and can only be reviewed by the courts when there is an action, a resolution, or an inactivity subject to appeal.
The meeting with Vivas may serve to mobilize resources and convey the seriousness of the problem, but it does not constitute an extraordinary way to deviate from immigration and asylum legislation.
Interior retains competence over expulsions
The identification of migrants, the processing of immigration files, and the execution of expulsions correspond to the central Government, mainly through the Ministry of the Interior and the State Security Forces and Corps.
Each situation must be examined individually. The Administration has to determine if the person can apply for international protection, if there are reasons that prevent their return, and if it is appropriate to initiate an expulsion file.
The courts intervene when a person appeals an administrative decision or when they must authorize certain measures that affect fundamental rights. They can also adopt precautionary measures, confirm an expulsion, or annul it if legal guarantees have not been respected.
What the regulation does not allow is for the CGPJ to agree on a general return of those who entered Ceuta nor for the judges to replace the Interior in the instruction of the files.
The right to asylum cannot be suspended by a political or judicial decision limited to Ceuta. Its exercise is protected by Spanish legislation, European regulations, and international treaties signed by Spain.
The immediate return of minors is ruled out
For her part, this morning the Coordinator Prosecutor for Minors, Teresa Gisbert, has rejected the proposal from the Popular Party to immediately return migrant minors who arrived in Ceuta to Morocco.
Gisbert has described that possibility as “nonsense” and has reminded that before any repatriation it is mandatory to individually analyze the circumstances and the best interest of each minor.
The return of an unaccompanied minor is legally possible, but it cannot be carried out automatically or collectively. Authorities must know their identity, locate their family, or verify the existence of an adequate protection system in the country of origin and determine that the return constitutes the most favorable option for the child or adolescent.
The Foreigners Law establishes that the policy regarding unaccompanied foreign minors must be oriented towards their return with the family or their incorporation into the protection services of the country of origin, but only when that solution responds to their best interest.
According to Gisbert, the minors interviewed so far do not want to return to Morocco, but rather travel to the Peninsula. That will does not decide the procedure by itself, but it must be incorporated into the individual evaluation.
Childhood and Ceuta must guarantee the protection of minors
The Autonomous City of Ceuta maintains direct responsibilities for the care and protection of minors who are in its territory. The central government, for its part, must activate and coordinate the extraordinary mechanisms for transfer and territorial distribution.
The Executive is working on several formulas. One of them is the mandatory relocation mechanism between autonomous communities approved for situations of extraordinary migratory contingency. In this procedure, the Government Delegation or Subdelegation formulates the destination proposal and the autonomous services subsequently assume care and guardianship.
The Ministry of Youth and Childhood is also preparing a specific plan to transfer around 500 girls who arrived in Ceuta to the Peninsula. The analyzed formula would allow them to be housed in centers managed by child protection organizations without initially transferring custody to the receiving communities.
This model still needs to be specified. Among the pending issues are the Administration that will retain custody, the funding of the places, the selection of the entities, and the supervision mechanisms.
Ceuta may go to court against the Government
Vivas has already warned that Ceuta could go to Justice if the Government does not manage to restore normalcy within 30 days. The autonomous city has the capacity to challenge acts and provisions of the General State Administration that it considers contrary to its competencies or interests.
It also can file an appeal against administrative inactivity. The Regulatory Law of Contentious-Administrative Jurisdiction allows for judicial claims when an Administration is obliged to perform a specific service and does not execute it.
This avenue, however, requires identifying a precise legal obligation. It would not be enough to generically argue that the Government has not resolved the crisis. Ceuta would have to indicate which action required by a norm or binding agreement has been breached and previously make the corresponding request.
A court could compel the Administration to fulfill a specific legal obligation or annul decisions made without respecting the procedure. What it could hardly do is impose a complete migration strategy on the Government, decide how many people must leave the city, or replace the Executive in its competencies over borders and immigration.
Judicial control but political action
The upcoming meeting between Perelló and Vivas confirms that the crisis is already affecting the ordinary functioning of the courts in Ceuta. The CGPJ has instruments to reinforce them, and the Ministry of Justice must provide the necessary officials, interpreters, and material means. However, the main solution to the migration crisis continues to be outside the courts.
Interior must individually process the situation of adults; Childhood and the territorial administrations must protect and relocate minors; Foreign Affairs must maintain cooperation with Morocco; and the Government must guarantee the means of reception and security. Judges may oversee that all these actions respect the law, but they cannot design or execute them instead of the responsible public authorities.