|Articles||Estudios Fronterizos, vol. 21, 2020, e048|
Seeking protection at the gates of Europe: refugees, labeling and dissuasion practices at the southern Spanish borders
En busca de protección a las puertas de Europa: refugiados, etiquetado y prácticas disuasorias en la frontera sur española
Received on January 13, 2020.
Accepted on May 4, 2020.
Published on May 8, 2020.
|CITATION: López-Sala, A. & Moreno-Amador, G. (2020). En busca de protección a las puertas de Europa: refugiados, etiquetado y prácticas disuasorias en la frontera sur española [Seeking protection at the gates of Europe: refugees, labeling and dissuasion practices at the southern Spanish borders]. Estudios Fronterizos, 21, e048. https://doi.org/10.21670/ref.2006048|
Based on an analysis on the practices that have become generalized over the past few decades to limit refugees from entering the territory through what has been dominated the dissuasion paradigm, this article uses the literature on labeling to research how asylum has been managed at Spain’s southern border over the past three decades. The analysis is based in 34 in-depth interviews conducted between 2016 and 2019 in Madrid, Cádiz, Ceuta and Melilla to members of different public institutions and social organizations involved in the implementation of refugee policies at the Southern Spanish border. The “labeling” of African immigrants as labor migrants (or as “bogus” asylum seekers) has shaped the refugee policies at this border resulting in practices of contention and dissuasion of the flows and restrictions in the access to the Spanish protection system under the priority of the logic of control.
Keywords: refugees, labeling, dissuasion paradigm, border, migration control, Spain.
A partir de un análisis que subraya las prácticas de contención del acceso de los refugiados desde el denominado paradigma disuasorio, este artículo usa la literatura del etiquetaje para investigar la gestión del refugio en la frontera sur española a lo largo de las últimas tres décadas. Además de detenernos en algunos elementos del marco regulatorio del refugio en España y su evolución, el análisis presentado se basa en 34 entrevistas en profundidad semiestructuradas realizadas entre 2016 y 2019 en Madrid, Cádiz, Ceuta y Melilla a diferentes actores públicos y miembros de organizaciones sociales, nacionales e internacionales, implicados en la gestión del refugio en España. Las conclusiones del análisis indican que el etiquetado de la inmigración africana como una inmigración exclusivamente laboral ha moldeado la gestión política del refugio en la frontera sur española a través de prácticas que han impedido, limitado y disuadido el acceso de potenciales solicitantes de asilo al sistema español de protección internacional. Por ello la gestión del refugio ha quedado ampliamente supeditada al control migratorio.
Palabras clave: refugees, labeling, dissuasion paradigm, border, migration control, Spain.
Original article language: Spanish.
Despite its status as the external border of the European Union and its attractiveness as a destination country for migratory flows, Spain is among the European countries that has received the lowest number of applications for international protection in recent decades. According to the data provided by Eurostat, between 1998 and 2014, requests made for protection in Spain did not exceed 1.5% of the total for the European Union, a much lower percentage than in countries with a greater receiving tradition, such as Germany, France, Sweden and Great Britain, and to other European countries located on the southern border, such as Greece and Italy. The limited number of applications is joined by another unique feature of the Spanish asylum regime and what we can call its “territorial deviation”. Thus, despite Spain’s geographical location within the confines of the European area and its proximity to the African continent, applications for international protection have been made mainly within the territory and not at the peripheral maritime and terrestrial borders. Between 1995 and 2014, according to data provided by the Ministry of the Interior, only 14.26% of the total refugee claims were made in the border cities of Ceuta and Melilla,1 while in 2006, during the so-called crisis of the cayucos, only 366 requests were made in the Canary Islands (Alto Comisionado de las Naciones Unidas para los Refugiados [ACNUR], 2009), although in that year, more than 32 000 people aboard precarious vessels reached the coasts of this region of the archipelago.2
Over the last three decades, this low number of applications compared to other European countries3 has been the subject of broad discussion among specialists, who have highlighted, among other reasons, the low attractiveness of Spain as a country in which to seek protection due to the deficiency of the instruments and initiatives aimed at welcoming refugees, the high percentage of negative resolutions and the long-term application of the so-called inadmissibility procedure (Gil-Bazo, 1998; Jubany, 2002; Fullerton, 2005; Santaolaya, 2006). Other authors have argued that the difficulties of obtaining refugee status and the existence of alternative routes of access to the territory and the labor market in Spain had the effect of diverting many potential asylum seekers to other regimes (Izquierdo, 2001, 2004).4 The scarcity of incoming refugees has had an effect on the Spanish archetype that permeates institutional visions and affects the social actors involved in the management of flows and the implementation of welcome policies. As Garcés-Mascareñas recently stated, Spain became an immigration country that was never recognized as a country of asylum (Garcés-Mascareñas, 2019).
Its peculiar territorial distribution, however, has barely aroused the attention of specialists. What are the reasons for this low number of requests for international protection at Spanish borders, especially those close to the African continent? What are the specificities of border refuge management in Spain? How has the refuge been managed in the context of the formation of the Spanish policy of immigration control and the European border regime?
The intensity of migratory flows to Spain over the last few decades and the prioritization of “migratory containment” in politics has centralized analyses of the border management of irregular immigration (Ferrer-Gallardo, 2008; Godenau, 2014; Ferrer-Gallardo & Gabrielli, 2018; Godenau & López-Sala, 2016; López-Sala & Godenau, 2017a). In contrast, the low demographic weight of applications for international protection has shifted the issue of refuge from a strictly academic interest; the same is true in the case of border studies. More recently, the so-called refugee crisis, the arrival in Spain of Syrian citizens fleeing the war and the agreements regarding resettlement that have been adopted in the European context have prompted analyses of Spanish welcome policies and their deficiencies (Iglesias & Estrada, 2018; Iglesias et al., 2018; Garcés-Mascareñas, 2019; Garcés-Mascareñas & Moreno-Amador, 2019). In short, to date, the management of the refuge on the Spanish borders has attracted little attention among specialists, despite the recent increase in focus on the refuge in other areas of the European perimeter (McMahon & Sigona, 2018; Vradis et al., 2019).
Based on an analysis that highlights the interconnections and dynamic links between mobility management regimes in border spaces and the recent literature on the generalization in recent decades of the practices that contain the access of refugees through what has been called the “deterrence paradigm” (Gammeltoft-Hansem, 2011a; Gammeltoft-Hansen, 2011b; Gammeltoft-Hansen & Tan, 2017; Agier, 2013; López-Sala, 2015a; 2020; Fitzgerald, 2019; Collyer, 2019; Giuffré & Moreno-Lax, 2017), this article uses labeling theory to investigate refuge management practices along the peripheral and maritime Spanish borders in recent decades. These two approaches, and their overlap, theoretically frame the development of the article. Our main thesis is that by “labeling” immigration through the southern Spanish border, which fundamentally comprises African immigrants, as an exclusively economic flow and, therefore, as voluntary, Spanish policy in the context of the formation of the European border regime has prevented, limited and deterred the access of potential asylum seekers to the Spanish system of international protection. The social and political construction of the African migrant within a paradigm of mobility motivated by economic causes and, therefore, their labeling as “illegal immigrants” or “false asylum seekers” has impregnated intervention in the Spanish borders with a logic that prioritizes the principle of containment and discards the need for and rights of protection (Leach & Zamora, 2006). Therefore, the management of the refuge has been largely subject to immigration control through the adoption of traits that confirm, but also expand, the categories presented by other authors within the so-called “deterrence paradigm” (Gammeltoft-Hansen & Tan, 2017). While most authors who have described this new paradigm of refuge management consider that states have implemented these policies to circumvent their legal obligations to national and international jurisdiction (Gammeltoft-Hansen & Vedsted-Hansen, 2016), the application of these measures in the Spanish case is also a response to the construction of this type of migration as economic migration, for which the state is not required to offer protection. Hence, the refugee and the immigration regime fit the same logic, that of the fight against irregular immigration and the need to perform a specific analysis of the management of the refuge “from the border”.
The effects of this labeling on the categorization, classification and hierarchy of the flows through these liminal spaces deepen their role as selective filtering mechanisms (Godenau & López-Sala, 2016), in this case through the construction of an outline of those considered legitimate recipients of protection. The political expression of this hierarchical and classificatory structure of migrants according to what we can call their “deservingness” has been particularly strong with the arrival across the southern border of nationals from Syria, whom European and Spanish authorities─the actors of management and public opinion─have labeled legitimate refugees (Valles, 2016; Amnistía Internacional, 2016).
The analysis presented in this article is based on 34 in-depth semistructured interviews conducted with different public actors and members of national and international social organizations involved in the management of refuge in Spain. Among the interviewees are technicians from the Asylum and Refuge Office (the agency responsible for this matter under the Ministry of the Interior), those responsible for the main social organizations involved in the care of asylum seekers in Spain, lawyers and legal advisers from various organizations, members of social entities that have implemented programs for refugee care, state bodies and security organizations that intervene in conducting interviews with applicants, those responsible for social organizations that work in the defense of immigrants’ rights and members of bar associations and legal experts. The interviews were conducted in Madrid (10), El Estrecho (in the province of Cádiz) and in the cities of Melilla and Ceuta (24) between 2016 and 2019 using a script that included open and closed questions and that aimed to collect retrospective information on the management of the refuge in different enclaves of the southern Spanish border over the last decades.
The article is divided into two main parts. The first part focuses on the literature on labeling, its original formulations and its most recent reworking, with the aim of theoretically framing the analysis and analyzing the influence of this construct on the design and application of this policy in the Spanish case through the information extracted from the fieldwork. The second part, embedded in studies that have analyzed refugee policies from the perspective of the so-called deterrence paradigm, delves into the political and administrative practices that have prevented access to the territory and procedures and, more recently, have limited the intraterritorial mobility of asylum seekers moving through the corridors of the Spanish southern border. To this end, both the results of the field work and the changes in regulations (admission to asylum process and specific regulatory procedures at the border) and political interventions (externalization, limitations of the intraterritorial mobility of applicants, etc.) are considered. This analysis aims to begin to fill a gap in Spanish border and migratory studies through an analysis of the management of refuge at the border that allows us to present some keys to understanding the territorial deviations and the scarcity of asylum requests made at the peripheral land and sea borders of Spain.
Constructing an Outline of Those Who Deserve Protection
Labeling Theory in the Analysis of Refuge Policies
Although labeling theory has a long tradition in the social sciences, it has experienced a significant increase in use as an analytical framework in migratory studies over the last three decades; thus, it is considered by some specialists to be one of the most significant contributions of sociology to the analysis of forced migration (Stepputat & Nyberg-Sorensen, 2014). This consideration is partly a result of the trail that some studies have blazed in this field since the end of the 1970s. Wood defined labeling as “a way of referring to the process through which political agendas are established and in a formal manner, more particularly to how people, conceived as objects of politics, are defined” (Wood, 1985, p. 348). He also noted that labeling is a particularly significant attribute of bureaucracies and an important means of state performance. In his own words, “labels tend to objectify people, disconnecting them from their history, transforming them into standardized cases and linking them with the institutions that administer them” (Wood, 1985, p. 355; see also Stepputat & Nyberg-Sorensen, 2014). In the 1980s, Zetter examined how and with what consequences people were labeled refugees and how identity is formed, transformed and manipulated in the context of the formulation and implementation of such public policies (Zetter, 1991). In his analysis, he argued that labeling is a process of “stereotyping” that involves disaggregation and differentiation, standardization, designation and the formulation of clear categories. More recently, and in a context very different from that observed in the 1980s, Zetter reformulated part of his analysis and argued that the new dynamics of forced migration have produced a transformation of the refuge regime and the “refugee” label. Specifically, he argued that in the construction of labeling, the determination of how refugee status is distributed and how institutional practices seek to distinguish this group from other categories of migrants prevails. In his opinion, the formation of the refugee label reflects the current complexity of the causes and patterns of human mobility. The transformation of this label, which responds to this growing complexity, has been represented by a process of bureaucratic “fractionation” with the objective of managing these new and complex dynamics and with which the states of the north have consolidated as the main actors in the reformulation and modulation of these categories based on their own interests (Zetter, 2007).
During the last decade, particularly as a result of the well-known “refugee crisis”, research on labeling has resumed its centrality in sociological research into the framework, additionally, of the rise of an intense debate regarding the definitions of and the distinction between forced migration and voluntary migration. Several studies have delved into how these labeling policies have undermined the structure of protection in refuge policies, legitimizing restrictionist and exclusionary policies in receiving states. These studies have highlighted, for example, how these constructions establish a classification of migrating individuals based on perceptions of who is or is not deserving of protection statutes, and they reveal a complex dynamic that permeates public policies through a distinction between legitimate and illegitimate subjects. Thus, for example, Sajjad has argued, based on his study on Afghan refugees, that “these labels, presented as neutral categorizations, hide the fact that they are the product of bureaucratic processes”. In addition, she argues that “labeling processes necessarily involve power relations and can be considered acts of governance by states that, based on certain interests, shape and formulate various categories in different contexts and at different times” (Sajjad, 2018, pp. 42 and 46). Other authors have highlighted how this labeling shapes a system of classification and ordering of people in motion according to categories that has an outsized influence on their life opportunities (Janmyr & Mourad, 2018); how this labeling operates based on the interests of the state and at the expense of the rights of potential asylum seekers and transforms refuge policies into a political sphere where deterrence mechanisms and increased immigration control prevail (McFadyen, 2016); and how the way in which migrants are labeled, categorized and differentiated (“those who are moving”) has enormous implications for the type of moral and legal obligations that states and host societies consider themselves to have (Sigona, 2017).
The recent refugee crisis in Europe has also prompted an intense academic debate on this labeling and the construction of categories. Specifically, this debate has focused on what Apostolova and later Crawley and Skleparis have called “categorical fetishism”, with the argument that the dominant binary categories─migrants vs. refugees─fail to adequately capture the complexity of the political, social and economic determinants of migration and its changing significance for individuals over time and space (Apostolova, 2015; Crawley & Skleparis, 2018; Bivand Erdal & Oeppen, 2018). As Becker has suggested, the most powerful actors─fundamentally, the states─establish and use these categories and their labels to frame a problem that reflects how certain issues are represented in political debates and public discourse (Becker, 2014). However, as Moncrieffe indicated, the categories not only represent or reflect the world but also simultaneously create and limit it (Moncrieffe, 2007). These categories, ultimately, are the result of policies and power relations that underpin what has been called the process of delimitation─the process through which these categories are constructed, the purpose they serve and their consequences (Crawley & Skleparis, 2018).
“No..., They are Not Refugees...”. From Refugee Protection to Border Protection
The people who cross the perimeters in Ceuta and Melilla are immigrants for economic reasons, which, obviously, is a dramatic situation (...), but it does not legitimize them to request asylum, nor does it legitimize them to enter our country illegally (statements by the Minister of the Interior, Jorge Fernández Díaz; Europa Press, February 10, 2015).
The labeling of African immigration through the maritime and peripheral land corridors towards Spain as an exclusively economic mobility began between the late 1980s and the beginning of the 1990s, almost parallel to the transformation of Spain as a country of immigration and its adherence to the European Schengen and Dublin treaties. This simultaneity largely explains how this labeling has shaped Spanish immigration and refugee policy on the southern border, becoming an instrument for the containment of mobility in a context in which protection measures have been conspicuous by their absence. There is a great consensus among our interviewees regarding the idea that the construction of African immigration as exclusively economic mobility caused it to be identified and categorized as an illegal and illegitimate flow of people who sought to enter Spanish territory without meeting the requirements established by the state. It was also portrayed as an opportunistic form of immigration that used the “refuge route” to facilitate territorial and statutory access and that ultimately sought to take advantage of the system5; furthermore, its claims of refuge seeking, which were considered fraudulent, were said to endanger the asylum regime and the protection of “legitimate refugees”. The effects of this construction were transformed into the articulation of elements of policy that, as indicated by labeling theory, were based on the categorization, stereotyping and standardization of all African immigrants as fraudulent refugees.6 The construction of African migration as voluntary, not forced, largely explains the dynamics observed along the Spanish borders since the beginning of the 1990s. It was also in the early 1990s that this logic of containing immigrants who were considered unworthy of protection, in contrast to what had been observed in the previous decade, began to shape the regulation of asylum.
It is necessary to emphasize that the first Spanish asylum law, which was approved in 1984, at a time when Spain had not yet become a destination for migratory flows, was in tune with the historical moment of the early 1980s. After decades of dictatorship, Spain signed the Geneva Convention in the first years of its inaugurated democracy, the same year that the right of asylum was guaranteed in the Constitution of 1978. This first asylum law, governed by the three major guiding principles─“solidarity, hospitality and tolerance”─contained in its explanatory statement (Espada Ramos & Moya Escudero, 1985), has been described on numerous occasions as an extremely generous law in the context of the restrictive policies in this area that had been developed in European countries since the 1970s (Escobar-Hernández, 1992). This law recognized the right of entry and residence to applicants throughout the procedure and protected them from expulsion. As Gil-Bazo argued, the content and orientation of this law were the result of a context in which the Spanish State’s desire to implement an asylum system that was respectful of human rights prevailed and to respond to the historical debt to other countries, who welcomed more than three million Spanish refugees during the Franco period (Gil-Bazo, 1998). The reform of the first asylum law in 1994─a date that coincides with the beginning of the construction of the fences in Ceuta and Melilla and the maritime border surveillance regime and is just two years after the imposition of a visa for Moroccan nationals─breaks this goal and develops a norm much more in tune with the new situation of Spain as the outer perimeter of Europe. In the public and political debate regarding the reform of the law that took place in the early 1990s, the idea appeared that the previous law had been fraudulently used as a mechanism for access to territory by African economic immigrants, who had taken advantage of the opportunities offered by this back door access (Pérez-Sola, 2011). In its explanatory statement, the asylum law of 1994 indicated the need to adopt the measures necessary to “prevent the fraudulent use of the refugee protection system for economic immigration purposes”. This argument was even used in the preamble of the law itself, which also indicated that
the system for the protection of refugees was effectively undermined by an increasing number of applications, mostly by economic immigrants (...), which made adequate accommodation difficult and caused the consequent delay in the resolution of petitions and became, in practice, the main route of irregular immigration to our country (Ley 9/1994, 1994).
This view was further reflected in numerous legal and administrative documents. The idea that the asylum system was being abused was already present in the “Non-legislative Proposition on the Situation of Foreigners in Spain” of 1991 (sessions record, Congress of Deputies, April 9, 1991). The creation of the Asylum and Refuge Office (Oficina de Asilo y Refugio - OAR) in 1992 additionally arose with a dual objective, as its then-director pointed out:
on the one hand, to improve the protection and procedure of asylum files that qualified for refugee status; and, on the other hand, to prevent the fraudulent use of the asylum and shelter route by economic immigrants in order to avoid the application of the general rules for foreigners (Bodelón, 1993, p. 47).
An analysis of the OAR's records throughout the 1990s shows the precise extent of a climate of distrust of asylum seekers, especially Africans, by authorities and officials, which some studies have also shown (Jubany, 2011).
From that point, the installation of the blockade of the refuge route as an instrument at the service of immigration control in the southern border led to subsequent normative and administrative developments in a way similar to the dynamics highlighted by the theorists of the deterrence paradigm.
At the Interface of Border Mobility Regimes. Building Refugee Management in Times of Migration Control
Over the years, the Spanish border regime has incorporated a wide range of political instruments, including the application of barrier technology and remote surveillance, remote control, bilateral cooperation and externalization (López-Sala, 2015a; López-Sala & Godenau, 2016, 2017b). This regime has been anchored in a logic that is consistent with the deterrence paradigm. The literature on the deterrence paradigm has focused on analyzing practices developed by states, either alone or in collaboration with others, that restrict the access of refugees to the asylum system through multiple mechanisms, including, blocking flows, offshoring processing, preventing access to territory and access to the protection system, and selective deterrence of destination (Vedsted-Hansen, 1999; Hathaway & Gammeltoft-Hansen, 2015; Hirsch, 2017; Gammeltoft-Hansen, 2011b; Gammeltoft-Hansen & Tan, 2017; Giuffré & Moreno-Lax, 2017; Fitzgerald, 2019). The first two mechanisms can be considered “nonentry practices”7(Hathaway, 1992), in reference to political instruments of externalization that hinder arrival in the territory of states that can grant protection.8 This aspect was extensively analyzed by Gammeltoft-Hansen in 2011, who indicated that this territorialization and outsourcing of asylum has ultimately made refuge a disputed or litigated protection (“protection lite”) (Gammeltoft-Hansen, 2011b). As several authors have pointed out, it is precisely the externalization policies designed to control irregular immigration (Zaiotti, 2016) that have had the greatest effect on limiting access to asylum.9
In Spain, this impediment to access to the territory becomes even clearer at the border. The Spanish collaboration with Morocco as part of the outsourcing of its migration policy has had a strong impact on the preventive, spatial and physical control of potential asylum seekers who have tried to access Ceuta and Melilla through their border perimeters or the coastal provinces of the Strait of Gibraltar and the Alboran Sea. These limitations have been especially serious in the case of nationals from sub-Saharan African countries because to gain access to Spanish territory, they must avoid terrestrial and maritime surveillance by the Moroccan gendarmerie.10 This has led these immigrants to attempt access through border crossing strategies that have endangered their lives and physical integrity, such as jumping fences and seeking access by swimming, taking boats or hiding in vehicles that pass through the border each day. An additional element has been the reactive practice of immediately returning immigrants to Moroccan territory, commonly known in the literature as hot returns11 (Martínez-Escamilla, 2017; López-Sala, 2020). These hot returns have been the subject of widespread political and legal controversy since, in practice, they have prevented access to the asylum procedure through direct rejection at the border, which has denied guarantees of protection and violated the principle of nonrefoulement.12
The labeling of migration that passes through the southern border as purely economic and therefore not deserving of international protection has not only resulted in the development of practices that have prevented access to the territory but has encouraged mechanisms that restrict access to the procedure, which are also mentioned by the theorists of the deterrence paradigm. The most explicit of these instruments was the introduction in the Spanish refugee law of 1994 of the “procedure of inadmissibility to processing”13 (Gil-Bazo, 1998; Fullerton, 2005), an accelerated procedure of prior scrutiny carried out by the administration that permitted or denied access to the system and that in practice presented a serious obstacle through a very reduced interpretation of which applications were considered justified. In the opinion of some specialists and technicians interviewed during our fieldwork, this mechanism, which retroactively prevented refugees already present in the territory from “accessing the door to procedure” (Vedsted-Hansen, 1999) acted as a deterrent mechanism and ultimately affected the number of applications for protection; this number decreased considerably in the second half of the 1990s and remained at very low levels during the first decade of the 21st century.14 In addition, the legal reform introduced an accelerated border procedure that required applicants to remain in authorized units in the border facilities until the authorities determined whether they would be permitted to apply for admission.15 The difficulties of accessing the asylum process at the border were further aggravated by the last legal reform of 2009, which established a system that allowed the Ministry of the Interior to deny not only applications for processing but also applications for asylum in an accelerated manner, within a maximum period of four days (Sánchez-Legido, 2009; García-Mahamut & Galparsoro, 2010; Valles, 2016).
These legal limitations have combined with procedural elements to produce what we can call an infrastructural vacuum of access to refugee status on the Spanish southern border. The consideration that economic causes are the only motivation for the mobility of migrants who pass through these corridors has resulted in the absence, in practice, of infrastructure, procedures and human and material resources that would allow them the apply for asylum, both upon arrival at the coast and at the authorized crossing points (see Solanes, 2014); our interviewees repeatedly pointed out this barrier as one of the main reasons for the low number of requests for asylum at the border. We should not forget that there is no protocol for identifying people who may need international protection, including unaccompanied minors and victims of trafficking, at irregular crossings points of the land boundaries on the peripheral border, and that until September 2014 in the cities of Ceuta and Melilla, there were no specific offices for processing such applications at the entry posts of Tarajal and Beni Enzar.16 For more than a decade, this situation had been denounced by numerous international and nongovernmental organizations (Amnesty International, 2005; CEAR, 2012) and has been the subject of reports and recommendations made by the ombudsman and the European Commission against Racism and Intolerance (ECRI) of the Council of Europe, among others (Defensor del Pueblo, 2005; ECRI, 2005). In practice, this situation meant that until 2014, asylum requests could only be made once the asylum seeker was within the territory of these cities, usually at Immigrant Temporary Stay Centers (Centros de Estancia Temporal de Inmmigrantes - Cetis).17 Additionally, it is important to note that the opening of these two offices in the posts meant to enable crossing in the cities of Ceuta and Melilla was, in large part, a response to pressure from the international community and from the United Nations High Commissioner for Refugees (UNHCR; ACNUR for its initials in Spanish) due to the increase in the arrival of Syrian families to Melilla since mid-2013, in the middle of the European debate on the asylum system.
However, the difficulties of asylum seekers do not end once they are within the territory of these cities, which accounts for the Spanish specificities in the application of the so-called deterrence paradigm. After the last reform of the asylum law in 2009, the State Secretariat for Security began to apply an administrative procedure that restricts and seriously limits the mobility of asylum seekers who want to move to the Spanish peninsular territory. This limitation of the intraterritorial mobility of asylum seekers has been justified based on the special status of both autonomous cities in the Schengen agreement. This agreement allows Spain to reserve the right to maintain documentary control of the connections between these two cities and the Spanish peninsula (Solanes, 2014; González-García, 2015; Valles, 2016; López-Sala, 2020). According to information from the State Secretariat for Security, the documentation of admission to the asylum procedure─an identification card given to applicants─cannot be considered valid permission to travel, which has led to the denial of travel permits to applicants who want to move to other areas of the national territory. This administrative barrier, which in reality causes the “bureaucratic captivity” of asylum seekers, has transformed Ceuta and Melilla into what some migrants call “a golden prison” (López-Sala, 2015b) because their application for asylum status implies their involuntary immobilization in these cities, and this physical restraint can last months or even years, until their request is resolved. This serious limitation of asylum seekers’ freedom of movement can be considered an additional deterrent strategy within the complex puzzle of immigration control (López-Sala, 2015a) that prevents many people in need of international protection from applying for entry into the transfer program18 and accessing continental European territory.19 These selective immobilization measures contravene the Spanish asylum law and violate the principle of equal treatment, and they have been denounced in recent years by UNHCR and the ombudsman (United Nations General Assembly, 2013; Defensor del Pueblo, 2013, 2016). The ombudsman also pointed out in his 2016 report that “these practices affected the credibility of the Spanish protection system and led to an aggravation of the vulnerability of these people” (Defensor del Pueblo, 2016, p. 52). Despite the fact that several judicial decisions have declared this practice illegal,20 it continues to be applied today.
Conclusions. “Practices of Impossibility” and “Dynamics of Absence”
The labeling of immigration that runs along the southern Spanish border, mainly from Africa, as a flow motivated exclusively by economic and labor factors has led to its categorization as voluntary mobility. This has had enormous implications for the modulation of immigration and refuge regimes along the Spanish territorial contours, particularly the maritime and land border. This labeling, which has been shaped and consolidated over the last three decades, has turned African migrants into potential false asylum seekers (or fraudulent applicants) and has produced regulation and political and administrative interventions based on prevention, containment and retention. At first, these actions hid the duty to respond to migrants’ needs for protection, and later, they prevented this duty. In the first part of the article, the effects of this categorization and stereotyping, discussed in terms of labeling theory, on the mobility regime and the refuge regime in this strip of the southern European border are presented. The analysis of the Spanish case has allowed us to characterize the mechanisms for limiting potential asylum seekers’ access to protection and shows features that are in line with what theorists of the deterrence paradigm have found in other geographical contexts. Among other issues, the difficulties of accessing the territory have been highlighted through well-known outsourcing policies with Morocco or the infamous practice of hot returns. Similarly, the enormous difficulties of access to the asylum process have been highlighted through the use for more than a decade of the so-called admission to procedure. Our study also served to highlight some distinctive elements observed in the Spanish case, such as the limitation of applicants’ intraterritorial mobility, which allows to speak of the “bureaucratic captivity” to which these applicants are subjected, even after gaining access to the territory and the asylum-seeking process. This set of actions has resulted in the extreme difficulty of gaining access to protection, characterized by an impossibility that is most clearly reflected by the scarcity of asylum applications at the border. Regulatory and political frameworks have combined with an absence of procedural elements to produce what we call an “infrastructural vacuum”. The consideration that economic causes are the motivation for migration through these corridors has resulted in the absence, in practice, of infrastructure, procedures and human and material resources that would allow asylum applications, both upon arrival at the coast and at the authorized crossing points.
This article has been developed in the context of the MIND project (“Actores no estatales del control migratorio en España” [“Non-state actors in migration control in Spain”]), financed by the Ministerio Español de Ciencia e Innovación [Spanish Ministry of Science and Innovation] (CSO2014-53680-P).
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1 Since 2005, only aggregate data have been available for the distribution of applications by place of application (distinguishing between applications submitted at the border and within the territory), and the border province in which the application was made has not been specified. Specific data for the 1995-2018 period are only available for the cities of Ceuta and Melilla.
2 Additionally, it is important to note that all these requests were generally made within the territory of the archipelago and not at the maritime border, as was indicated at the time by various reports and by some of people in the Immigration Detention centres who were interviewed during this investigation (Comisión Española de Ayuda al Refugiado [CEAR], 2007; ACNUR, 2009).
3 It should be noted, however, that this pattern has changed enormously in the last five years, unlike the pattern of “territorial deviation”. Since the so-called refugee crisis, the number of asylum applications in Spain has increased significantly year after year until it reached a historical maximum in 2019. The numbers are more expressive: while in 2014, the number of applications was 5 952, in 2019, it amounted to 118 264, according to data provided by the Ministry of the Interior. This has made Spain, for the first time in recent history, one of the main destination countries for refugees in Europe. In 2019, according to Eurostast data, Spain ranked third, behind only Germany and France. Currently, most of the applicants come from Venezuela, Colombia and Central American countries (Honduras, Nicaragua and El Salvador). Despite all these transformations, the low number of applications submitted at the border (only 6% of the total in 2019) and the low presence of African citizens among applicants persists (see CEAR, 2019; see also https://www.cear.es/solicitar-asilo-en-fronteras/).
4 At the beginning of the 2000s, Antonio Izquierdo indicated that the primacy of a labor migration regulation model built and designed to respond to the needs of the labor market allowed access and legal stabilization to potential asylum seekers through the general immigration regime. His analysis of the regularization processes showed what he called the “domino effect” of migration policies between the different categories of flows; in particular, it showed how many potential asylum seekers who entered the territory on short-term tourist visas subsequently resided in an irregular situation and obtained a work or residence permit through extraordinary regularizations or the arraigo procedure (Izquierdo, 2001, 2004).
5 This perception of African immigrants as fraudulent asylum seekers who intended to take advantage of the system was also noted by some research conducted in the early 2000s (see, for example, Jubany, 2002, Leach & Zamora, 2006).
6 Studies on Spanish immigration policy have also pointed to its selective nature and, in a certain sense, its impregnation with racial overtones through the delimitation of certain ethnic and national categories as preferential categories, specifically, the preference for Latin American immigration over African immigration (Izquierdo et al., 2003). Although this is a controversial issue, some researchers have highlighted the role of this racial component in the shaping of Spanish politics (see, for example, Vives, 2011). In our fieldwork, although they did not use the term racism, many of the interviewees indicated that there has been discrimination against African migrants seeking asylum, something that they said was particularly evident during the arrival of Syrian refugees, who are considered legitimate refugees by the public and by political decision-makers.
7 In the words of this author, while international law regarding refuge has imposed an obligation to apply the principle of “nonrefoulement”, “nonentry policies” have been based on a commitment to preventing the arrival of refugees (Hathaway, 1992).
8 As Agier has also argued, the action of European countries has moved from “responsibility to protect” to “externalization of the responsibility of protection” (Agier, 2013), an aspect that specifically affects the “protection lite” referenced by Gammeltoft-Hansen (2011b).
9 As Fitzgerald recently indicated, states have “avoided” the asylum regime through the manipulation of territoriality by an architecture of repulsion that keeps applicants away from spaces where they can seek protection (Fitzgerald, 2019, p. 6).
10 A technician from a social organization who works in Melilla expressed this situation during one of the interviews: “The border is impassable for Africans… How are they going to approach it? The Moroccan gendarmerie does not let them... so irregular entry is the only way out... For Africans, it is impossible to access asylum at the border” (interview with the president of an NGO that assists immigrants in Melilla, May 2016). A jurist who works on the southern border also summarized the situation bluntly:
The African collective, regardless of the country and despite the UNHCR mandates referring to specific situations in African countries, seems to only be economic immigrants, and consequently, access to asylum at the border is impossible; they are prohibited. They are vetoed, why?... by the externalization of the southern border by Spain (interview with a lawyer from the Bar Association of Melilla, June 2016).
11 Expulsion or hot return is described as follows:
the actions of the State Security Forces and Corps consisting of the handover to the Moroccan authorities, through non-legal procedures, of foreign citizens who have been intercepted in the area of Spanish sovereignty without following the legally established procedure or complying with internationally recognized guarantees (Martínez-Escamilla 2017, p. 60).
According to Martínez-Escamilla, this term is applicable when it is applied to people who are intercepted jumping the border fences or who have accessed the cities of Ceuta and Melilla by sea or reached one of the islands of Spanish sovereignty located off the coast of Morocco.
12 In the political arena, this has led to significant confrontations between different conservative governments of the Popular Party (Partido Popular), opposition groups, civil society, experts and international organizations, which have criticized and condemned not only these practices but also the most recent legal reforms aimed at providing legal protection for this type of return, issues that were frequently pointed out by the interviewees during our fieldwork (see also Martínez-Escamilla, 2017; López-Sala, 2020). The legal controversy has had a broad scope, with important implications for the entirety of European border policy. First, the judgment of the European Court of Human Rights (N. D and N. T v. Spain [nos. 8675/15 and 8697/15]) of October 2017 (Sánchez-Tomás, 2018; Solanes, 2017) condemned Spain for violating Article 4 of the European Convention on Human Rights by stating that in cases of such returns, migrants are not afforded any identification procedure, nor do they have the opportunity to express their desire to request asylum. More recently, and in a contrary direction, the controversial February 2020 ruling of the same court dismisses the previous assumption that Spain did not violate this article of the European Convention (for more details, see Carrera, 2020).
13 This procedure of inadmissibility for processing is a Spanish and Portuguese peculiarity among the European countries that make up the southern European border (Fullerton, 2005); however, over the last two decades, all of these countries have developed specific mechanisms for managing border applications, such as rapid procedures or the recent “hot spots” approach (Casolari, 2015). The enactment of other measures, such as outsourcing and hot returns, occurred earlier and more rapidly in the Spanish case than in the cases of Spain’s European neighbors (Godenau & López-Sala, 2016).
15 In this regard, Valles highlights the following:
This provision was appealed by the ombudsman to the Constitutional Court, which nevertheless dismissed the appeal considering that it was not an arrest, but a detention, and therefore, it did not violate the Magna Carta (Valles, 2016, p. 231).
16 It is illustrative that although Spanish asylum laws contemplated permitting requests for asylum to be made at the land borders of Ceuta and Melilla starting the mid-1990s, until 2014, no such requests were made. In fact, since the opening of an office at the border post of Tarajal (Ceuta) in March 2015, no application for international protection has been made. According to UNHCR data, between October 2014 and July 31, 2017, 9 760 people applied for international protection at the Beni Enzar border post in Melilla. Of the applicants, 90% were Syrian citizens, and the rest were from Morocco, Yemen and Palestine. In 2018, this trend was maintained, according to the most recent reports of the Spanish Commission for Refugee Assistance (Comisión Española de Ayuda al Refugiado - CEAR). Throughout 2018, 2 800 requests for refuge were made at the Beni Enzar border post, mainly from people from Syria, Palestine and Yemen (CEAR, 2018, 2019).
17 The Cetis are centers for temporary stay with a semiopen regime; they are under the direction of the Ministry of Social Affairs and Labor, and immigrants and asylum seekers in Ceuta and Melilla temporarily reside in them until their legal situation is resolved.
18 The humanitarian transfer program, which lacks legal regulation, is a mechanism that began to be used to avoid the lack of resources and the saturation of reception centers resulting from the increase in arrivals to both Ceuta and Melilla and to the Canary Islands in the mid-2000s. As of 2015, in the case of asylum seekers and refugees, humanitarian transfers began to be applied almost exclusively to Syrian nationals. Hence, social organizations have reported discrimination based on nationality in the application of these measures (CEAR, 2018; Amnistía Internacional, 2016).
19 This was expressed by one of our interviewees in Melilla:
because there were no petitions... because there was no asylum problem in Spain, but of course there is... that is, in the other countries, there were thousands of asylum seekers, and Spain never had anything, so how is it possible; how can it be?...In Spain, there is no request for asylum (...), there were no asylum seekers because it was a punishment. Asking for asylum meant receiving a punishment from the administration, so people did not ask for asylum. It is not because there were not any... (interview with the president of an NGO that assists immigrants in Melilla, May 2016).
20 Among them, the sentences of the Superior Court of Justice of Andalusia of January 13, 2011, and February 2012 and of the Superior Court of Justice of Madrid of May 11, 2015 and October 30, 2018.
Spanish. PhD. in sociology from the Universidad Complutense de Madrid (Complutense University of Madrid) and head scientist at the Institute of Economics, Geography and Demography of the Spanish National Research Council (Consejo Superior de Investigaciones Científicas - CSIS), Spain. Research lines: comparative study of migration policies and the social and political dynamics related to irregular immigration). Recent publication: López-Sala, A. & Godenau, D. (Coord.). (2017). Estados de contención, Estados de detención. El control de la inmigración irregular en España. Bercelona: Anthropos.
Spansh. Graduate in sociology and social work (UCM, UCLM) and master's degree in migratory studies and cooperation studies (UPCO). She is a predoctoral researcher at the Institute of Economics, Geography and Demography of the CSIC, where she has completed a doctoral thesis on refuge management policies in Spain (2020). She is currently a professor in the master's degree program at the Universidad Pontificia (Pontifical University). Research areas: refuge policies and refugee citizenship in Spain and Europe. Recent publication: Garcés Mascareñas, B. & Moreno-Amador, G. (2019). The Multilevel Governance of Refugee Reception Policies in Spain. Ceaseval. Research on the Common European Asylum System, (18).
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