Spain's Supreme Court has issued a landmark ruling confirming that migrants intercepted at sea while attempting to reach the Spanish enclaves of Ceuta and Melilla cannot be subjected to summary returns, known colloquially as «devoluciones en caliente». The decision, handed down by the Fifth Section of the Administrative Litigation Chamber, interprets the country's Immigration Law and establishes that the legal provisions allowing immediate rejections at land borders do not apply to maritime interceptions.
The case originated from a complaint filed by an Algerian citizen who was returned to Morocco in November 2024 along with two other individuals while trying to swim to the coast of Ceuta. The plaintiff argued that he had been expelled without any legal procedure or formal resolution, thereby denying him the right to legal assistance and the opportunity to request international protection. He sought 6,000 euros in compensation for moral damages and a judicial declaration that measures should be taken to facilitate his return and readmission to Spain.
Lower courts had already ruled in favor of the migrant. A court in Ceuta and, subsequently, the High Court of Justice of Andalusia both determined that entering by sea by swimming does not involve crossing a «border containment element» as defined by the law, and therefore the summary return mechanism could not be applied. However, those earlier rulings did not grant the requested compensation. The Supreme Court has now upheld those decisions and rejected the appeal filed by the State Legal Service.
At the heart of the legal dispute was the interpretation of the tenth additional provision of Spain's Immigration Law. That provision states that foreigners detected on the border line of Ceuta or Melilla while attempting to overcome «border containment elements» to cross irregularly may be rejected to prevent their illegal entry. The key question was whether this provision could be extended to the maritime domain, effectively equating the sea with physical barriers such as fences.
The Supreme Court concluded that it cannot. The ruling explicitly states that «border containment elements» such as fences cannot be equated with technological surveillance devices like drones, thermal cameras, or sensors. These devices, the court noted, serve a monitoring and detection function rather than a physical containment one. They can detect the presence of individuals but cannot physically prevent the crossing of the border line or detain those attempting to do so.
The court further clarified that the provision in question applies only to those who attempt to cross the border by overcoming established physical containment structures, such as fences. It cannot be extended to all foreigners trying to cross the border irregularly, whether by land or by sea. The ruling draws on two previous decisions by the Constitutional Court on related matters, reinforcing the legal consistency of the interpretation.
Nevertheless, the Supreme Court left a door open for future policy changes. It noted that if the state were to establish physical containment elements at sea to protect the border line, then the relevant legal provision could become applicable. This caveat suggests that the ruling does not permanently close the possibility of maritime border controls but rather insists on the current legal framework's limits.
The decision has significant implications for Spain's migration policy, particularly in the waters surrounding Ceuta and Melilla, where attempts to reach European soil by swimming or small boats are frequent. Human rights organizations have long criticized summary returns as violating international law, including the principle of non-refoulement, which prohibits returning individuals to places where they face persecution or serious harm. The ruling reinforces the requirement for individual assessments and due process in such cases.
The Spanish government has not yet announced whether it will seek legislative changes to address the court's interpretation. The ruling comes amid ongoing debates in the European Union about migration management and border security, with member states grappling with how to balance humanitarian obligations with border control measures. The Supreme Court's decision adds a judicial layer to these discussions, emphasizing that legal safeguards cannot be bypassed even in the context of irregular migration at sea.
