IMPLEMENTATION OF THE LAW RELATING TO DEVOLUCIÓN AND EXPULSIÓN

The substantive areas of the immigration law and regulation that seem to engender the most confusion among immigration lawyers, aid organizations, government officials, and migrants are the legal concepts of expulsión and devolución and the applicable procedures required by Spanish law. Not surprisingly, we found gross disparities in the treatment of similarly situated migrants, depending on their point of entry. Our research indicates that the unchecked, ill-informed, and arbitrary decision-making of certain officials results in serious violations of migrant rights.

Devolución

Under Spanish law, devolución is a form of expedited repatriation applicable to two categories of migrants, those found illegally entering Spain (such as migrants arriving by patera)²⁸ and those migrants previously expelled from Spain by the standard expulsion process (i.e., with an expulsion order).²⁹ Devolución of migrants found illegally entering Spain must be executed within seventy-two hours of entry by returning applicable migrants to the country from which they departed or transited.³⁰ For example, migrants attempting to enter Spain via the North African cities of Ceuta and Melilla, along the Andalucian coast, or from the Canary Islands may under Spanish law be repatriated by devolución to Morocco. Because the Moroccan government does not generally permit the repatriation to its territory of non-Moroccan nationals such as Algerians and sub-Saharan African migrants, the practice of devolución has become an immigration procedure used almost exclusively for the repatriation of Moroccan migrants from Spain back to Morocco. Unlike deportations carried out by ordinary expulsion procedures, which have the effect of registering the migrant in the Schengen database system and preventing future regularization³¹ in Spain and other Schengen countries,³² deportations by devolución are not recorded and have no lasting effect on the ability of migrants to regularize in Spain.

Human Rights Watch researchers identified wide variations in the authorities' application of the devolución concept, which were in a number of cases inconsistent with Spanish law. For example, as mentioned above, devolución is intended for the immediate repatriation of migrants who are found illegally entering Spain or who were subject to a previous expulsion order. Spanish law does not permit detention in excess of seventy-two hours in cases in which migrants found illegally entering Spain are subject to devolución.³³ Courts may only order the transfer of migrants to longer-term internment centers in cases where expulsion proceedings, distinct from the process of deportation by devolución for illegal entry, have been initiated. Yet, a number of the migrants Human Rights Watch interviewed in the Canary Islands showed us court orders for their detention in internment-type facilities, such as the makeshift airport detention centers on Fuerteventura and Lanzarote, pending deportation by devolución.³⁴ Human Rights Watch researchers also found that some migrants detained for more than seventy-two hours (in some cases for up to forty days) on the basis of their being found illegally entering Spain were still deported by a process of devolución.³⁵

In Melilla, Human Rights Watch research also raised concerns that repatriation by devolución is misapplied to some migrants who have been present in the territory for more than seventy-two hours and were not subject to a prior expulsion order. A number of migrants told Human Rights Watch that they were afraid to go into town because the police sometimes arrest migrants there and deport them to Morocco by devolución, telling the Moroccan authorities that they had just been found illegally entering Spain.³⁶ At the time of our visit to Melilla in November 2001, a number of Algerian migrants were sleeping in filthy, makeshift shelters outside the government-established temporary residence facility (Centro Estancia Temporal de Inmigrantes (CETI) (The Center for the Temporary Residence of Immigrants)), without access to food, water, sanitary facilities, or medical care. The migrants with whom we spoke-some of whom had family members in the CETI facility and had been in Melilla for more than a month-told Human Rights Watch that they were afraid to register their presence in Melilla, a condition for entering the housing facility, because the police would deport them (by devolución) without an opportunity to be heard.³⁷

At a minimum, the lack of clarity and predictability regarding these migrants' status has humanitarian consequences for them. Moreover, their accounts suggest that in at least some cases the authorities misapply the devolución concept to migrants who have been in the territory more than seventy-two hours and were not subject to a prior expulsion order. The chief of cabinet in the office of the government delegate in Melilla, for example, told Human Rights Watch "devolución is always when expulsion (from Spain or another European country) happened previously."³⁸ Given that the vast majority of migrants arriving in Melilla, as in Ceuta or along the Andalucian coast, do not have identification documents through which past expulsion orders could be traced in the short period typically preceding their deportation, it is simply not plausible that past expulsion orders form the basis for applying devolución in many cases in Melilla. Rather, it appears that the authorities in Melilla have interpreted the devolución concept in a manner that enables them to repatriate large numbers of migrants, particularly Algerians, regardless of the length of their stay in Spain or the existence of a past expulsion order.

When Human Rights Watch met with officials at the Spanish National Police headquarters in Madrid, Head of the Office for Foreigners and Documentation Manuel Prieto confirmed that devolución should take place within seventy-two hours. He noted, however, that in the case of Algerians, they can be sent back later with devolución orders, even "if they are in the street."³⁹ Our researchers explained that some Algerians were present in Spain for more than one month and asked whether they, too, could be deported by a process of devolución, despite the fact that authorities were aware of the longevity of their stay and the absence of a pre-existing order for devolución or expulsion. Manuel Prieto responded that, "[t]he law permits two possibilities: 1) if they never registered and the police don't know . . . then there are no roots in Spain; and 2) in Ceuta and Melilla they don't have the right to go to the peninsula."⁴⁰

Human Rights Watch investigators found yet another approach to devolución along the Andalucian coast, where migrants apprehended while illegally entering Spain-to whom devolución should be applied-face expulsion proceedings and court-ordered detention in longer-term internment centers, instead of devolución. In October 2001, Human Rights Watch interviewed five women from The Philippines and twelve men from sub-Saharan African countries, such as Sierra Leone and Nigeria. These migrants had all been detained and transferred to the Capuchinos Internment (detention) Center in Málaga by court order immediately after their arrival on the Andalucian coastline by patera.⁴¹ According to the office of the Ombudsman, the initiation of expulsion proceedings against such migrants is a misapplication of Spanish law, which specifies devolución as the applicable form of repatriation in such cases.⁴² Some migrants who were improperly detained immediately after they attempted to enter Spanish territory illegally along the Andalucian coast have obtained court-ordered release on these grounds.⁴³

In short, in the Canary Islands, migrants with an order for repatriation by devolución are being detained as though they were in expulsion proceedings, but then nonetheless repatriated by devolución after the permissible seventy-two-hour period has elapsed. Similarly, some migrants arrested in Melilla, particularly Algerians, face repatriation by devolución, regardless of the length of their stay in Spain or the existence of a prior expulsion order. In a different variation, migrants arriving along the Andalucian coast, who should be repatriated by devolución, face detention in internment facilities and expulsion proceedings instead. In reality, there is little discernible difference between these groups of migrants, except their points of entry to Spain. Rather, it appears that for certain categories of migrants, local and regional authorities are improvising the implementation of devolución provisions of Law 8/2000 to address the particular dimensions of illegal migration in their localities. The result is erroneous and arbitrary decision-making in violation of migrants' rights under Spanish, regional, and international law.

Expulsión

Human Rights Watch researchers also identified arbitrary regional disparities in the authorities' approach to expulsion orders, often to the disadvantage of the migrants who are then permanently denied status in the country regardless of whether consideration of the merits of their individual cases, had it occurred, would have provided a legal basis for their presence in Spain. Under Spanish law, an expulsion order may be issued to expel or deport a person from Spanish territory for reasons such as illegal presence in the country or conviction of serious crimes. An expulsion order may be issued in lieu of the sanction of a fine to migrants who violate certain Spanish laws, for example, by living and working illegally in Spain. Authorities may also issue expulsion orders to foreign nationals who have been convicted of crimes sanctioned with a penalty of more than one year of imprisonment.⁴⁴ Migrants may be held in detention pending the issuance of an expulsion order once the proceedings have been initiated, but have the right to appeal the request for expulsion as well as the right to counsel and translation and interpretation services in connection with the expulsion process. Depending on the type of expulsion order, migrants may be expelled from Spanish territory either immediately or within a fixed time period of not less than seventy-two hours.⁴⁵

In practice, the authorities' approach to expulsión varies in ways that have a significant impact on the rights that migrants subsequently enjoy. Specifically, in Ceuta and along the Andalucian coast, Human Rights Watch found that the authorities routinely issue expulsion orders to migrants they deem to have no right to stay in Spain, without regard to whether they can actually be returned to their country of origin or to the country from which they departed to enter Spain. Many of those migrants who receive expulsion orders cannot be returned because they lack documentation of their country of origin or their country of origin will not accept them back. In such cases, the purpose of the expulsion orders seems to be simply to process the case, not to commence repatriation. A representative of a migrants' aid organization in Algeciras described a typical case as follows: "They are kept in the police station the minimum time. It's not comfortable. The police have to give food and water; it's a bother. So they put them on the street. Migrants leave the police station with this [order for expulsion] and that's it."⁴⁶

The Spanish National Police in Ceuta appear to initiate expulsion proceedings as a matter of course against undocumented migrants when they register at the police station, which they must do to apply for asylum or regularization or to gain admission to the government-run reception center. Neither police officers nor lawyers explain the foreigners' law to migrants or the fact that, by registering, they are inadvertently requesting expulsion from Spain. This practice seems particularly prevalent in the Ceuta authorities' handling of Algerian migrants' registration. As Deputy Chief of Documentation for the Spanish National Police in Ceuta Ramon Capdevila explained:

In Ceuta, the expulsion order paradoxically enables migrants to travel to the Spanish peninsula. When Human Rights Watch asked the Government Delegate for Ceuta about the practice of giving migrants expulsion documents as a matter of course and its effect on Algerian migrants in the city, he confirmed that this is "the strategy because this will allow them to get to the peninsula [where] they can start an appeal against the process or arrive in Spain to get lost or keep on to France or the Benelux countries."⁴⁸ In fact, according to migrants and aid organizations, the Spanish authorities themselves pay for migrants' transportation to the mainland by ferry.⁴⁹

While there is nothing legally incorrect about the issuance of expulsion orders against migrants who cannot be returned to their countries of origin, the policy has humanitarian consequences that raise concern. Significantly, an expulsion order gives migrants no right to work, and upon its issuance, they may never regularize their status in Spain or in another Schengen country.⁵⁰ The authorities' approach to expulsion in Ceuta and along parts of the Andalucian coast simply sweeps large numbers of migrants into a permanently illegal existence in Spain.⁵¹ Authorities in Ceuta justify this course of action by pointing out that they:

The authorities in other parts of Spain have taken a different approach, however. If illegal migrants arriving in Melilla and other parts of Spain cannot be returned to their country of origin, they are regularly granted residence and work permits on the basis of a "humanitarian exception" or simply allowed to live illegally in Spain.

Regarding the handling of undocumented migrants in the Canary Islands, the Ombudsman has recommended that:

The impact of the nearly automatic issuance of expulsion orders for certain categories of migrants in Ceuta and along the Andalucian coast is particularly troubling in light of the widespread confusion among migrants regarding such orders. According to one organization working with migrants, "[m]any think they are legal with this paper! Many times they have come here to show us their papers and say to Acoge, `Look, I'm legal.'"⁵⁴ Not a single migrant with whom Human Rights Watch spoke in Ceuta demonstrated any understanding of the effect an expulsion order had on his or her legal status in Spain. Rather, they uniformly explained that the police were sending them carte blanche to the mainland so they could work.⁵⁵ Many of the undocumented migrants Human Rights Watch interviewed in Ceuta said they had applied for "work papers" and that they knew they would be getting them soon, because that is what the police had told them. Other migrants said they had applied for "expulsion," but explained that this meant they could go to the peninsula.⁵⁶

In contrast, migrants in Melilla expressed fear and uncertainty about police expulsions and the fact that on any day the police could show up with their list and either take them to the mainland for expulsión or repatriate them directly by devolución to Morocco.⁵⁷

Migrants' confusion about their status and rights is exacerbated by the lack of procedural safeguards, detailed below, that plague the Spanish authorities' implementation of Law 8/2000. Deprived of the information, translation, and legal services required by Spanish law, migrants accept the expulsion orders, foregoing appeals and neglecting to advance alternative bases upon which they may be entitled to remain in Spain, such as their demonstrable roots in Spain, humanitarian considerations, or protected refugee status. In turn, many of these migrants lose the opportunity they might have otherwise enjoyed to regularize their status. The end result of the authorities' approach to expulsión in Ceuta and along the Andalucian coast is a serious distortion of Spanish immigration law, creating a large population of permanently illegal migrants in Spain.

28 In recent years, Spain, like other European border countries, has seen an increase in the movement of illegal immigrants to its shores via small raft-like boats (pateras). Migrants to Spain arrive along the Andalucian coast across the Gibraltar Strait and to the Canary Islands from the North African coast.

29 See Article 58 of Law 8/2000 (Regarding the Rights and Freedoms of Foreign Nationals Living in Spain and their Social Integration) in combination with Section 5.a, Article 138 of the law's Regulations for the Application of Spanish Law on Foreign Nationals. For discussion of Spanish law on expulsions, refer to the "Expulsión" section below.

30 The Ministry of Interior departments for immigration and foreigners and documentation confirmed this interpretation in meetings with Human Rights Watch. Human Rights Watch interview, Carlos Guervós, deputy director of immigration, Ministry of Interior, Madrid, November 12, 2001; Human Rights Watch interview, Manuel Prieto, head of foreigners and documentation department, José García Santalla, chief of central foreigners unit (Foreigners and Documentation Department), and José Ramón Pérez García, chief of statistics, Spanish National Police (within the Ministry of Interior), Madrid, November 14, 2001. Although Spanish law does not concretely set forth that devolución of migrants found illegally entering Spain must be executed within seventy-two hours of their entry on Spanish territory, the Ministry of Interior and immigration lawyers have interpreted the law in this way. The reasoning behind this interpretation is as follows: Spanish law prohibits the detention of any person beyond seventy-two hours without a judicial order and Spanish Law 8/2000 does not provide for the prolonged (beyond seventy-two hours) detention of this particular category of migrants, even by judicial order. Thus, these migrants can only be detained for seventy-two hours, during which time devolución must be executed or the migrant should be released. For further discussion, see footnote 33.

31 By "regularization" Human Rights Watch means the ability of migrants to secure legal status in a country-on a permanent or temporary basis. Many West European countries sponsor "regularization programs" for undocumented migrants who wish to secure legal status. Such programs often require, for example, the presentation of documents proving that a migrant has lived and worked in a country for a specific period of time, and that he or she has a current offer of work.

32 In 1985, five European states (France, Germany, Belgium, Luxembourg, and the Netherlands) signed an agreement creating a border-free territory within their external borders. A further convention, which was drafted and signed on 19 January 1990 and came into effect in 1995, abolished the internal borders of the signatory states and created a single external border where immigration checks are carried out in accordance with a single set of rules. In the late 1990's, this border-free zone, "the Schengen area" (named for the town in which the agreement was concluded), expanded to include all the European Union members states, with the exception of the United Kingdom and Ireland. One of the core features of the creation of the Schengen system is the establishment of an automatic network that allows all police stations and consular agents from Schengen member states to access common data. Placement into the Schengen Information System (SIS) on the basis of the denial of entry to a territory or for the purpose of recording the issuance of an expulsion order from a member state effectively bars future entry of such persons into the same and all other Schengen member states' territory. For more detailed information, refer to: http://europa.eu.int/scadplus/leg/en/lvb/l33020.htm, (accessed June 10, 2002).

33 Detention of migrants beyond the initial seventy-two hours requires a court order for the migrant's detention, or internment, in an official internment (prolonged detention) center. Because Spanish law does not specify that migrants who were found illegally entering Spain and who are thus subject to devolución may be interned, as opposed to migrants who have previously been expelled from Spain by expulsion order (also migrants for whom devolución is envisioned) or migrants who are subject to deportation on the basis of retorno or expulsión, the Ministry of Interior, immigration lawyers, and Algeciras Court of Instruction Number Five have interpreted Spanish law as prohibiting the detention of migrants subject to devolución (for illegally entering Spain) beyond seventy-two hours. The Algeciras court decision holds as follows:

See Court of Instruction Number Five, Algeciras, August 31, 2001; Human Rights Watch interview, Carlos Guervós, deputy director of immigration, Ministry of Interior, Madrid, November 12, 2001; Human Rights Watch telephone interview, José Luis Rodríguez, president of Andalucía Acoge and lawyer for migrants in the Málaga Internment Center, October 17, 2001; Human Rights Watch interview, Cristina Olmedo, lawyer, Red Acoge, Madrid, October 11, 2001 and June 10, 2002; Human Rights Watch interview, Rafael González, lawyer for migrants in the Málaga Internment Center, Málaga, October 22, 2001; Human Rights Watch telephone interview, Carlos Álava, legal director, Médicos Sin Fronteras, January 18, 2002. See also Article 58(5) of Law 8/2000 (Regarding the Rights and Freedoms of Foreign Nationals Living in Spain and their Social Integration), permitting internment of migrants who cannot be returned within the initial seventy-two hour period where said migrants have previously been expelled from Spain and are subject to devolución on this basis.

34 Human Rights Watch interviews with migrants, Las Palmas, October 29-November 3, 2001.

35 See Human Rights Watch, "The Other Face of the Canary Islands: Rights Violations Against Migrants and Asylum Seekers," A Human Rights Watch Report, vol. 14, no. 1 (D), February 2002. Some migrants arriving in the Canary Islands are held in internment on the basis of an order for their deportation in accordance with the law on retorno (form of repatriation). Migrants held on the basis of retorno, as distinct from devolución, may legally be placed in internment if, after seventy-two hours, a judge makes the order. See Article 60 of Law 8/2000 (Regarding the Rights and Freedoms of Foreign Nationals Living in Spain and their Social Integration). While some authorities in the Canary Islands argue that devolución should be viewed as retorno in order to legitimize the detention of migrants after the initial seventy-two-hour period, both judges and lawyers working on the islands have expressed their disagreement with this interpretation. Human Rights Watch interview, CEAR (Las Palmas), Las Palmas, November 2, 2001. Retorno and devolución are two distinct legal concepts. Retorno applies in cases where a migrant's entry in Spain is rejected (such as in airports or at a border crossing where technically a migrants' presence in Spain is not recognized as presence in the "territory"). In contrast, devolución applies to migrants who are considered to be in Spain, but who are subject to immediate repatriation.

36 Human Rights Watch interviews with migrants, CETI, Melilla, November 8, 2001.

37 Human Rights Watch interviews with Algerian migrants outside CETI, Melilla, November 8, 2001.

38 Human Rights Watch interview, Rocío Rodríguez Bayón, chief of cabinet, Office of the Government Delegate for the autonomous city of Melilla, Melilla, November 9, 2001.

39 Human Rights Watch interview, Manuel Prieto, head of foreigners and documentation department, José García Santalla, chief of central foreigners unit (Foreigners and Documentation Department), and José Ramón Pérez García, chief of statistics, Spanish National Police (within the Ministry of Interior), Madrid, November 14, 2001.

40 Ibid.

41 Human Rights Watch interviews with migrants in the Capuchinos Internment Center, Málaga, October 22, 2001.

42 Ombudsman Annual Report, presented before the Spanish Parliament on October 8, 2001, Section 3.1.2.4, pp. 65-66. The Ombudsman's report further explains that the initiation of expulsion proceedings (that result in the issuance of an expulsion order) would act as a form of double sanction for one act and that for many of these migrants the expulsion order may never be realized, having "[t]herefore, the only practical effect of . . . obstruct[ing] the regularization of these persons via the appropriate administrative authorization, leading them to become marginalized in society." Ibid.

43 On September 2, 2001, Court of Instruction Number Five in Algeciras released thirty-one Nigerians who had been detained in Capuchinos Internment Center (Málaga) for fourteen days. Leonor García, "A Judicial Order Finds the Detention of Immigrants Arriving in Pateras Illegal," El País, September 2, 2001.

44 See Law 8/2000, Articles 53 & 57.

45 See Law 8/2000, Articles 63 & 64.

46 Human Rights Watch interview, Algeciras Acoge, Algeciras, October 15, 2001. See also Ombudsman Annual Report, presented before the Spanish Parliament on October 8, 2001, section 3.1.2.4, "Entry of undocumented persons via the Andalucian coastline," pp. 65-66.

47 Human Rights Watch interview, Ramón Capdevila, deputy chief of documentation, Spanish National Police in Ceuta, Ceuta, October 19, 2001.

48 Human Rights Watch interview, Luis Vicente Moro, government delegate for the autonomous city of Ceuta, Ceuta, October 19, 2001.

49 Human Rights Watch interview, Hermanos Franciscanos de Cruz Blanca (Franciscan Brothers of the White Cross), Ceuta, October 18, 2001; Human Rights Watch interviews with migrants, Ceuta, October 18-19, 2001.

50 See e.g., Human Rights Watch interview, Ramón Capdevila, deputy chief of documentation, Spanish National Police in Ceuta, Ceuta, October 19, 2001, noting, "from the moment they [migrants] get expulsion papers, they are in SIRINE. There is a list of non-admissible persons, which is specifically for these people who have been served expulsion orders. . . . Consequently, [they] have no further opportunity to regularize their situation in the Schengen area." For an explanation of the Schengen system, see footnote 32.

51 Human Rights Watch interview, Álvaro García, lawyer for Málaga Acoge, Málaga, October 22, 2001. Attorney García works with migrants along the Andalucian coast, including numerous migrants who arrive from Ceuta. Although a previous regularization program for foreigners in Spain permitted migrants with expulsion orders to apply for an annulment of their orders for the purpose of regularizing their status, this possibility does not exist for migrants who arrived in Spain after June 1999. Specifically, the regularization that took place when the government replaced Spanish Law 7/85 on Foreigners with Law 4/2000 permitted all migrants who could prove they were in Spain prior to June 1999 to annul past expulsion orders. Despite this provision, however, organizations working with migrants in Madrid have expressed concern that a number of their clients coming from Ceuta-some of whom have been in Spain more than five years-have expulsion orders that cannot be annulled and are, consequently, unable to regularize their situations. Human Rights Watch interview, lawyers working for CEAR, Madrid, October 26, 2001. The rules governing the most recent regularization-which began in January 2001 after the foreigners' law was again amended (resulting in the current law, Law 8/2000)-did not introduce a similar clause permitting migrants to annul their expulsion orders in order to regularize their status. See generally Law 8/2000. Human Rights Watch interview, Arsenio García, lawyer, Madrid, November 5, 2001; Human Rights Watch interview, Concha Badillo, legal coordinator, MSF, March 26, 2002. Government Delegate Moro in Ceuta confirmed concerns that Ceuta's practice of routinely issuing expulsion orders to migrants has the permanent effect of prohibiting migrants' regularization:

Human Rights Watch interview, Luis Vicente Moro, government delegate for the autonomous city of Ceuta, Ceuta, October 19, 2001. Migrants who have been sent to the peninsula with expulsion orders will not be among those migrants permitted to apply for these contingency spots. Ibid.

52 Human Rights Watch interview, Ramón Capdevila, deputy chief of documentation, Spanish National Police in Ceuta, Ceuta, October 19, 2001.

53 Ombudsman Annual Report, presented before the Spanish Parliament on October 8, 2001, section 3.1.2.3, "The Center for the Temporary Residence of Immigrants (CETI) in Las Palmas," pp. 64-65.

54 Human Rights Watch interview, Algeciras Acoge, Algeciras, October 15, 2001.

55 Human Rights Watch interviews with migrants, Ceuta, July 28, 2001 and October 18-19, 2001.

56 Ibid.

57 Human Rights Watch interview, migrants at CETI, Melilla, November 7, 2001.