You Climbed, You Never Arrived: The Legal Fiction Behind Spain's Hot Returns at Ceuta

Spain returns people who cross into Ceuta and Melilla straight back to Morocco, without individual assessment, asylum screening or any possibility of appeal. The practice is known as devoluciones en caliente. The doctrine rests on a legal fiction: that a person who has physically crossed onto Spanish soil has not, for the purposes of Spanish and EU law, actually arrived.[1]

The Grand Chamber of the European Court of Human Rights blessed a version of this fiction in N.D. and N.T. v Spain [GC] in 2020, in a judgment widely criticised by scholars, UN Special Rapporteurs, and human rights organisations. Understanding what the Court did and did not say is essential to evaluating claims from anyone who has crossed the fence.

What Is a "Hot Return"?

Devoluciones en caliente is the Spanish practice of physically handing back to Moroccan authorities any person apprehended on Spanish soil in the Ceuta or Melilla border zone, without:[2]

Formal identification. Individual removal decision. Assessment of asylum grounds. Assessment of vulnerability (age, medical, trafficking). Right to counsel. Interpretation. Right to appeal.

Persons are typically returned through the same fences they climbed, or through a gate directly to Moroccan Auxiliary Forces.

The Legal Fiction

The doctrine works by asserting that Spanish sovereign territory begins not at the physical boundary but at an "operational border" — the line where Spanish authorities are effectively able to receive an entry request.[3]

A person on top of the fence — not "in Spain" yet. A person who has descended into Spanish territory but is still in the "border zone" — not "in Spain" yet. Only a person who has passed formal border control has "arrived". Therefore, hand-back does not constitute expulsion because there was nothing to expel from.

The fiction is not accidental. It exists to disaggregate the moment of physical entry from the moment of legal entry, so that all the protections triggered by legal entry — asylum access, individual removal procedure, appeal — can be bypassed.

Spanish Codification (2015)

The Ley Orgánica 4/2015 on Citizen Security (widely known as Ley Mordaza) added a "tenth additional provision" to Ley Orgánica 4/2000 on the rights of foreigners.[4]

Key Text

The provision authorises "rechazo en frontera" — border rejection — of foreign nationals detected crossing "the border demarcation line" of Ceuta or Melilla, "with the aim of preventing their unauthorised entry into Spain".

Statutory Safeguards (In Theory)

Compliance with international human rights obligations. International protection accessible at authorised border posts. Special protection for vulnerable persons.

Statutory Safeguards (In Practice)

Authorised border posts largely inaccessible to sub-Saharan Africans — Moroccan forces prevent approach. No individual assessment recorded. No vulnerability screening at hand-back point. No interpretation. No documentation of returned persons.

N.D. and N.T. v Spain

N.D. and N.T. v Spain Applications Nos 8675/15 and 8697/15 [GC] (13 February 2020).[5]

Facts

August 2014 — mass crossing attempt at Melilla by ~600 sub-Saharan Africans. Applicants (Malian, Ivorian) climbed the fences. Reached the ground on the Spanish side. Guardia Civil immediately handcuffed and returned them through gates to Moroccan authorities. No identification, no interpreter, no procedure.

Chamber Judgment (2017)

Third Section held Spain violated Article 4 Protocol 4 (collective expulsion) and Article 13 ECHR (effective remedy).

Grand Chamber Judgment (2020)

Grand Chamber reversed by 16 votes to 1.

Held: no violation of Article 4 Protocol 4. Held: no violation of Article 13 ECHR.

The Court's Reasoning

The Grand Chamber accepted that the applicants had been within Spain's jurisdiction for Article 1 purposes but declined to characterise their return as "collective expulsion" because:[6]

The applicants had used force to enter — climbing fences in a large group. Legal entry routes were available at Beni Enzar border crossing. Legal channels for asylum applications from Morocco existed via Spanish embassies. Applicants had "voluntarily placed themselves in an unlawful situation".

Own-Conduct Exception

Court created what commentators call the "own-conduct exception" to Article 4 Protocol 4 — where an applicant used unauthorised force and legal routes were available, individualised procedure is not required.

Critique of N.D. and N.T.

The judgment has been extensively criticised.[7]

Structural Critique

Assumes legal entry channels are actually accessible to sub-Saharan applicants at Beni Enzar. They are not — Moroccan Auxiliary Forces systematically prevent approach. Assumes embassy asylum application is realistic. Spain has no consular asylum procedure at its Nador office; the general Spanish consular asylum route is theoretical rather than operational. Effectively conditions Convention rights on the applicant's manner of exercising them.

Doctrinal Critique

Judge Koskelo's partial dissent — inconsistent with prior Hirsi Jamaa v Italy [GC] and Sharifi v Italy and Greece. Introduces conduct-based limitation to a prohibition previously treated as absolute. Blurs the line between border-control interest and fundamental rights.

Practical Critique

Signals to other Member States that de facto hot returns can be defended if structured with theoretical legal alternatives. Hungary and Latvia subsequently invoked similar reasoning. Extended pushback practices in the Mediterranean.

What ND & NT Did NOT Do

Critical to understand: the judgment did not displace other protections.[8]

Article 3 ECHR Preserved

Absolute prohibition of return to torture/inhuman treatment. Applies regardless of manner of entry. Hirsi Jamaa v Italy [GC] Application No. 27765/09 (2012) framework intact.

1951 Convention Article 33

Non-refoulement absolute obligation. Applies wherever refugees under jurisdiction. UNHCR ExCom Conclusion No. 6 on non-refoulement.

UN Convention Against Torture Article 3

Absolute torture non-refoulement. UN CAT Committee has criticised Spain in A.D. and others v Spain.

EU Charter

Article 18 — right to asylum. Article 19 — protection from removal. Article 4 — prohibition of inhuman/degrading treatment.

ECtHR Post-ND & NT Cases

M.K. and Others v Poland Applications 40503/17, 42902/17 and 43643/17 (2020) — collective expulsion violation at Poland-Belarus border. A.A. and Others v North Macedonia Application No. 55798/16 (2022) — collective expulsion violation. Suggest ND & NT is limited to its facts.

Scope of the Own-Conduct Exception

Ceuta and Melilla Specific Issues

Sea Crossings

Persons crossing by sea around the fences into Ceuta harbour or Melilla port face different framework — Hirsi Jamaa maritime jurisdiction applies more clearly. Sea-side hot returns particularly vulnerable to Article 3 and Article 4 Protocol 4 challenge.

Unaccompanied Minors

UN Convention on the Rights of the Child Article 3 — best interests. Spanish legal duty to identify and protect. Hot returns of minors — clear violation. April 2024 Constitutional Court judgment tightening minor protections.

Access to Border Posts

Moroccan Auxiliary Forces systematically prevent sub-Saharan Africans from approaching Beni Enzar (Melilla) and Tarajal (Ceuta) border crossings — undermining the legal route on which ND & NT relied.

Spanish Constitutional Court

Spanish TC has considered hot returns in several judgments.[9]

STC 172/2020 (19 November 2020) — largely accepted the border rejection framework but required Article 3 and vulnerability safeguards. Ongoing constitutional challenges to specific applications. April 2024 STC affirmed constitutional duty to identify unaccompanied minors before return.

Asylum Access at Ceuta and Melilla

Formal asylum application at Ceuta and Melilla border posts is legally possible under Ley 12/2009.[10]

Legal Framework

Article 21 — application at border possible. Article 25 — special border procedure. Reception at oficina de asilo y refugio (OAR).

Operational Reality

Beni Enzar OAR in Melilla operates. Systematic differential access — Syrians typically allowed to approach; sub-Saharan Africans systematically prevented by Moroccan forces. UNHCR Spain, ECRE, Servicio Jesuita a Migrantes have documented pattern.

Litigation Strategy

For applicants challenging hot returns or their consequences:[11]

Document immediate request for asylum at fence (oral suffices). Document vulnerability factors (age, injuries, torture marks). Document inability to access official border post. Document conduct of Moroccan forces preventing approach. Preserve Article 3 ECHR claim. Argue distinguishable from ND & NT on specific facts.

EU Commission Position

European Commission and European Parliament have periodically criticised Spanish hot returns practice.[12]

Commissioner for Home Affairs has called for compliance with EU asylum acquis. No formal infringement proceedings launched. Renewed criticism in August 2026 following Sánchez distribution plan.

Beyond N.D. and N.T.

The doctrine's future is contested.

Subsequent Strasbourg cases (Poland-Belarus, North Macedonia) suggest the exception is narrowly bounded. EU Migration and Asylum Pact reforms 2024-2026 change procedural framework. Post-Sánchez distribution debate reopens political conversation.

N.D. and N.T. v Spain created a narrow, controversial exception — not a licence to bypass non-refoulement. The person requesting asylum at the fence, the minor, the visibly injured, the trafficked, the person from a country where the "legal route" is a fiction — all retain the protections that ECtHR and 1951 Convention preserve regardless of manner of entry.
ECtHR jurisprudence; Judge Koskelo dissent

Conclusion

Spain hot returns doctrine rests on the legal fiction of an "operational border" — a person on Spanish soil is not "in Spain" until formally processed. Ley Orgánica 4/2015 codified it. N.D. and N.T. v Spain [GC] (2020) partially blessed it via a controversial own-conduct exception. Article 3 ECHR, 1951 Convention Article 33, UNCAT Article 3, EU Charter Article 4 all remain intact and unaffected by the exception. Post-ND & NT cases (M.K. v Poland, A.A. v North Macedonia) suggest narrow reading. Sub-Saharan asylum access at Ceuta and Melilla systematically obstructed by Moroccan forces. See our companion rented fence article and who actually climbs article.