On Friday morning, Europeans woke up to unsettling news. Within 24 hours, approximately 60,000 migrants successfully managed to reach the Spanish enclave of Ceuta in North Africa, and several dozen have been reported dead in the attempt to swim across the border. Spanish Prime Minister Pedro Sánchez has ordered the military to support the Civil Guard on the ground. And while news reports that many migrants in the meantime moved back to Morocco, key questions remain. What caused this sudden influx? Does EU law offer the procedures and mechanisms to respond to the spontaneous arrival of such large numbers of people? And what do these events reveal about the internal functioning of the EU’s migration and asylum regime and solidarity between Member States?

While recent reforms provide Spanish authorities and EU institutions with a more comprehensive toolkit to respond to mass arrivals, the events in Ceuta expose the volatility of a legal regime that accepts that large numbers of persons remain trapped at the external border without any real prospect of entry. At the same time, the reactions of the other Member States illustrate that, notwithstanding the changes brought about by the New Pact on Migration and Asylum, fundamental political disagreements over the Union’s response to irregular migration remain unresolved.

Playing the Blame Game

One of the most pressing questions regarding this sudden migratory influx was what had caused it. Surely, the desolation of being trapped for a very long time at border walls without any real prospect of entry plays a large role in this regard. But beyond this, political leaders were quick to point fingers: the Spanish government blamed human trafficking networks, whereas Manfred Weber suggested that these events are “a direct consequence of the pull factor of massive regularisation doubled with instrumentalisation of illegal migration.”

While the factual validity of these statements is hard to verify, three points are worth noticing. First, the large-scale regularisation program introduced by the Spanish government earlier this year – which allows up to 500.000 migrants to apply for regularisation – does not apply to prospective immigrants. It is a “one-off measure”, requiring beneficiaries to have been staying in Spain before 31 December 2025. For this reason, migrants currently trying to reach Spanish territory will not qualify for this scheme. Although the symbolic value of such a measure should not be understated, migrants may either be misinformed or led to believe that Spain may adopt a similar program in the future, but it is too early to say whether this had been an actual motive for individuals to try to make the dangerous passage into Ceuta.

A second element of the ongoing blame game concerned the accusation that Moroccan authorities had deliberately instigated these events to put pressure on Spain and, by extension, the EU. This allegation is set against the backdrop of recent tensions between the two governments after Spain had agreed to provide medical treatment to a leader of the Polisario Front in Western Sahara. At the time, Morocco had been accused of instrumentalising the arrival of migrants in Ceuta to exert pressure on the Spanish government. Unlike then, Morocco currently appears to cooperate with Spanish authorities to discourage further border crossings and to enable swift return of individuals.

A third explanation for the sudden influx concerned a recent judgment by the Spanish Supreme Court, which had declared “hot returns” at sea unlawful – i.e. return without any substantive or procedural guarantees (for an analysis, see here). Irrespective of the question whether such “hot returns” may be compatible with fundamental rights obligations elsewhere (for a discussion, see here and here), the close temporal proximity between the judgment and events in Ceuta and the fact that individuals tried to swim across the border rally in favour of the presumption that this judgment might have set in motion the increase in spontaneous arrivals. This goes to show how volatile the external border regime in Ceuta and Melilla is, which offers virtually no prospect of entry for many categories of would-be immigrants. Still, the finding by the Spanish Supreme Court that “hot returns” cannot be applied when persons try to swim across the border does not create a gap in this legal regime. In recent years, several changes have been introduced in the EU’s legal framework that allow Spanish authorities to respond to situations of spontaneous mass arrivals.

The EU’s Crisis Preparedness

While the events in Ceuta will reasonably qualify as a stress test, the EU was not caught entirely off guard. Rather, several recent changes in the EU’s migration acquis had been aimed at strengthening its ability to respond to situations of mass arrival, and the situation in Ceuta may be a first opportunity to put these new arrangements to the test.

One of the key concerns of EU leaders, including Commissioner Brunner, related to the risk of onward movement of those migrants who managed to enter Spanish territory in Ceuta. To be sure, the geographical location of Ceuta and Melilla as Spanish exclaves on the African continent renders unauthorised onward movement just as cumbersome as crossing the Mediterranean via other routes. Moreover, special arrangements had been made in the Schengen acquis, to the effect that border controls between the towns of Ceuta and Melilla with Spain as well as any other Schengen Member States would be maintained (see here at III, final act III, lit. e). Still, the question may be raised whether irregular entry in Ceuta would imply that persons could be legally transferred to reception centres in continental Europe.

In this regard, it is worth noticing that recent reforms of the EU asylum acquis have significantly expanded the use of border procedures in the context of spontaneous arrivals at the external border. These procedures apply to the screening, asylum and return stage, and restrict the mobility of individuals, to the effect that individuals may not be allowed to move further inland pending the assessment of their case. Importantly, Spain had used the border procedure for persons who had climbed the border fence before, and the same approach appears to be suitable for the current influx of persons.

In such a situation, Spain would be obliged to carry out the relevant procedures, including – where applicable – an asylum procedure, but without having to formally authorise entry or allowing for onward movement. It should be acknowledged, in this context, that such a situation of mass arrival would strain any reception system. For that reason, it should be welcomed that initial criticism by other Member State governments has given way to a stronger emphasis on supporting Spain. At a practical level, EU-wide support could include the involvement of EU agencies, such as Frontex and the EU asylum agency. Moreover, Morocco has recently been placed on the EU-wide safe country of origin list, which can reasonably be viewed as limiting the chances of Moroccan nationals to successfully apply for international protection.

Where a border asylum procedure leads to a negative outcome, the new legal framework makes it mandatory to apply a return border procedure. This – again – implies that individuals are prevented from moving further inland. Return border procedures are time-barred, to the effect that an individual may not be kept in such a procedure for a period exceeding 12 weeks. Were the EU to activate the Crisis Regulation in response to the situation in Ceuta, this would extend this maximum time period by another 6 weeks (see Art 6 (1) (a) Return Border Procedure Regulation). While this would not be a carte blanche, it would buy Spain some time to hammer out and consolidate arrangements with Morocco to ensure that individuals are readmitted without any undue delay. Ultimately, this points to the role that time will play in the days and weeks to come. Cooperation with Moroccan authorities will be crucial, both to facilitate voluntary return of persons and to put into practice arrangements for readmission of individuals who are unwilling to return.

Suspending Spain’s Schengen Membership?

Following the events in Ceuta, several Member States voiced concerns that Spain’s membership in Schengen should be suspended. Such wording is, at best, misleading, given that there is no legal way to suspend a Member State’s Schengen membership. Rather, what Member States such as Italy or Denmark actually seem to propose is that internal border controls should be reintroduced with Spain. In legal terms, however, this qualifies as a temporary and exceptional measure that does not call into question the obligation of any Member State to respect the Schengen acquis.

The most extreme measure that can be adopted on the basis of the Schengen rules is laid down in Article 29 of the Schengen Borders Code. This provision empowers the Council to adopt a recommendation extending the maximum periods during which internal border controls may be kept in place. This mechanism is intended to apply to situations in which a persistent serious deficiency relating to the external border can be detected. While the situation in Ceuta may reasonably qualify as a serious deficiency, it remains to be seen whether the situation may improve or persist.

Political Capital

Given that no large-scale onward travel of irregular migrants to the Spanish mainland should be expected, the reintroduction of internal border control seems to be driven either by overstated precaution or by ulterior motives. For the Italian government, for instance, it may be a good occasion to discredit a long-time adversary whose responsibility for these events may be questioned (as set out above) and whose actions were rather decisive in bringing the situation back in line with Schengen rules. For Member States like Denmark and Germany, it may be a welcome opportunity to justify yet another prolongation of internal border control: the situation in Ceuta presents itself as a formidable excuse to carry on with a policy that is, by any reasonable measure, incompatible with the Schengen acquis.