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When the sea stops being a wall

Soraya Mohamedi Mohamed · Psychologist, specialist in Migration and Social Inclusion · Founder and chair of Ubuntu Canarias

A Supreme Court ruling limits summary pushbacks for people who cross by swimming. It coincides with a surge in crossings in Ceuta. What the ruling says, what it doesn't explain, and why it's worth looking beyond the coincidence.

On 8 July, Spain's Supreme Court confirmed something that might look like a technicality but actually carries very concrete consequences: people intercepted at sea while trying to swim into Ceuta or Melilla cannot be subjected to a summary pushback.

What the ruling actually says

Spanish immigration law allows what's known as "border rejection" — immediate expulsion, without individual identification or legal assistance — for anyone who crosses a physical containment barrier, such as a fence. The Supreme Court has established that the sea does not fall into that category. There is nothing material to "cross" in the water, so anyone intercepted while swimming must be subject to the ordinary return procedure, which carries more safeguards: a prior hearing, a reasoned decision and judicial review.

It's a ruling that sets binding case law. There is no appeal against it.

Less than ten kilometres, several hours of darkness

Between Fnideq (Castillejos) and Ceuta there are less than ten kilometres in a straight line, at the narrowest point of the strait. On paper, that sounds like little. In the water, at night, with no boat and no professional support, it's something else entirely.

Accounts from people who have made it describe three to four hours of continuous swimming, with no rest, through fog, wind and swell, guided only by the lights of the Ceuta coastline. Not everyone makes it. In recent days, several bodies have been recovered from the waters off Ceuta of people who did not complete the crossing.

The land border fence, six metres high with a double structure, has become almost impossible to cross. That's why more and more people are choosing the sea: not because it's easier, but because they believe it gives them more of a chance.

What has happened since the ruling

In recent weeks, Ceuta has seen a notable surge in crossings: between 1,500 and 2,000 people entered irregularly in barely ten days, most of them by swimming. The president of the autonomous city has spoken of a humanitarian emergency. The Civil Guard, through its professional association, has warned of a possible "pull effect" and has called for clear protocols in what it describes as an operational vacuum.

It's tempting — and understandable — to weave these two facts into a single story: the ruling would have opened a door, and thousands of people would be walking through it. But that reading calls for caution. Two things happening in the same period of time doesn't automatically mean one caused the other. Migrants' decisions rarely respond to a single factor, and even less to a court ruling that most people probably don't even know about in any detail.

Someone who decides to get into the water for three or four hours of swimming isn't doing it because of a legal technicality. They do it after having exhausted other routes, carrying the accumulated exhaustion of previous attempts, and working with information that arrives in fragments, sometimes distorted by those who profit from selling the crossing as safer than it is.

The question that's actually worth asking

Beyond its immediate effects, what this ruling brings into view is an underlying tension that runs through the whole of current European migration policy. The European Pact on Migration and Asylum, in force since June this year, is moving toward a model centred on border control and faster return procedures. The Supreme Court's ruling, by contrast, moves in the opposite direction: it expands safeguards rather than reducing them.

That contradiction isn't a problem of the court or of European law taken separately. It reflects a system that still hasn't resolved what role it wants to give individual rights when set against border management as a security issue. And that lack of definition is paid for, almost always, in the bodies of the people who cross.

One last thought

Behind every figure like "1,500 people in ten days" are decisions made under a kind of pressure most of us will never fully grasp: three hours swimming in the dark, the exhaustion of previous attempts, incomplete information, the calculation of a risk that no ruling can reduce. Understanding that context doesn't exempt institutions from legislating responsibly. But it should push us, before jumping to conclusions about cause and effect, to look more carefully at what lies behind each crossing.

— Soraya Mohamedi Mohamed · Psychologist, specialist in Migration and Social Inclusion