The Border and the Human: Ceuta, Migration and the Limits of State Power

1. Introduction

Migration has been a part of human history since long before civilisation took shape. The stories of migration extend to the furthest parts of the globe, from Africa to Asia to Europe and beyond. But where and how did we come to control this fragment of ourselves so tightly that it now poses a risk to human life? This article analyses and seeks to understand the current legal issue at the borders of Spain. It ultimately leads to the question: “To what extent can Spain exercise administrative discretion in controlling its borders before that discretion becomes an unlawful exercise of state power?”

On 30 July 2026, Ceuta experienced a mass maritime arrival of migrants from Morocco. Around 72,000 migrants¹ arrived in a single day, bringing a humanitarian, administrative and border-security crisis to the borders of Spain. The mass crossing resulted in dozens of deaths, with the figure reported by Spanish authorities reaching 83 by 9 August 2026.²

Sitting between the continents of Europe and Africa, Ceuta is a dramatic city of legal paradoxes. Geographically, it is on the African continent. Politically, it belongs to Spain. Legally, it stands at the frontier of the European Union. For those attempting to cross into it, these three realities converge at a border only a few kilometres wide. Bordering Morocco on one side, it lies where the Mediterranean Sea meets the Atlantic Ocean. Although Ceuta is part of the European Union, it is subject to specific provisions, such as those governing border checks.³ Its European history stretches back to the 1400s, and its status became more complex when “Portugal ceded Ceuta to Spain under the 1668 Treaty of Lisbon”.⁴ Today, its position creates a unique mix of Spanish sovereignty, Moroccan territorial claims, EU external border policy and stricter migration control practices.

2. The Legal Framework

The scale of the 2026 crisis has renewed attention on the legal mechanisms available to Spain when attempting to prevent irregular entry. Yet the legal question is not new. A recent judgment of the Spanish Supreme Court, concerning the interception of an Algerian national who attempted to reach Ceuta by swimming, provides a useful lens through which to examine the limits of Spanish border-control powers.

The tenth additional provision of Spain’s Organic Law 4/2000, “The Immigration Law”,⁵ which governs “the rights and freedoms of foreigners in Spain and their social integration”, allows border rejection when a person attempts to enter by land by crossing the border containment elements. The law contains a particular and unique mechanism called “Rechazo en frontera”,⁶ which allows the intercepting authorities to reject persons attempting to cross the border. “Rechazo en frontera” is not subject to the same ordinary procedural framework as other returns, although its application remains subject to applicable human-rights and international-protection obligations.

The Algerian national was intercepted on 14 November 2024 while attempting to enter Ceuta from the sea, swimming into Spanish territory. The Spanish authorities handed him over to the Moroccan authorities. The claimant argued that he had been deprived of procedural safeguards, as explained further in this article.

The legal significance of these facts became clear in the ruling of the Supreme Court of Spain, judgment 814/2026 of the Administrative Litigation Chamber, dated 29 June and publicised on 8 July. “The ruling clarified that persons intercepted at sea while attempting to enter Spanish territory could not be subjected to the same border-rejection procedure applicable to persons attempting to cross the border containment elements”.⁷ In the circumstances considered by the Court, this regime did not apply to the individual intercepted at sea while swimming towards Ceuta, as he had not attempted to overcome a border containment element.

3. The Legal Crisis: Different Procedures, Different Protections

Judgment 814/2026 of the Supreme Court does not limit Spain’s right to safeguard its borders. Instead, it puts to the State the question of how border control should be exercised. The Court drew its distinction from the wording and structure of the Tenth Additional Provision of Organic Law 4/2000 (LOEX). It interpreted “border containment elements” as physical barriers created by the State, such as border fences. The Court therefore held that persons intercepted at sea while attempting to enter by swimming fall within the “devolución” framework rather than “Rechazo en frontera”.

Article 58(3) of Organic Law 4/2000 provides that no separate expulsion proceeding is required for the “devolución” of foreigners who attempt to enter Spain illegally.⁸ The procedure nonetheless provides for “international protection” when requested under Article 58(4), for “legal assistance” in the circumstances provided by immigration law, and for an “interpreter”, so that the individual can understand the procedure. Devolución is legally regulated and ordered by the competent authority; it is not an informal decision by a border officer.⁹ The statute also provides for judicial involvement: if the return cannot be executed within the statutory period, judicial authorisation becomes relevant under Article 58(6).¹⁰

The route of arrival determines which statutory mechanism applies, and the mechanism determines the procedural framework that follows. Different statutory procedures produce different procedural safeguards, and the classification of a person’s entry therefore matters enormously.

Spain, as a sovereign nation, has the right and the authority to control and protect its borders by preventing and returning irregular entrants. This power is, however, constrained by the legal procedure applicable to the circumstances of entry, and by the human-rights and international-protection obligations that the legal and judicial system provides.

This is why Judgment 814/2026 is important. The Spanish authorities had returned the individual through the “Rechazo en frontera” procedure, without an administrative decision, without a lawyer and without providing an effective opportunity to request international protection.^10a Using the incorrect procedure to return persons was therefore an unlawful exercise of administrative power: the authorities applied “Rechazo en frontera” where “devolución” should have been applied. The absence of the applicable devolución procedure also deprived the individual of the procedural safeguards associated with it, including legal assistance and interpretation under Article 22(2).¹¹

4. The Limits of Administrative Discretion

The case therefore demonstrates that the distinction between “Rechazo en frontera” and “devolución” is not merely a question of administrative terminology or the wording of the law. It has significant repercussions for an individual whose life may be at risk. The distinction between the two procedures limits the discretion available to border authorities, and it can determine whether an individual has a meaningful opportunity to invoke the legal and international-protection safeguards that Spanish law provides before being returned. The authorities therefore appear to have acted beyond the limits of the discretion available to them, by applying the mechanism meant for persons attempting to overcome border containment elements to a maritime interception of a swimmer.

Spain did have the power to control its border and potentially to return the individual, but that power had to be exercised through the legally applicable procedure, without violating the rights the law owes to the individual. This brings the principle of legality directly into question, as the authorities’ discretion was constrained by the statutory conditions attached to the power they were exercising. Article 9(3) of the Spanish Constitution¹² is particularly significant here, because the Constitutional Court has connected the statutory limits surrounding the Ceuta regime with legal certainty and the prohibition of arbitrary administrative action.¹³

The claimant challenged the handover as “vía de hecho”,¹⁴ a material action by an administrative authority carried out without the legal basis or procedural framework required for that action.¹⁵ The action of the border control authorities allegedly occurred without a procedure or an administrative decision. Although the legitimate objective of returning the migrant was achieved, this does not legitimise the manner in which it was carried out. When administrative discretion becomes unlimited freedom, it can lead to arbitrary or disastrous consequences for a migrant who is supposed to receive protection and safeguards from the State. Spain possessed the power to prevent irregular entry, yet it exercised that power through a mechanism that was unavailable in the circumstances. Unlawful State action carried out under the guise of legitimate administrative discretion raises questions about the degree of oversight required when border authorities respond to migrant crises.

Even though the State is well within its rights to protect its borders and the people inside them, that should not deprive the migrant of the right to due legal procedure. Judicial intervention should not be the last resort a migrant has to lean on, because the law already provides mechanisms and procedural safeguards to deal with such situations. The existence of judicial review¹⁶ should not become a substitute for the administration’s obligation to follow the law in the first place. It is the duty of the State to provide systematic processes, rather than disposing of claims by returning the individual without the due process owed.

5. Conclusion

A practical way forward is more legal and administrative training for the guards deployed on the borders, as well as for the authorised officials entrusted with making such decisions. This would not require creating an entirely new framework, as EU law already requires Member States to provide training on border-control rules and fundamental rights. The European Border and Coast Guard framework specifically provides for training on fundamental rights, access to international protection and relevant maritime law.¹⁷ Equipping officials with a stronger understanding of the applicable legal framework and procedural safeguards could help ensure that the appropriate legal mechanism is applied in each case. From the point of view of a migrant, making individuals aware of the rights and protections owed to them by the State and its laws also appears crucial to ensuring that those protections can be effectively exercised.

Ultimately, Spain’s administrative discretion in controlling its borders remains substantial, but it is not unlimited. The State may prevent irregular entry, but the exercise of that power must remain aligned with the statutory mechanism applicable to the particular circumstances of each entry. Judgment 814/2026 demonstrates that achieving a legitimate objective does not legitimise the means of achieving it. Where authorities apply a procedure that the law does not permit, the result is an exercise of administrative discretion that ultimately becomes an unlawful exercise of State power. In Ceuta, the decisive boundary is not whether Spain may control its borders, but how that control is exercised. The case demonstrates that the principle of legality is not an obstacle to State power but rather the strongest way to legitimise it.

6. Reference(S):

Table of Cases

1. STC 172/2020 (19 November 2020), ECLI:ES:TC:2020:172.
2. Tribunal Supremo, Sentencia 814/2026 (29 June 2026), Rec 3795/2025, ECLI:ES:TS:2026:2965.

Table of Legislation

1. Law 29/1998 of 13 July regulating the Administrative Jurisdiction (Ley 29/1998).
2. Organic Law 4/2000 of 11 January on the Rights and Freedoms of Foreigners in Spain and their Social Integration (Ley Orgánica 4/2000).
3. Royal Decree 1155/2024 of 19 November approving the Regulation implementing Organic Law 4/2000.
4. Spanish Constitution 1978.
5. Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code).
6. Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624.

Bibliography

1. Dávila M, ‘Ceuta’, Encyclopaedia of Portuguese Expansion (Universidade Nova de Lisboa, 2009) https://eve.fcsh.unl.pt/en/places/ceuta accessed 31 August 2026.
2. EFE, ‘El hallazgo de otro cadáver eleva a 83 los fallecidos tras la entrada masiva en Ceuta’ (9 August 2026).
3. European Commission, Answer given by Ms Johansson on behalf of the European Commission, E-000911/2022 (17 May 2022).
4. Ministerio del Interior, ‘Grande-Marlaska agradece “el reconocimiento y el apoyo” de sus homólogos europeos a la respuesta de España ante la crisis de Ceuta’ (4 August 2026).

1 Ministerio del Interior, ‘Grande-Marlaska agradece “el reconocimiento y el apoyo” de sus homólogos europeos a la respuesta de España ante la crisis de Ceuta’ (4 August 2026).

2 EFE, ‘El hallazgo de otro cadáver eleva a 83 los fallecidos tras la entrada masiva en Ceuta’ (9 August 2026).

3 European Commission, Answer given by Ms Johansson on behalf of the European Commission, E000911/2022 (17 May 2022).

4 Maria Dávila, ‘Ceuta’, Encyclopaedia of Portuguese Expansion (Universidade Nova de Lisboa, 2009) https://eve.fcsh.unl.pt/en/places/ceuta accessed 31 August 2026.

5 Organic Law 4/2000 of 11 January on the Rights and Freedoms of Foreigners in Spain and their Social Integration (Ley Orgánica 4/2000), Additional Provision 10.

6 Organic Law 4/2000 of 11 January on the Rights and Freedoms of Foreigners in Spain and their Social Integration (Ley Orgánica 4/2000), Additional Provision 10.

7 Tribunal Supremo, Sentencia 814/2026 (29 June 2026), Rec 3795/2025, ECLI:ES:TS:2026:2965.

⁸ Organic Law 4/2000 of 11 January on the Rights and Freedoms of Foreigners in Spain and their Social Integration (Ley Orgánica 4/2000), art 58(3)(b).

⁹ Organic Law 4/2000 of 11 January on the Rights and Freedoms of Foreigners in Spain and their Social Integration (Ley Orgánica 4/2000), art 58(5); Royal Decree 1155/2024 of 19 November approving the Regulation implementing Organic Law 4/2000, art 23(1).

¹⁰ Organic Law 4/2000 of 11 January on the Rights and Freedoms of Foreigners in Spain and their Social Integration (Ley Orgánica 4/2000), art 58(6).

¹¹ Organic Law 4/2000 of 11 January on the Rights and Freedoms of Foreigners in Spain and their Social Integration (Ley Orgánica 4/2000), art 22(2).

¹² Spanish Constitution 1978, art 9(3).

¹³ Spanish Constitution 1978, art 9(3); STC 172/2020 (19 November 2020), ECLI:ES:TC:2020:172.

¹⁴ Law 29/1998 of 13 July regulating the Administrative Jurisdiction (Ley 29/1998), art 30.

¹⁵ Tribunal Supremo, Sentencia 814/2026 (29 June 2026) Rec 3795/2025, ECLI:ES:TS:2026:2965.

¹⁶ Spanish Constitution 1978, art 106(1).

¹⁷ Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2016] OJ L77/1, art 16(4); Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 [2019] OJ L295/1, art 62(6).