Supreme Court confirms right to free movement of asylum seekers on national territory

The ruling prevents the Ministry of the Interior from restricting travel by asylum seekers from Melilla or Ceuta to other parts of Spanish territory and the Schengen area.

The SJM has received a favourable ruling from the Supreme Court dated 29 July 2020 which establishes jurisprudence on the right to free movement throughout the national territory of documented asylum seekers, with the mere legal obligation to communicate changes of address: a right which cannot be restricted to those who request international protection from Melilla or Ceuta. The Commissioner-General for Aliens and Borders cannot restrict fundamental rights without directly relying on the law, and asylum law does not allow him to prevent the free movement of asylum seekers.

The Supreme Court dismantles the Ministry of the Interior’s interpretation of the meaning of police checks on pre-boarding documentation between Melilla (or Ceuta) and the rest of Spanish territory, including the Schengen area: it does not prevent asylum seekers from crossing on the assumption that they had crossed the border without the required documentation to enter the Schengen area, but seeks to check whether people who have entered Melilla (or Ceuta) without a visa have sufficient documentation to enter the rest of Spain or the Schengen area states. And when it comes to asylum seekers, what counts is that the red card that documents them is a provisional residence authorisation that recognises their fundamental right to free movement and free choice of residence with the simple obligation to notify changes of address.

The case brought by SJM has a special procedural feature compared to the one brought by CEAR in Ceuta, which obtained a favourable ruling on 28 July 2020. The SJM is attacking a decision of the Commissioner General for Aliens and Borders which denied its defendant the right to travel. CEAR attacks the validity of the words “Valid only in Ceuta” (or in Melilla) added to the red card. The SJM has also followed this route in other similar cases. It has even lodged an administrative appeal under the special procedure for the protection of fundamental rights, which requires the intervention of the Public Prosecutor’s Office in the public interest. We still do not have a ruling from the Supreme Court, but the Prosecutor’s allegations are in line with the rulings of the High Courts of Justice of Andalusia and Madrid, in terms of what we defend from the SJM and CEAR in our respective cases.

SJM is in favour, as are the people who request asylum from Ceuta and Melilla. The Ministry of the Interior has no margin to continue imposing its flawed interpretation of the law. But we have to be vigilant so that the Interior changes its policy beyond complying and fulfilling every sentence on the matter it loses. The Ministry of the Interior must comply with the law and protect fundamental rights, including those of asylum seekers in Melilla and Ceuta.