EU Pact on Migration and Asylum: Fiction or Reality? Insights from the Canary Islands

Post by Gustavo de la Orden Bosch. Researcher at the Pedro Arrupe Human Rights Institute, University of Deusto. Member of the research project “The European Pact on Migration and Asylum and the Mediterranean States in the post-covid context (EURASYLUM II)” funded by the Spanish Ministry of Science, Innovation and Universities. This post is part of a thematic series on the EU Pact on Migration and Asylum, edited by Giuseppe Campesi and José Angel Brandariz. Read the introduction here.

Between 1 January and 15 August 2024, migrant boat arrivals to the Canary Islands (Spain) increased by more than double (126.1%) compared to the same period last year. Specifically, 22,304 people arrived during this period in 2024. According to the latest reports of the Spanish Ministry of Interior, maritime routes remain the primary means of irregular entry into Spain, with the Canary Islands accounting for over 75% of such entries. Migrants reach them via the so-called Atlantic route, one of the most perilous paths toward European soil. While numerous NGO vessels operate in the Mediterranean, search and rescue operations in the Atlantic Ocean are conducted by Spanish and Moroccan coast guards, who adhere strictly to maritime border demarcations. Although the number of crossings and arrivals is lower in the Atlantic than in the Mediterranean, the rate of deaths and disappearances is higher. The NGO Caminando Fronteras recorded almost 5,000 deaths in the Atlantic route during the first five months of 2024 alone.

Migrants — mostly men — embark on this journey from West Africa, predominantly from Morocco, Western Sahara, Mauritania, Senegal, or even Guinea, sailing distances of between 500 and 2,000 kilometres over 5-9 days. They flee regions such as the Sahel, which is plagued by political instability — as in Mali (see also here) — or areas severely impacted by the overexploitation of natural resources by multinational corporations, such as the Senegalese coast. Those who reach Canarian soil face an ad hoc system made of detention, classification, referral, and (eventual) return that partly mirrors the recently adopted European Union (EU) Pact on Migration and Asylum. If approached as a testing ground for EU policies, the Canary Islands have become a paradigmatic site for reflecting on structural changes, gaps, and new shortcomings in the EU border landscape.

Crisis as usual, anti-migrant rhetoric, and ad-hoc (im)mobility as border patch

The situation described above is far from new. The first “patera” (small boat) arrived in the Canary Islands 30 years ago, on 28 August 1994. Since then, there have been several peaks in arrivals, one of the most notable being in 2006, which led to the so-called “cayuco crisis”. Currently, the increase in disembarkations to the Canary Islands has been ongoing since 2020. In response, the Spanish government has implemented a series of measures aimed at addressing the migration arrivals in this insular region. Spanish far-right parties have called for tighter border controls fuelled by xenophobic discourses (see also here). This narrative has been followed by the centre-right and main opposition party, which has urged the government to deploy military and naval forces along the Canarian coasts.

One of the first governmental measures was the creation of screening centres (Centros de Atención Temporal de Extranjeros -CATE-). First established in Andalusia in 2017 and replicated in the Canary Islands since 2021, these centres function as closed facilities for identification and referral, embodying a dual logic of humanitarianism and coercion. Highly controversial due to the lack of specific legislation, CATEs are managed by the National Police. Hence, being considered extensions of police stations, migrants cannot be held in CATEs for more than 72 hours without a court order, as a constitutional guarantee. Since their creation, the Spanish Ombudsman has identified cases of overcrowding and substandard conditions in CATEs that amount to ill-treatment in detention.

Following the identification process, there is no clear procedure for what happens next: who stays, who is expelled, and who is transferred to the mainland. As a general practice, adults are placed in migrant camps scattered throughout the archipelago, located in a variety of spaces such as old military barracks. There are no specific rules governing the length of stay in the camps or the criteria for transfer, which seems to depend on circumstantial facts. When transferred to the mainland, people are placed in reception centres for refugees (Centros de Atención a Refugiados -CAR-) or humanitarian assistance centres. Unaccompanied minors are not transferred and should legally remain under regional care centres, leading to the saturation of these facilities. In August 2024, over 5,600 migrant children (of which 276 were girls) were housed in Canarian minor centres designed for only 2,000. As a result, ad hoc agreements between the national and regional governments have been made to transfer migrant children to centres on the mainland, a situation that sparked political tension.

Canarian ad-hoc border system partially mirroring the EU Pact scheme

The Canarian ad hoc system in response to maritime arrivals mirrors the EU Pact on Migration and Asylum, which draws heavily on the 2015 hotspot approach. The Pact’s narrative of critical migratory “pressure” reflects the situation in the Canary Islands for almost five years. Upon disembarkation, initial identification for referral takes place within a detention framework designed to classify individuals as either irregular migrants or asylum seekers. The former are then assessed according to their likelihood of deportation, which depends on a complex bureaucratic system and readmission agreements.

Despite some symmetries between the Canarian ad hoc system and the Pact, discrepancies remain between current practices and the provisions of the latter, leading to several practical and legal uncertainties as to how Spain will meet EU objectives. By December 2024, Member States are expected to submit their national implementation plans for the Pact to the European Commission. There is still little clarity on how Spain will enact the practical and legal changes required to fully comply with the Pact.

The detention system foreseen by the Pact includes a detention period of 7 days for the screening procedure (Screening Regulation, Art. 8(3)), which already clashes with the constitutional limit of 72 hours of detention without a court order. This raises the question of whether a constitutional amendment is required or how the legal framework will be redesigned to extend detention beyond the constitutionally allowed length.

Moreover, the Pact implements “non-entry” as a legal fiction (Screening Regulation, Art. 6). This not only obscures the physical place where all screening and border procedures will take place but also raises doubts as to how it would facilitate agreements between EU members and third countries to externalise the management or location of asylum systems, replicating the Italian-Albanian model. At the Spanish level, would CATEs and migrant camps multiply? Where? Or would the existing ones become even more overcrowded? Larger budgets would be needed to finance the detention and deportation machine envisaged by the Pact.

Alongside the new screening procedure, the Pact establishes a set of common border procedures that introduce further national black holes. In Spain, detention with a view to expulsion cannot exceed 60 days. However, the whole set of screening and border procedures will extend detention up to six months: the asylum border procedure can last up to 12 weeks, and in case of a negative outcome, the person is transferred to a return border procedure, which can last up to a further 12 weeks. Thus, if detention is to be maintained until removal takes place, a change in the law will also be necessary.

Spain, the EU Pact’s “good pupil”?

There are clear parallels between the EU Pact and the Canarian border ad hoc system. Insular territories facilitate the implementation of the Pact’s scheme, which is based on containment, classification, and the dichotomic options of reception or expulsion. The “new” EU system is similar to a “hotspot approach 2.0,” aiming to overcome the shortcomings faced since 2015 in Greek and Italian islands by fast-track procedures and mandatory burden-sharing. Spain has already tackled some of these shortcomings through transfers to the mainland. In light of the current debates ongoing in other Member States (e.g. the Netherlands claiming for a “mini Nexit”), Spain looks like the “good pupil.”

However, the full implementation of the Pact in the Canary Islands could exacerbate the fragility of migrants’ rights. As a current policy trend in migration governance, mass detention is normalised and extended. Moreover, as a novelty, the final place of the whole set of border and asylum procedures is now uncertain, whether it be Canary Islands, mainland Spain, other EU Member States, or even third countries beyond EU borders. Will the Pact extend and normalise hotspot-like centres within the EU territory? Or will border areas — especially islands like the Canaries — turn into “excised migration zones” and mass detention spaces, as in the case of Australia? A number of legal and factual black holes need to be filled in the Spanish implementation plan. In short, the Pact is still not a deal.