On 29 June 2026, the Spanish Supreme Court delivered its judgment no. 814/2026 in cassation proceedings no. 3795/2025, concerning the scope of the special rejection at the border (rechazo en frontera) regime under Additional Provision 10 of Organic Law 4/2000 on the rights and freedoms of foreigners in Spain (LOEX) in the context of irregular entry at the border of Ceuta and Melilla.
The case concerned an Algerian national who was intercepted by the Spanish authorities at sea while attempting to enter Ceuta by swimming and was subsequently handed over to the Moroccan authorities. He challenged that action on the grounds that it had been carried out without an administrative procedure or decision and without legal assistance or access to international protection. The Administrative Court no. 2 of Ceuta partially upheld his action and annulled the administrative measure, while rejecting his claim for compensation. The High Court of Justice of Andalusia subsequently upheld that judgment. The State Administration subsequently lodged an appeal in cassation before the Supreme Court.
The Supreme Court examined whether Additional Provision 10 LOEX, which allows persons detected at the border of Ceuta or Melilla while attempting to overcome border-containment elements to be rejected in order to prevent their irregular entry, also applies to persons intercepted at sea while attempting to reach those cities by swimming. Referring to Constitutional Court judgments 172/2020 and 13/2021, it held that the special regime is not generally applicable to every person attempting to cross the borders of Ceuta or Melilla irregularly. Rather, it applies where a person attempts to cross the border by overcoming border-containment elements, such as the border fences.
It held that technological border-control devices, such as drones, thermal cameras or sensors, cannot be equated with border-containment elements because their function is to monitor, detect or provide alerts rather than physically prevent border crossings. However, the Court clarified that Additional Provision 10 is not limited to terrestrial measures and that, if border-containment elements were established at sea, the special border rejection regime could apply to persons attempting to cross the border by overcoming such elements.
The Supreme Court distinguished rejection at the border (rechazo en frontera) from other measures regulated by the LOEX, including return to the point of origin (retorno al punto de origen), expulsion (expulsión) and return (devolución). It noted that the return (devolución) procedure applies, inter alia, to persons attempting to enter Spain irregularly, including those intercepted at the border or in its vicinity. Accordingly, persons intercepted at sea while attempting to enter Ceuta or Melilla by swimming are subject to the return (devolución) procedure rather than rejection at the border (rechazo en frontera). The Court therefore dismissed the State Administration’s appeal in cassation and upheld the judgment under appeal.