What are the legal implications of the mass border crossing in Ceuta?

Carherine Barnard considers three legal issues which have arisen as a result of the mass border crossing from Morocco to the Spanish territory of Ceuta in July.

Spain and the EU were caught off guard when, on 30 July 2026, tens of thousands of people crossed the border between Morocco and the Spanish territory of Ceuta. Migrants came on foot or they swam. Over 100 migrants died in the attempt. Government responses were instant – and nationalistic. Spain, facing an incursion into its territory, sent in police and military reinforcements. Within 48 hours the vast majority of migrants had returned to Morocco. Nevertheless, Italy said that Spain should be removed from Schengen, the borderless travel area in the EU, and when that proved not possible, it imposed travel restrictions on those coming from Spain. Denmark and Finland threatened to do the same.

The aim of this blog is to focus on three legal issues which have arisen as a result of this mass border crossing.

First, the immediate Italian response. Under the Schengen rules, it’s not possible to remove another state from the Schengen zone. All states can do in times of crisis is to impose temporary measures. For example, under Article 25 of the Schengen Borders Code (SBC), where ‘there is a serious threat to public policy or internal security in a Member State’, that state may ‘exceptionally reintroduce border control’ for a limited period of up to 30 days, possibly longer, depending on the foreseeable duration of the serious threat. Further, the reintroduction of border control must be proportionate (i.e. it shall ‘not exceed what is strictly necessary to respond to the serious threat’) and must be ‘a last resort’. There are also various procedural requirements to be satisfied, including notification to the other member states and the Commission. It is not clear that any of the Article 25 criteria have been satisfied.

Moreover, those who entered Ceuta did not enter the Schengen borderless travel zone. Article 41 of the SBC makes specific – and unique – provision for Ceuta and Melilla (another Spanish territory in north Africa). As the Spanish government explains, ‘Schengen checks are carried out on exit by sea or air, the only two routes available. Therefore, no one can travel from Ceuta or Melilla to mainland Spain without being identified by the National Police at the port or the airport.’

Nevertheless, Italy has continued to impose border controls against Spain and now Spain has retaliated by introducing reciprocal controls on arrivals from Italy, again with little evidence of the terms of Article 25 being respected. Where is the European Commission, the guardian of the treaties, in all of this? The response ‘it’s August’ does not suggest a Commission fulfilling its legal duties.

Second, the attitude of Italy, Finland and Denmark to the Ceuta situation and the Spanish response raises a further issue: EU solidarity – or rather lack of it – in the face of a crisis. The principle of solidarity between the EU and member states runs through the EU treaties like writing through a stick of rock (see e.g. Article 24(2) of the Treaty on European Union: ‘the Union shall conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States … and the achievement of an ever-increasing degree of convergence of Member States’ actions’).

Yet the initial response from the Commission, condemning as ‘unacceptable’ the images coming from Ceuta, offered little signs of solidarity with Spain. Meanwhile, a letter, initiated by Italy and Denmark but signed by 22 member states, blamed Spain for the crisis due to its amnesty policy. Spain has recently offered amnesty to over 500,000 illegal residents. This gives them the right to reside, but not citizenship, but they had to have arrived in Spain before 1 January 2026.

Spain responded robustly, lamenting the lack of EU solidarity. An emergency meeting of interior and justice ministers hosted by the Commission and the Irish Presidency on 4 August tried to restore some degree of unity. The current spat between Spain and Italy over the SBC and the lack of Commission response suggests the continued lack of solidarity.

Third, there was another dog that didn’t bark: the new EU migration pact, in force on 1 July 2026, described as an ‘Effective system of solidarity and responsibility for managing asylum and migration in the EU’. The Pact contains a new Crisis and force majeure Regulation which ‘addresses situations of crisis, including instrumentalisation, and force majeure, and provides for derogations and solidarity measures for Member States’. This Regulation was introduced following the instrumentalisation of migration by Belarus against Poland, Lithuania and Latvia in 2021 when it sent thousands of mainly Iraqis to the Polish border with the ‘false promise of easy entry to the EU’. Some argue that the recent incursion into Ceuta was prompted by the Moroccan government using migration as a way of putting pressure on Spain after Pedro Sanchez, the Spanish Prime Minister, following a thawing of Spanish-Algerian relations.

Yet Spain does not appear to have made, as the new Regulation allows for, ‘a reasoned request to the Commission, in order to benefit from solidarity measures allowing for the proper management of that situation’. Nor does the Commission appear to have considered the application of the regulation. As Alberto Alemanno suggests, because Spain needs the cooperation of Morocco for managing its border, pulling the trigger of the regulation may have been too politically toxic. But this undermines the utility of a key pillar of the EU’s flagship migration programme.

All of this continues to be highly relevant. There are rumours that people smugglers are going to try another attempt on the Morocco/Ceuta border on 15 August. Spain has already lamented how smugglers have used social media to take advantage of (and provide misinformation about), Spain’s relatively liberal immigration laws, including a ruling of the Supreme Court which prohibited ‘hot returns’ to Morocco (ie returns without legal process)  for those arriving in Ceuta by swimming (they can still be returned after due process).

Spain’s border with Morocco thus looks set to remain a sensitive issue. The divided response by the EU and the member states helps those trying gain access to the EU illegally and strengthens the hand of those wishing to instrumentalise migration.

By Professor Catherine Barnard, Senior Fellow, UK in a Changing Europe & Professor of EU Law and Employment Law, University of Cambridge