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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.

On 11 June 2026, the Advocate General Laila Medina delivered her opinion in the Joined Cases C-706/25 and C-707/25 (Comeri and Sidilli). The cases concerned the compatibility of the Italian legislation implementing the Italy–Albania bilateral agreement, which allows the transfer of third-country nationals to detention facilities located in Albanian territory for the purposes of asylum border and return procedures, with EU law, in particular with Directive 2013/32/EU (the recast ‘Asylum Procedures Directive’ (APD)), Directive 2013/33/EU (the recast Reception Conditions Directive (RCD)), and Article 3(2) TFEU.

The Advocate General considered that EU law does not preclude Member States from locating detention facilities for asylum applicants outside the territory of the European Union, provided that those facilities are under the effective and exclusive jurisdiction of that Member State. In such circumstances, the areas concerned must be regarded as falling within the “territory of a Member State” for the purposes of Directives 2013/32 and 2013/33, which therefore apply in full.

She recalled that the grounds for detention listed in Article 8(3) of RCD are exhaustive, and Member States may not introduce additional grounds for detention. She considered that the Italian legislation relied on grounds already recognised by EU law and therefore did not infringe that requirement. However, the Protocol and the implementing legislation are liable to alter the effectiveness of several procedural guarantees harmonised by EU law. In particular, concerns arise regarding the access to legal assistance and judicial protection because of the geographical separation between lawyers and applicants and the systematic use of remote hearings, the confidentiality of lawyer–client communications, the reimbursement for lawyers’ travel costs to Albania, and the rights of communication and visiting for family members.  The Advocate General noted that applicants cannot leave the Albanian facilities by their own means and the legislation does not regulate their return transfer to Italy. This is at odds with the requirement under Directive 2013/33 that detention ceases immediately once its validity ends.

She therefore concluded that detention outside EU territory is not, in itself, incompatible with EU law. However, Article 3(2) TFEU precludes Member States from concluding  international agreements and adopting national ratification and enforcement measures which alter the practical scope of the minimum procedural guarantees harmonised by Article 9(3), (4) and (6) of Directive 2013/33, read in conjunction with Article 22(1) of Directive 2013/32, interpreted in the light of Article 47 of the Charter of fundamental rights of the European Union.

On 16 April 2026, the Court of Justice of the European Union (CJEU) delivered its judgment in joined Cases C‑50/24 to C‑56/24 (Danané and Others), originating from a request for a preliminary ruling by the Belgian Council for asylum and immigration proceedings (Conseil du contentieux des étrangers). The cases concerned the interpretation of Directive 2013/32/EU (Asylum Procedures Directive) and Directive 2013/33/EU (Reception Conditions Directive), in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, in the context of asylum applications lodged at Brussels airport by third-country nationals who were detained in facilities situated within Belgian territory but legally treated as border facilities.

The Court clarified that Article 43 of Directive 2013/32 does not require border procedures to be carried out at geographically defined border locations. A procedure may fall within the scope of that provision even where the applicant is detained in a facility located within the territory of the Member State, as long as those facilities are legally treated as border or transit zones. The Court emphasised that neither the wording nor the objectives of the provision impose a geographical requirement and that a restrictive interpretation could render border procedures ineffective and undermine fundamental rights.

The CJEU further held that, once the four-week period laid down in Article 43(2) of Directive 2013/32 has expired, the examination of the application can no longer be carried out under the border procedure and must continue under the ordinary procedural framework of the Directive. However, EU law does not preclude the same detention facility from being reclassified from a “place at the border” to a “place in the territory”. In such circumstances, the Member State must ensure that applicants are informed of the change in their legal situation, including their authorisation to enter the territory.

The Court confirmed that applicants may remain detained after the expiry of the four-week period on a different legal basis, in particular under Article 8(3)(b) of Directive 2013/33. It held that the continuation of detention is permissible where necessary to determine elements of the application, insofar as it complies with the requirements of necessity, proportionality and individual assessment. It stressed that detention must remain exceptional and cannot be applied automatically or systematically.

It also ruled that, after the expiry of the four-week period, the determining authority may continue examining the application as a matter of priority under Article 31(7) of Directive 2013/32. It clarified that investigative steps carried out during the border procedure may be relied upon in subsequent procedures, provided that they comply with the basic principles and guarantees laid down in EU law.

Finally, it held that the expiry of the four-week period and the continued detention of the applicant do not affect the competence of the determining authority. The expiry of that period merely entails a shift from the border procedure to another procedural framework and the cessation of the specific temporal and material limitations applicable to border procedures.

On 17 March 2026, the Court of Cassation (Hof van Cassatie) dismissed an appeal against a judgment of the Brussels Court of Appeal (Hof van beroep te Brussel) upholding the detention of an asylum applicant at the border following the use of forged travel documents.

The applicant, a third-country national, attempted to enter Belgium using false travel documents and applied for international protection upon arrival at the border. He was consecutively placed in detention in a border facility pending a decision on his entry or possible return. The applicant challenged his detention, arguing that the use of false documents is inherent to the situation of asylum applicants and should be regarded as a failure to comply with entry formalities, which cannot itself justify detention under the Directive 2013/33/EU (the Reception Directive). He also requested to refer a preliminary question on this matter to the Court of Justice of European Union.

The Court of Cassation rejected those arguments and confirmed that, while under Article 8(1) of the Reception Directive an applicant for international protection may not be detained solely because of their asylum application, detention is permitted where necessary, including in order to decide on the right to enter the territory in the context of a border procedure (Article 8(3)(c)). The Court held that, in assessing the lawfulness of detention, national authorities may take into account the use of false documents and that they are not required to treat such conduct as merely a failure to comply with entry formalities or as inherent to the status of an asylum applicant. The Court further upheld the findings of the lower court that the detention was based on an individual assessment and was necessary to ensure the effectiveness of border control and the possibility of return. Finally, it found that the request for a preliminary ruling was not relevant and it dismissed the cassation appeal.

Unofficial translation by the EWLU team

On 28 November 2025, the High Court of Justice of Andalusia, Ceuta and Melilla – Málaga Administrative Chamber (Tribunal Superior de Justicia de Andalucía, Ceuta y Melilla - Sala de lo Contencioso Administrativo de Málaga) issued the judgment No. 2434/2025, annulling the return of applicants who had attempted to access the Spanish territory via the Chafarinas Islands.

The applicants, Syrian nationals, arrived at Isla del Congreso on 3 January 2022 and expressed their intention to apply for international protection. The authorities nevertheless proceeded with their immediate return to the Moroccan authorities without initiating an individual administrative procedure or allowing them to apply for asylum. The lower court upheld the authorities’ actions, considering that the applicants’ conduct constituted an abuse of law and justified their immediate return.

The High Court found that the special border regime established in the tenth additional provision of the Spanish Immigration Law (LOEX 4/2000) allowing summary expulsions at the borders of Ceuta and Melilla, does not apply to the Chafarinas Islands and cannot be extended by analogy. The Court further held that the applicants’ conduct did not constitute an abuse of law and emphasised that access to the asylum procedure must be guaranteed in accordance with Directive 2013/32/EU on asylum procedures, Article 18 of the EU Charter of Fundamental Rights, the principle of non-refoulement under Article 3 ECHR, and Article 33 of the Refugee Convention. It therefore concluded that the repatriation measures had been adopted in breach of the applicable procedural guarantees and it annulled the contested decision.

Unofficial translation by the EWLU team

On 30 December 2025, the Supreme Administrative Court of Lithuania published its judgment on the case No eA-820-552/2025 ,  ruling that the denial of the right to seek for international protection violates international and EU Law.

On 23 October 2023, the applicant was forcibly returned to the Belarus border by the Lithuanian authorities, denying him the right to seek asylum. The applicant was provided with water, food, warm clothes, footwear, and hygiene products, but he was not allowed to enter the territory of the Republic of Lithuania.

The Supreme Administrative Court held that ambiguities regarding the request for asylum must be interpreted in favour of the applicant and shifted the burden of proof to the authorities. Furthermore, having regard to the jurisprudence of the CJEU, the Supreme Court held that the officials acted unlawfully by forcibly removing the applicant from Lithuanian territory and denying him an opportunity to apply for international protection. The Court also recognised that there was a causal link between the suffering of the applicant and the actions of the Lithuanian authorities and found Lithuanian authorities responsible for this. However, it considered that there is no evidence that the violation of the applicant’s rights resulted in non-pecuniary damage within the meaning of Article 3 ECHR, leaving the question of the compensation to be decided. Finally, the Court held that national border regulations, including measures designed to prevent ‘instrumentalisation’, cannot legitimize state conduct that breach international obligations. It reaffirmed that duties under both international and EU law prevail over national law.

Unofficial translation by the EWLU team.