On 14 November 2023, J. and two other foreign nationals were intercepted by a Guardia Civil vessel in Ceuta's South Bay while attempting to swim to Spanish territory. They were transferred to the premises of the 1st Fiscal and Border Company, where they were assisted by Red Cross personnel. The individuals were subsequently taken to the Tarajal border and handed over to the Moroccan authorities. There is no record of any formal return procedure, nor of legal assistance or interpretation services being provided, nor is there any indication that the applicant requested international protection.

The applicant challenged this practice before the High Court of Justice of Andalusia (the court), which, citing Constitutional Court ruling No. 172/2020, of 19 November 2020, found that this pushback was not supported by Additional Provision 10 of the Spanish Foreigners Act. This provision states: “Foreign nationals who are detected at the border line of the territorial demarcation of Ceuta or Melilla while attempting to overcome the border containment elements to cross it irregularly may be rejected to prevent their illegal entry into Spain”.

The court ruled that this provision must be interpreted restrictively. While acknowledging that the maritime border is also a border line, as outlined in Article 2(2) of the Schengen Borders Code, the act of swimming cannot be construed as “attempting to overcome the border containment elements”. Consequently, the court upheld the appeal and awarded legal costs to the applicant.

Note: this judgment was later upheld by the Supreme Court in General State Administration (Administración General del Estado) v C. (STS 2965/2026, 29 June 2026).