Juan A. Esteban

Contemporary artist and independent researcher.

Illustration in papyrus and graphite tones, with a polygonal aesthetic. A long stone wall with a door in the centre; next to it, on a platform, a small observation post with the window open towards the door, almost empty inside: a stool and a bare shelf.

Public notebook

European Pact on Migration: who oversees rights at Spain’s borders

As of 12 June 2026, the main provisions of the European Pact on Migration and Asylum apply. It consists of nine regulations and one directive that modify the procedures for borders, asylum, reception, migration management and crisis response.

The Ministry of the Interior states that Spain will implement it "with a rights-protective and respectful approach" towards the rights of migrants and applicants for international protection. The decisive issue is not the declaration, but who verifies its compliance in the places where public authority acts with the greatest intensity and the least visibility.

The Pact does not limit itself to ordering controls and procedures. It mandates the creation of independent oversight of fundamental rights. Spain has announced that this function will fall to the Ombudsman (Defensor del Pueblo). The choice may be appropriate due to the institution's constitutional independence and inspection experience, but formal designation is not enough: it requires its own resources, effective access, public methodology, and the capacity to initiate investigations and corrections.

What is screening

Regulation (EU) 2024/1356 introduces a common screening for certain third-country nationals and stateless persons. It applies, among other cases, to those who are apprehended in connection with an unauthorised crossing of the external border, disembarked after a search and rescue operation without meeting the conditions for entry, or who request international protection at a border crossing point or transit zone without meeting those conditions.

Screening includes preliminary identity and security checks, a medical examination, an initial vulnerability assessment, and the completion of a form to refer the person to the corresponding procedure. It does not decide in itself whether international protection should be granted, nor does it replace the asylum or return procedure that may follow.

At the external border, it must be concluded as soon as possible and not exceed seven days. If carried out within the territory, the maximum is three days. Spain already applied similar actions and has announced its adaptation through a specific form and a reinforcement of preliminary vulnerability detection.

During the screening, the person remains at the disposal of the authorities and, as a general rule, does not receive authorisation for entry. The Regulation allows for detention when it proves necessary after an individual assessment and less coercive measures cannot be applied effectively. Recital 11 requires that it be a measure of last resort, necessary, proportionate and subject to effective remedy.

The combination of identity control, biometric data, security inspection, vulnerability detection, possible detention, and referral to another procedure concentrates decisions with serious consequences. This is why oversight cannot be reduced to reviewing forms once the process has finished.

What the independent mechanism must oversee

Article 10 of the Regulation obliges each Member State to establish an independent monitoring mechanism. Its scope covers all activities carried out to implement the Screening Regulation.

It must oversee, in particular:

  • Access to the asylum procedure.
  • The principle of non-refoulement, which prohibits sending a person to a place where they would face certain serious risks.
  • The best interests of the child.
  • National and European rules on detention.
  • Compliance with international law, European Union law, and the Charter of Fundamental Rights.
  • The effective and timely treatment of well-founded allegations of violations.
  • The initiation, when necessary, and the follow-up of the corresponding investigations.

The rule does not only require observation. States must adopt provisions to investigate complaints and ensure, where appropriate, their referral to initiate civil or criminal proceedings.

The mechanism may formulate annual recommendations. It must work through on-site inspections, including random and unannounced inspections. It must have the necessary access to places, persons, and documents, including reception and detention centres. Access to classified information may be subject to security clearance, but it cannot be replaced by summaries prepared exclusively by the authority being supervised.

The Regulation allows for the participation of national human rights institutions, torture prevention mechanisms, independent public bodies, and international or non-governmental organisations. If they are not part of the mechanism, it must maintain close links with them and with data protection authorities.

Finally, States must provide it with adequate financial resources. The mere existence of individual judicial remedies or systems that monitor administrative efficiency does not satisfy this obligation.

Oversight does not end at screening

Regulation (EU) 2024/1348 on the common procedure for international protection extends the logic of oversight to the border asylum procedure. Its Article 43.4 requires that the mechanism established under the Screening Regulation carries out periodic monitoring activities in facilities where border procedures are conducted, or that another independent mechanism exists that meets its requirements.

This extension is important. A person may move from screening to a border asylum procedure which, according to information published by the Ministry of the Interior, may last up to twelve weeks between resolution and judicial review. During that time, they do not receive authorisation to enter and must remain in designated facilities.

Oversight, therefore, should not observe only the first few days. It must be able to follow the continuity between identification, vulnerability detection, access to asylum, legal assistance, material conditions, detention or stay in border facilities, and eventual return.

The European Union Agency for Fundamental Rights has published a specific guide for these mechanisms. It presents them as a preventive tool that reduces the risk of violations, protects victims, provides independent analysis for investigations, and improves transparency and accountability.

Spain assigns the function to the Ombudsman

On 11 June 2026, one day before the entry into application of the Pact, the Ministry of the Interior announced "the launch of an independent monitoring mechanism for the respect of fundamental rights, the functions of which will correspond to the Ombudsman".

The choice has an institutional basis. The Ombudsman is the high commissioner of the Cortes Generales for the defence of the rights under Title I of the Constitution and may oversee the activity of the Administration. Since 2009, it has also served as the National Preventive Mechanism against Torture, with the powers and experience to visit places of deprivation of liberty.

On 9 and 10 June, Patricia Bárcena, Second Deputy Ombudsman, took part in Rotterdam in an international conference of ombudsmen on the implementation of the Pact. The institution reported that border procedures, children on the move and the designation of independent monitoring mechanisms were examined.

However, as of 15 October 2026, I have not located in the Official State Gazette (BOE) a specific regulation formalising the attribution announced by the Ministry of the Interior, nor a public resolution from the Ombudsman describing its operation. Neither have I found a budget, a staff, an inspection protocol, a specific complaints procedure or a calendar of reports expressly identified with this new function.

This documentary absence does not prove that the mechanism is not functioning. It does, however, prevent one from knowing, from the outside, how the political announcement has been converted into a verifiable operational capacity.

An appropriate institution may receive an insufficient mandate

The formal independence of the Ombudsman is an advantage, but it does not, on its own, resolve four risks.

A remit without its own resources

The Regulation requires adequate funding. If the function is integrated into existing structures without specialised staff, an identifiable budget, interpreters, legal support, and travel capacity, it may compete with other tasks of the institution and be reduced to isolated interventions.

Budgetary transparency should allow for the distinction of which resources have been added, rather than merely stating that the institution will use its ordinary means.

Access dependent on the authority being supervised

The mechanism must be capable of conducting random, unannounced inspections, engaging with affected individuals, and reviewing documentation. Its efficacy would be diminished if visits were contingent upon prior authorisation, if interviews were conducted in the presence of police, or if information were selectively provided by the very body under scrutiny.

It also requires access to the spaces where decisions are made, rather than solely to facilities formally classified as detention centres. Screening may take place in any suitable location designated by the State, whether at the border or within the territory.

Confusing supervision with complaint handling

The Ombudsman already receives individual complaints. The European mechanism demands more: preventative observation, on-site inspections, systematic monitoring, and the capacity to initiate civil or criminal investigations where appropriate.

An individual undergoing screening may not be proficient in the language, may remain in the location for only a few days, may lack assistance, or may fear repercussions. A system primarily reliant upon the submission of a written complaint would fail to capture a significant proportion of the violations it is intended to prevent.

Making recommendations without knowing the response

Recommendations only facilitate accountability if they are public, specific, and traceable. The report should identify observed facts, distinguish between non-compliance and recommended improvements, record the authorities' responses, and explain what follow-up is undertaken when a recommendation is not accepted or implemented.

The Regulation empowers the mechanism to formulate annual recommendations, yet full and periodic publication should be an integral part of the Spanish framework. Supervision whose essential findings do not reach the public can hardly rectify the opacity that justifies its existence.

Children and vulnerability

Screening must include a preliminary examination to detect statelessness, vulnerability, torture, inhuman or degrading treatment, and special needs. Should indications arise, the individual must receive adequate and timely support in facilities appropriate for their physical and mental health.

In the case of minors, the best interests of the child must be a primary consideration. Unaccompanied minors must be provided with a representative or a trained person to accompany and assist them as soon as possible. This person must act independently of the screening authorities and, under normal circumstances, should not attend to more than thirty minors simultaneously.

These obligations provide concrete indicators for inspection. It is insufficient to merely verify the existence of a vulnerability section in the form. One must observe who conducts the interview, their training, the language used, the time allocated, the support activated, and whether the detection genuinely modifies the procedure.

The Ombudsman possesses accumulated experience regarding foreign children, whether unaccompanied or accompanied, trafficking, reception, and international protection. This experience reinforces institutional suitability, yet it also raises the required standard: the mechanism must incorporate the institution's own previous recommendations and explain how it verifies their compliance within the new framework.

External participation

CEAR has called for the participation of UNHCR and civil society organisations in the implementation and monitoring of the Pact. The requirement to provide the independent mechanism with adequate financial resources stems from the Screening Regulation itself. The Regulation allows for the integration of national, international and non-governmental organisations, although it does not mandate that all of them form a direct part of the mechanism.

External participation must not be utilised to shift public responsibility onto organisations already providing assistance with limited resources. It can provide access, legal expertise, linguistic knowledge, and the trust of affected individuals. The decision regarding its form should be public: membership of the mechanism, advisory council, referral protocols, information exchange, or accompaniment during visits.

Safeguards against conflicts of interest must also be defined. An organisation contracted to manage a service does not occupy the same position as one dedicated to observing it or reporting violations.

The Government's position and the criticisms

The Ministry of the Interior presents the Spanish implementation as rights-protective. It highlights legal assistance, the intervention of UNHCR, the possibility of re-examination for applications made at border posts, and the early detection of vulnerabilities. It has also rejected the use of future return centres in third countries due to the "serious doubts" raised regarding their legality and proportionality.

Amnesty International maintains that the Pact threatens the rights of migrants and refugees and demands sufficient resources for supervision. CEAR requests reinforced guarantees, the participation of specialised organisations, and the effective capacity to act upon complaints.

These are not two equivalent versions of the same event. The Government expresses its intent and describes the measures it claims to have prepared. Human rights organisations evaluate the legal and practical risks of the European framework. Compliance can only be established through observable facts: access to asylum, the absence of prohibited refoulement, the genuine detection of vulnerabilities, the exceptional use of detention, the diligent investigation of complaints, and the correction of non-compliance.

The independent mechanism exists because the authority executing a policy cannot be the sole source for certifying that it respects rights.

What should be published

In order for supervision to be evaluated, the Ombudsman and the relevant administrations should make the following public, without exposing personal data or compromising investigations:

  • The regulation, agreement, or instrument that formalises the attribution.
  • The responsible structure, its staff, qualifications, and budget.
  • The inspection methodology and the criteria for selecting locations.
  • The number of visits, distinguishing between those announced and those conducted without prior notice.
  • The locations and types of procedures supervised.
  • The confidential interviews conducted and the interpretation services available.
  • The alleged violations, their referral, and the status of the investigations.
  • The recommendations, the response of each authority, and their degree of compliance.
  • The participation of UNHCR, social organisations, child welfare institutions, and data protection authorities.
  • The obstacles to access or information encountered by the mechanism.

Aggregated data is insufficient if it conceals patterns. The report should provide a breakdown, where compatible with the protection of individuals, by border, type of facility, age, sex, disability status, unaccompanied minor status, and detected vulnerability.

The measure of the Pact

The democratic quality of the Pact shall be measured less by the speed at which files are processed than by the genuine possibility of observing what occurs during the procedure, preventing abuses and providing redress for violations.

A right enshrined in a regulation is only as valuable as the conditions for exercising it, claiming its breach and obtaining a response. Access to international protection, the principle of non-refoulement, personal liberty and the best interests of the child are not administrative obstacles to be balanced against efficiency; they are limits that the Administration must respect in its actions.

The Ombudsman may introduce independent oversight in an especially opaque space if it possesses additional resources, access without prior notice, confidential interviews, a public methodology and the capacity to follow up on investigations and the responses of the authorities. If it merely receives an additional function without identifiable means or published results, the guarantee will remain on paper.

As of 15 October 2026, the attribution announced to the Ombudsman is a known fact. The adequacy of its means, the scope of its inspections and the effectiveness of the mechanism continue to lack sufficient public documentation to be considered verified.

About the open conversation

This text distinguishes between the content of the regulations, the assertions of the Government, the positions of human rights organisations and what cannot yet be verified. It does not constitute legal advice.

The position of this article is explicit: migration control is subject to fundamental rights, not placed on the same level as them. Administrative efficiency does not justify prohibited refoulement, unnecessary detention, a lack of protection for minors or an absence of investigation into well-founded complaints.

If you work in asylum, migration, childhood, deprivation of liberty or human rights monitoring and can provide documentation regarding the functioning of the Spanish mechanism, you may write to me.

The author's relationship with the cases

There is no financial or professional relationship with the institutions and organisations cited.

Sources

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