For 25-year-old Basir, it was a ray of hope after fleeing Sudan more than a decade ago. For his lawyers, the asylum request he made from Morocco was the ultimate test of whether Spain – and more broadly the EU – was willing to provide safe migration routes to some of the world’s most vulnerable people.
Thirteen months later, the answer is a resounding no. Little has changed for Basir, a Christian, who was left for dead at 15 in an attack that killed his father and brother. He continues to live rough on the streets of Morocco, scrambling to land odd jobs so he can buy food. He asked that his real name not be used for safety reasons.
It is a far cry from the protection he had been hoping for. “I feel we Africans are not treated the same way as other nations,” he said.
Basir arrived in Morocco in mid-2021 after crossing through Egypt, Libya and Algeria on a harrowing journey that he began after the attack in Sudan’s conflict-ridden South Kordofan region. At times on the journey he was detained, tortured and treated inhumanely, he said, despite having registered as a child asylum seeker with the UN in Egypt.
He soon experienced first-hand the risks people take to enter the EU, after he was among the 1,700 or so people who attempted a mass crossing of the metres-high chain-link fences that surround the Spanish north African enclave of Melilla in June 2022. At least 37 died in the attempt.
The scene that unfolded around him would later be described by one migrant as a “bloodbath”, with videos and photos from the day appearing to show people lying in pools of blood. Amnesty International blamed the “widespread use of unlawful force” by Moroccan and Spanish authorities for contributing to the deaths.
Basir said he briefly set foot on Spanish soil but was pushed back across the border – Spain’s ombudsman has estimated 470 people were forced back that day – before he could access his right to claim asylum.
As Spain’s interior minister fended off calls to explain what had happened at the border, he hit back at suggestions that the lack of official asylum channels meant refugees in Morocco had had no other options but to enter Spain irregularly.
“Spain, have no doubt, is a welcoming country for any asylum seeker who knocks on its doors,” Fernando Grande-Marlaska told the country’s parliament. “But it cannot allow anyone to try to kick them down.”
He instead pointed to an obscure clause in Spanish law to argue the refugees could have applied for international protection at the Spanish embassy in Morocco, echoing a claim Spain has long used to justify deportations at the border.
The Madrid-based law firm Demos, however, saw an opportunity and began canvassing for asylum seekers in Morocco who were willing to attempt the process. If it worked, it could offer a safe alternative to seek protection; anything less would lay bare that the only option for refugees was to risk their lives and enter the country irregularly.
“Basir’s case holds a mirror to Europe,” said his lawyer Arsenio Cores. “Is it a place of freedom, security, justice and respect for human rights? If so, for whom?”
While Basir’s odyssey was playing out in Spain, Cores saw it as a wider test of Europe’s patchwork of policies that consistently fail to provide safe routes to sub-Saharan asylum seekers. “His case is a threat to all of these discriminatory policies of the EU and its member states,” he said.
Filing the claim in December 2022 was complicated, said Adilia de las Mercedes, another lawyer. Embassy staff refused to allow them inside, insisting they file the claim electronically.
The lawyers held firm, pointing out there was no website where Basir could file a claim and that emailing the documents meant they would lack an official stamp confirming receipt. “We didn’t move from the embassy until the application was accepted and stamped by the embassy,” De las Mercedes said.
The entire process took place outside the embassy’s doors. “Neither Basir or his two lawyers – both of us Spanish citizens – were allowed to enter,” she said.
Four months went by without any news. In March last year, as Spain’s interior minister, Fernando Grande-Marlaska, was rebuked by parliament over what has come to be known as the “Melilla massacre”, Basir was interviewed about his application.
In June, still without news on his application, he appealed directly to Spain’s prime minister.
“Lately I have seen many times on the news that Spain is a country that welcomed thousands of Ukrainians fleeing the war,” he wrote in a letter to Pedro Sánchez. “And I ask myself, is it my skin colour that prevents me from receiving the same treatment as other people from Ukraine and other countries? Why does our skin colour condemn us, black refugees, to be treated as people without rights?”
He shared his experience at the fence in Melilla, telling the prime minister of how he was “brutally beaten” and treated as a criminal. He insisted Spain’s shortcomings had driven him there. “I would have never had tried to jump the fence if I had another option,” he wrote. “Because of my skin colour, I would never be able to obtain a visa to reach a safe country in another way.”
With still no news half a year after that, his legal team filed a challenge with the country’s high court in December calling on it to force Spanish authorities to consider his request.
Basir said he had little choice but to continue waiting at the borders of Europe. “It is not easy. Especially when you don’t have the basics, you don’t have a place to sleep, food, you don’t have clothing, you don’t have access to medicine, you don’t have anything,” he said. “For someone like me and the many who cannot go back to their homeland, the only option is to be patient.”