Ceuta and the Politics of ‘Instrumentalised Migration’: How a Border Situation Became Part of Europe’s Wider Legal Battle to Restrict Access

[Dr Lena Riemer is an Assistant Professor of Law at Central European University working on migration related topics.]

When around 80,000 people (according to the Spanish government) crossed into the Spanish enclave of Ceuta in early August, reactions quickly framed the event as a test of the EU’s border control and policy and the solidarity amongst its member states (for a strong analysis on this, see Jonas Bornemann). What barely made it into the headlines, however, was the fact that at least 100 people tragically lost their lives and what could be done to prevent such loss. Instead, the ‘solutions’ mainly focused on increased border security and early violent interceptions of migrants by Morocco, as seen in the detention of 111 people who had once tried to approach the border in Ceuta later in August. Now, two weeks later, we still do not, and may never have the full picture. What remains, however, is that many reports and comments are still marked by uncertainty and speculation. Economic pressures, failed EU border policies, social media mobilisation, a recent Spanish Supreme Court ruling on maritime pushbacks, individual decisions to seek a better future and the involvement of Morocco, all appear relevant. 

Within this array of speculations, one line of argument became central to the debate over what had caused it: the ‘instrumentalisation of migrants’, meaning Morocco, deliberately using large numbers of migrants to exert pressure, punish or destabilise Spain. This argument was first triggered by Spain’s Prime Minister Pedro Sanchez himself, who quickly declared the event an “attack on our territorial sovereignty”, after videos showed that Moroccan border guards did not intercept those crossing into Ceuta. 

As a researcher in international refugee law, I have seen this pattern before: a border event turns into a larger argument about who counts as a ‘genuine’ migrant, and who is a tool of someone else’s strategy. That framing has severe consequences. It shapes how the law is applied, how and how fast people are removed, and whether they are seen as deserving protection and seemingly even our sympathy when they lose their lives. This post traces where the ‘instrumentalisation’ narrative comes from, how it evolved into law, jurisprudence, political declarations and how the Ceuta events play part of a larger narrative-building to put pressure on the European Court of Human Rights to restrict core guarantees for migrants. 

A Script that Keeps Repeating

The pattern now playing out at Ceuta is not new. Similar dynamics have surfaced repeatedly at Europe’s borders whenever arrivals have spiked, and the language used to describe them has followed a fairly consistent script.

One of the clearest earlier cases came in February 2020, at the Greek-Turkish border. After Turkey announced it would stop preventing migrants and asylum seekers from crossing into Greece, reported at the time as President Recep Tayyip Erdoğan ‘opening the border’, thousands entered Greece within days. Greek authorities met them with tear gas and rubber bullets. Over the following weeks, an estimated 12,000 to 25,000 migrants and asylum seekers, many from Syria, gathered on the Turkish side, reportedly moved there with the help or tolerance of Turkish state and non-state actors. Greece suspended asylum applications for a month, a measure widely regarded as unlawful under international law, and its then-Minister of Migration and Asylum, Notis Mitarachi, declaring the situation the result of the ‘instrumentalisation of migrants’. That episode helped push ‘instrumentalisation’ into mainstream EU discourse. The same framing resurfaced the following year at the EU-Belarus border, but this time it moved from political rhetoric into the courtroom, setting off a legal and political campaign that runs in a direct line to Ceuta. 

From Strasbourg to a European Campaign

In early 2025, the European Court of Human Rights held hearings in a set of major cases brought against Lithuania, Latvia and Poland over pushbacks at the Belarus border (R.A. and Others v. Poland, H.M.M. and Others v. Latvia. The three governments argued that Belarus had deliberately funneled migrants toward their borders as a form of instrumentalisation or hybrid attack, and that the court should weigh that context when deciding whether they had breached people’s rights. The stakes are significant. At issue is whether the three member states violated fundamental protections, including the prohibition of collective expulsion (Article 4 Protocol 4 ECHR), the non-refoulement principle under Article 3 ECHR and the right to an effective remedy (Article 13). The respondent governments’ along the intervening government of Finland argued, in essence, that Belarus’s instrumentalisation of migration should count as an exceptional circumstance justifying a looser application of those protections.

Shortly after the hearings, Denmark and Italy led a concerning open letter, signed by nine European leaders in May 2025. It affirmed a commitment to human rights while arguing the European Convention on Human Rights had sometimes been interpreted too rigidly for states to respond to today’s challenges. ‘Instrumentalisation’ featured as a prime example: hostile actors, it suggested, could exploit European rights protections to limit democratic governments’ ability to control their borders. Unsurprisingly, several states in the  Grand Chamber cases were also among the letter’s signatories, and its arguments echoed those made before the judges. As of today, the three cases remain pending at the Strasbourg Court, and anyone working on this topic seems to be anxiously awaiting the decision, wondering if we may experience another ND and NT v. Spain moment, which significantly altered the Court’s line of jurisprudence regarding the prohibition of collective expulsion in 2020. 

The concept meanwhile has moved beyond political rhetoric and into binding law and international litigation. The EU Crisis and Force Majeure Regulation (EU) 2024/1359, which became applicable on 1 July 2026, formally recognises “instrumentalisation” as a distinct situation of crisis: where a third country or hostile non-state actor facilitates movements towards the EU with the aim of destabilising the Union or a Member State and thereby risks essential state functions, including public order or national security. Importantly, this does not give Member States a unilateral power to suspend asylum rules. A Member State must submit a reasoned request, the Commission must assess whether the legal conditions are met, and any derogations ultimately require a Council implementing decision. The Regulation therefore both legitimises the category and places procedural limits on its use. It also expressly requires emergency measures to comply with the Charter, international law and the Union asylum acquis, preserving the fundamental principles from which derogations are permitted. Yet this codification transforms the political concept of “instrumentalisation” into a legally recognisable category through which exceptional measures can be contemplated. In parallel, Lithuania placed the same framing at a different legal arena. In May 2025, it instituted proceedings before the International Court of Justice against Belarus, alleging violations of the UN Protocol against the Smuggling of Migrants in connection with the large-scale movement of migrants from Belarus into Lithuania. Lithuania’s application expressly describes the events as a deliberate effort by Belarus to “instrumentalise migrants for political purposes” and presents the resulting situation as one causing serious harm to Lithuania’s sovereignty, security and public order (paras. 28, 110, Annex 135, 136). The ICJ proceedings therefore reproduce, in an international-law setting, the security-centred narrative already advanced by Lithuania before the Strasbourg Court. In both proceedings Belarus is constructed as a hostile state using migrants as instruments of a broader destabilisation strategy, while Lithuania is positioned as the state responding to an externally generated crisis. It thus seems that Lithuania is actively carrying the concept across legal fora. These examples showcase that ‘instrumentalization of migration’ has seemingly become a transnational legal frame through which certain states seek to frame migration as a security threat and to make exceptional responses appear legally intelligible (for a great analysis of the dangers of such framing, see Ancite-Jepifánova). The Ceuta border situation of August 2026 seems to be an example par excellence of the ‘success’ of this frame with EU states reacting with partially irrational security responses, such as Italy’s implementation of border controls, and calls by certain politicians to ‘collectively expel’ even unaccompanied minors in violation of international and EU law. At the same time, this situation likely contributed to growing pressure around the question: should human rights standards bend in response to ‘instrumentalised migration’ as demanded by certain states? 

Rising Pressure on the ECtHR

As Lorenzo Acconciamessa and I argued elsewhere, that pressure already kept building up over time up to the Ceuta events. By December 2025, the original nine governments had grown to twenty-seven, issuing a joint statement demanding further reform on the same day an informal Council of Europe ministerial meeting adopted conclusions on states’ concerns about migration and the Convention system. Instrumentalisation played a key role in it, further legitimising it, as states declared that “the rights and freedoms of (their) populations are challenged by: people who take advantage of (their) hospitality by … instrumentalisation of migrants.” The December declaration already showed that what began as a legal argument in individual cases had become an organised political project to reshape European human rights law. It did not stop there.

The mainstreaming of the ‘instrumentalisation of migration’ narrative further culminated in the recently adopted Chișinău Declaration (paras. 37-40), endorsed by all 46 Council of Europe member states in May 2026 (for a helpful analysis on it in relation to ‘instrumentalisation’, see here). The declaration formally recognised ‘instrumentalisation’ as a contemporary challenge, while affirming that migrants caught up in such situations remain protected under the Convention and international law, a welcome affirmation given the previous interventions that highlighted the need to restrict them in such circumstances. At the same time, the declaration highlighted that the ECHR vis-à-vis the question of ‘instrumentalisation’ needs to be “interpreted in the light of present-day realities”, and that “the concrete context” in which member states act “forms part of the overall assessment required under the Convention.” The section on instrumentalisation ends with the conclusion that the “States Parties look forward to receiving guidance from the Court regarding the application of the Convention in this context” (para. 40). Given this clear signal, that may be either seen as encouragement or some sort of a threat, one does not want to be in the shoes of the judges having to decide these Grand Chamber pending cases. 

What Ceuta Adds

Unfortunately, the story does not end there. Another letter to the President of the European Council, the President of the European Commission, and the current President of the Council of the European Union, signed by 22 European heads of state and government in response to the Ceuta situation, is only the next stage of that evolution, and a more hardened one. The Ceuta letter presents ‘instrumentalisation’ as an immediate security threat, invoking ‘uncontrolled mass crossings’ and ‘hybrid threats’ that create ‘the perception that illegal entry into the European Union is possible’ in the same breath. It calls for urgent coordination, stronger Frontex support, cooperation with Morocco, and measures against so-called secondary movements — and explicitly demands implementation of the Chișinău Declaration.

Tellingly, the letter says nothing about the EU’s Crisis and Force Majeure Regulation, mentioned above, which became fully applicable just a month earlier and already provides a legal framework for ‘instrumentalisation’, including fundamental rights safeguards. That omission matters as the political response to Ceuta is based on deterrence and border control instead of order and protecting core human rights guarantees. This omission may serve as an indicator of how the ‘instrumentalisation’ discourse continuously distances itself from the element of safeguarding migrants rights and focuses increasingly more on security and control.

In five years, the concept of ‘instrumentalisation of migration’ has travelled from a political statement to a courtroom in Strasbourg to political letters, Council of Europe declarations, EU law and now Ceuta. At each step, the risk is the same: attention shifts further away from the people crossing the border, their core guarantees and rights – some of them being absolute in theory such as Article 3 ECHR, toward the idea of migration itself as a weapon, undeserving of protection or even our sympathy. That shift is not just a side effect. The language of ‘instrumentalisation’ has itself become a political instrument, reached for by the very leaders who claim to be defending Europe against it.