Summary of the national legislation on refugees
- Article 13.4 of the Spanish Constitution of 1978: “The law shall lay down the terms under which citizens from other countries and stateless persons may enjoy the right to asylum in Spain”.
- Law 5/1984 of 26 March 1984 governing the right to asylum and refugee status, as amended by Law 9/1994 of 19 May (Ley 5/1984, de 26 de marzo, reguladora del derecho de asilo y de la condición de refugiado), published in the BOE number 74, on 27 of March 1984.
- Ministerial Order of January 13, 1989 that regulates the reception centres for refugees and exiles (Orden de 13 de enero de 1989 sobrecentros de acogida a refugiados), published in the BOE number 28 on the 2 of February of 1989.
- Royal Decree 203/1995, of 10 February, approving the Implementation Regulation of Law 5/1984 (March 26) Regulating Refugee Status and the Right to Asylum (Real Decreto 203/1995, de 10 de febrero, por el que se aprueba el Reglamento de aplicación de la Ley 5/1984, de 26 de marzo, reguladora del Derecho de Asilo y de la condición de Refugiado) modified by the Law 9/1994 (May 19), published in the BOE number 52, on the 2of March of 1995.
- Organic Law 4/2000, of 11 January 2000, on the rights and freedoms of foreigners in Spain and their social integration (Ley Orgánica 4/2000, de 11 de enero, sobrederechos y libertades de los extranjeros en España y suintegración social).
- Royal Decree 1325/2003 of 24 October, on the temporary protection system in the event of a mass influx of displaced persons (Real Decreto 1325/2003, de 24 de octubre, por el que se aprueba el Reglamentosobrerégimen de protección temporal en caso de afluenciamasiva de personas desplazadas), published in the BOE number 256, on the 25October of 2003.
- Joint instructions of the General Directorate of Police and the Civil Guard, the Department of Interior Policy, and the Directorate of Immigration on the treatment of foreign stowaways, of 28 November 2007.
- Law 52/2007 of 26 December 2007 recognising and broadening rights and establishing measures in favour of those who suffered persecution or violence during the civil war and dictatorship (Ley 52/2007, de 26 de diciembre, por la que se reconocen y amplíanderechos y se establecenmedidas en favor de quienespadecieron per- secución o violenciadurante la guerra civil y la dictadura), published in the BOE number 310 on the 27 December 2007.
- The Act 12/2009, of 30 October, which regulates the right to asylum and the subsidiary protection (Ley 12/2009, de 30 de octubre, reguladora del derecho de asilo y de la protecciónsubsidiaria), published in the Official State Gazette (BoletínOficial del Estado (BOE))number 256, on the 31 October of 2009.
Although having a considerable amount of safeguards in its national legislation, Spain is failing to have a unanimous interpretation of the Refugee Act/Asylum Law (Ley 12/2009) due to the absence of a code of regulations that, according to the law should have been implemented 6 months after the introduction of the 12/2009 Act. Thus, the existence of a formal rule of protection does not imply an effective application of the same, entailing problems when it comes to judges interpreting the law and meeting the protection standards of international treaties that Spain is party to. Moreover, the lack of a regulation poses a problem when interpreting the definition of a refugee. According to the Spanish 12/2009 Act, refugees are people who flee from threats against concrete individuals, which excludes civilian casualties and forcibly displaced people for humanitarian reasons. Furthermore, due to the criteria specified in the 12/2009 Act, even people that have received the refugee status by the United Nations Refugee Agency (UNHCR) would not automatically be recognized as refugees by Spain.
Spain has signed and/or accessed the following international treaties and documents:
- Article 14 of the Universal Declaration of Human Rights of 10 December 1948.
- European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, ratified by Spain on 26 September 1979 (BOE of 10 October 1979).
- Convention relating to the Status of Refugees[1],adopted on 28 July 1951 in Geneva by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. Entry into force in Spain on 14 August 1978 (BOE of 21 October 1978; correction of errors in BOE of 14 November 1978).
- European Convention on Extradition, adopted on 13 December 1957 in Paris.
- European Agreement on the Abolition of Visas for Refugees (ETS No. 31) Strasbourg, of 20 April 1959, ratified by Spain the 2 June 1982, published in the BOE number 174 of 22 July 1982.
- International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965.
- International Covenant on Civil and Political Rights of 16 December 1966.
- Protocol Relating to the Status of Refugees, adopted on 31 January 1967 in New York (BOE of 21 October 1978).[2]
- Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979.
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984.
- Convention on the Rights of the Child of 20 November 1989.
- Accession of Spain to the Convention Determining the State Responsible for Examining Applications for Asylum lodged in one of the Member States of the European Communities (“Dublin Convention”), adopted on 15 June 1990 (BOE of 1 August 1997).
- Accession of Spain to the Schengen Convention, signed on 25 June 1991 in Bonn (BOE of 5 April 1994).
- Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.
- Council Directive 2003/9/EC of 27 January 2003, laying down minimum standards for the reception of asylum seekers in Member States.
- Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.
- Council Directive 2003/86/EC of 22 September 2003, on the right to family reunification.
- Council Directive 2004/83/EC of 29 April 2004, on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.
- Council Directive 2005/85/EC of 1 December 2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status.
- Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code).
- Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person.
- Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection.
While Spain has signed and ratified the main international treaties dealing with the protection of human rights in general and refugees in particular, there are still cases where these rights are not respected. Concretely, in what refers to the access and possibility to apply for asylum on the borders of the Spanish autonomous cities of Ceuta and Melilla, this right has been threatened since the introduction of the Spanish Citizen’s Security Law (Organic Law 4/2015 of 30 March 2015) also known as the “Gag Law” (Ley Mordaza). Its First Final Provision amends the Spanish Immigration Law (Organic Law 4/2000) and enables the “rejection at the frontier” of irregular migrants trying to cross to Ceuta and Melilla. This means that foreigners detected while “illegally crossing” the Spanish-Moroccan border in Ceuta or Melilla may be automatically rejected to prevent their illegal entry into Spain, without going through the legal procedures, thus not being properly identified, not having the right to get legal advice or apply for asylum. Although this Final Provision also states that these rejections will be made respecting the international legislation on protection of human rights and that specific places will be provided at the border to apply for asylum, in practice it is impossible to respect human rights with these so called “fast-track repatriations” (devoluciones en caliente). By not identifying the people crossing the border and proceeding to their rejection and return to Morocco, Spain is failing to fulfil its duties, as these people might be potential asylum applicants, victims of human trafficking or minors, whose lives might be at risk if returned to Morocco.
The amendments to the Spanish Immigration Law, introduced by the “Gag Law”, originated after the tragic incident of 6 February 2014 in Tarajal Beach, Ceuta, where 15 migrants lost their lives. Spanish Civil Guards fired rubber bullets at migrants trying to swim to Spain. Unfortunately the case was closed without anyone from the political sphere or police assuming responsibility. (If interested in more information on the Tarajal case we recommend the latest documentary on the matter: “Tarajal. A European Phantasmagoria”.)
To summarize: Spain does have all the necessary national legislation available to comply with international protection standards. Nevertheless, there are cases where, due to the interpretation and especially due to the Citizen’s Security Law, the ruling does not respect the human rights of asylum seekers arriving to the territory of Spain.
[1] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: http://www.refworld.org/docid/3be01b964.html [accessed 4 March 2016]
[2]UN General Assembly, ProtocolRelatingtothe Status of Refugees, 31 January 1967, UnitedNations, Treaty Series, vol. 606, p. 267, available at: http://www.refworld.org/docid/3ae6b3ae4.html [accessed 4 March 2016]
Refugee life in Spain
Number of people with a refugee status: 5,798 in 2014.
According to the latest available data, in 2014 a total of 5,798 people in Spain had refugee status (UNHCR Population Statistics). The UNHCR estimates that the same year there were 7,525 asylum seekers in Spain.
The Interministerial Committee for Asylum and Refuge of Spain registered 5.947 asylum applications in 2014 and reviewed a total of 3,614 cases, out of which 384 obtained the refugee status (122 of these were Syrian nationals, followed by 68 persons from Palestine, 48 from Pakistan, 22 from Russia, 22 from Afghanistan, 17 from Iran and only 35 from African countries). 1,199 persons received subsidiary protection (1,040 Syrian nationals received subsidiary protection, followed by 86 people from Somalia, 18 from Palestine, 10 from Afghanistan and 8 from Ivory Coast). Only 2 people were granted an authorization to stay in Spain because of humanitarian reasons.
Therefore, a total of 2,029 asylum applications were rejected by Spain in 2014 (56,1% of the reviewed petitions).
The Ministry of the Interior of Spain has not yet published the official statistics on asylum seekers during 2015, but the UNHCR estimates 12,712 asylum applications. During 2015 the Interministerial Committee for Asylum and Refuge of Spain increased the number of reviewed applications accordingly, especially those coming from Syrian nationals to try to resolve these cases faster, but failing to give the same attention to applications from nationals of other States.
Top 5 countries of origin:
Based on the data made available by the Subdirectorate General for Asylum of the Ministry of Internal Affairs (Subdirección General de Asilo del Ministerio del Interior):
1. Syria: 1.679 applications
2. Ukraine: 946 applications
3. Mali: 620 applications
4. Algeria (including Saharawi citizens): 309
5. Not recognized (mostly Palestine): 209
As with the total number of asylum applications in Spain during 2015, the Ministry of the Interior has not published statistics regarding the countries of origin of asylum seekers. Nevertheless, the estimated numbers made available by UNHCR confirm that the majority of applications were still made by Syrian nationals, with a considerable increase in the number: more than 5,600. Also the number of asylum applications from Ukraine increased to more than 2,500.
Top 3 reasons for leaving the country of origin:
The reasons for leaving the country of origin are very diverse and sometimes not limited to only one reason. The main reasons are the following:
1. War, generalized violence and armed conflict, including obligatory military recruitment
2. Ethnical and/or political affiliation
3. Sexual orientation
Monthly State allowance:
Temporary reception centres for asylum applicants and beneficiaries of international protection are housed are under the authority of the Ministry of Employment and Social Security and managed either by the Ministry itself or by one of the recognized NGOs (Spanish Catholic Commission on Migration(ACCEM), Spanish Commission for Refugee Assistance (CEAR) and the Spanish Red Cross). Those that stay at these facilities are entitled to receive the following amounts in cash to cover their basic needs (BOE number 161 of 6 July 2013):
- Individuals: 51,60 euros/month
- Children under 18, in the care of an adult applicant: 19,06 euros/month/person
- New-borns: 181,70 euros/child.
It is worth noting that these amounts were approved in 2013 and are still being applied in 2016.
Additionally, the Ministry of Employment and Social Security can cover:
The monthly cost of transportation or any other justified payment of public transport within the province in which the beneficiary resides
- Travel costs to another city in the case of a transfer to another reception centre (bus or train)
- Taxi expenses only in extraordinary occasions whenever public transportation cannot be used
- Clothing: 181,70 euros/season/person
- Expenses related to healthcare: Pharmacy: on prescription, except in cases of medical emergency; Glasses on prescription; Prosthesis on prescription; Food and child hygiene products
- Expenses related to education, including primary, secondary, high school and university, training and leisure. The assistance covers also the required materials and fees, as long as there is no public option and the costs are not covered by any other social assistance program
- Expenses related to the acquisition of administrative documents, including the fees and travels to another city to formalize the procedure, if required
- Expenses related to interpretation and translation services
- Expenses related to funerary services
The Ministry of Employment and Social Security also provides assistance to facilitate the autonomy of beneficiaries when their stay in a temporary reception centre is finished, with maximum amounts of:
- 347,60 euros for individuals
- 520,73 euros for family units of 2 people
- 557,73 euros for family units of 3 people
- 594,73 euros for family units of 4 people
- 792,73 euros for family units of 5 or more people
Living conditions:
Applicants and people who have obtained the refugee status or subsidiary protection have the option to ask for a post in a temporary reception centre. Applicants can request a post during one year after their arrival to Spanish territory. The timeframe of residence in a temporary reception centre is of 6 months, which can be extended up to 3 more months in vulnerable cases. After these 6 months or 9 months, if meeting the criteria of the allowance system established by the Ministry of Employment and Social Security, applicants can be eligible to receive assistance to pay for their accommodation during the following 6 months, extendable to 9 months in vulnerable cases.
Currently there are 4 temporary reception centres managed by the Ministry of Employment and Social Security (2 in Madrid, 1 in Valencia, 1 in Seville[1]) and numerous centres managed by the recognized NGOs ACCEM, CEAR and the Spanish Red Cross in multiple cities of Spain.
Requests for being placed in a particular temporary reception centre can be made at any office of the Spanish Red Cross. These requests are forwarded to the Ministry of Employment and Social Security, who decides, based on availability, to which centre and city the person or family unit will be reallocated. It is important to state at the request if there is a social or family tie to the city for which the application is made, this in order to influence the decision of the Ministry and to avoid reallocation to another city.
In case the applicant is not willing to reallocate to another city, he or she will lose the opportunity to be granted a temporary accommodation in a centre for a period of 6 months and will not be able to ask for it again in the future.
Language lessons: Some NGOs offer free Spanish lessons for migrants and Official Language Schools also offer courses with a very low tuition fee and the possibility of scholarships.
Are people with an official refugee status allowed to work?
Yes, a person who has been recognized as refugee or has obtained subsidiary protection is allowed to work in Spain. Applicants for asylum are also allowed to work after 6 months of having formalized their request for international protection, if admitted for examination.
Is there a maximum amount of time that a refugee can stay in the country in which it seeks asylum? Also after receiving a legal refugee status?
A person applying for asylum in Spain and whose application has been admitted for examination is allowed to legally reside in Spain for as long as the examination process goes on. If the application was successful, the beneficiary is granted a long-term or permanent residency and work permit in Spain. For more details refer to the previous section, “The legal process”.
Do refugees or their children have the right to attend schools, universities, etc.?
Yes, and costs related to public education can be covered by the Ministry of Employment and Social Security of Spain. Education or professional training in private institutions can only be covered in occasions where the service is not provided by the public sector.
Is the state obliged to provide asylum seekers with healthcare?
The healthcare system in Spain is public and every person has the right to access it in cases of emergency, regardless of their administrative status. After 3 months of registered residency in Spain or after receiving the “red card”, asylum seekers are entitled to access the public healthcare system in the same conditions as the rest of the population.
Do refugees experience obstacles with regard to issues like social life, personal well-being, freedom, etc.?
Although in theory refugees and asylum seekers are granted the same rights as nationals and other immigrants, several national and international NGOs have identified and criticized important problems encountered by asylum-seeker in their daily life. One of the major problems is the language barrier.
While State allowance from the government is planned for a timeframe of one year after applying for asylum, it is very difficult to acquire the necessary level of Spanish or any of the co-official languages of the Spanish autonomous regions to be accepted for a professional training, further education, or to find a job – even after acquiring a working permit there is high competition and a low number of available positions.
Also the lack of awareness on the rights of asylum seekers by the local and multinational companies based in Spain can mean a lack of job opportunities for applicants, as companies are not always interested in contracting people whose ID card expires in 6 months and whose administrative situation is under examination.
Language is also a main barrier during the first months after arrival, especially in regard to the access to healthcare; without an interpreter it is really difficult to receive the needed treatment. Although most of the public hospitals and centres of primary assistance have available a free translation service, this is sometimes refused by the employees.
In the autonomous cities of Ceuta and Melilla the conditions in temporary stay centres (CETI) are becoming worse due to the increased influx of asylum seekers through the Spanish-Moroccan border. The reallocation of asylum applicants from Melilla or Ceuta to Peninsular Spain is slow, which negatively influences their integration process and limits also their freedom of movement.
Regarding housing, it is very difficult for asylum seekers to rent an accommodation during the first and second year of residence in Spain, especially in bigger cities where the demand and price is higher. Even with monetary assistance from the Ministry, asylum seekers and refugees face obstacles, as many homeowners ask for a deposit or a couple of monthly rents in advance.
[1]http://extranjeros.empleo.gob.es/es/ProteccionAsilo/car/docs/Carta_Servicios_2014-17_es.pdf
The legal process
The Spanish Asylum Law (Act 12/2009) establishes the requirements to apply for and to receive the asylum status. Article 16.1 of this Law guarantees the right to apply for international protection to all non-EU nationals or stateless individuals “present on Spanish territory”. Thus, only people, that are nationals of a State that is not part of the EU, are eligible to apply for and receive international protection in Spain.
According also to the Spanish Constitution, article 12, only autonomous applicants of legal age will have the right to ask for asylum on their own. Hence, minors that are potential refugees will need to be represented by a guardian when formalizing the request. When accompanied, the person representing the minor will need to prove the parenthood or kinship. Based on article 14 of the Spanish Constitution, both parents have equal rights relating to their common children, and consequently, both would need to give their consent to proceed with the asylum application of the minor, or provide valid arguments as of why only one of the parents is present.
Regarding unaccompanied minors, the Spanish State has the obligation to act as the guardian and representative of the minor, always in the best interest of the child and protecting him or her under the legislation related to minors and presumed refugees. In theory, if an unaccompanied minor is detected, he or she will be referred to the juvenile prosecution service. Nevertheless, in practice, the police have been submitting foreign unaccompanied minors, even with a passport, to age assessment tests that are not 100 per cent reliable. On several occasions this entailed an unfair treatment of minors as adults, violating their human rights. In 2014 the Spanish Supreme Court ruled the prohibition of tests to determine a minor’s age in circumstances where the subject has a valid passport,[1] although Spanish and international NGOs still detect cases where this decision is not being followed.[2]
As mentioned before, the request for international protection needs to be done on Spanish territory. In case of legal or physical reasons that hinder the person from accessing the territory, the application could also be done through a representative, but this request would need to be ratified once the impediment is gone.
Also, according to the law, potential refugees are allowed to ask for asylum at Spanish embassies or consulates abroad. Nevertheless, due to the lack of a code of regulations, the process of applying for asylum at embassies and consulates is not clearly defined and very difficult to access.
On Spanish territory, the applicants can ask for asylum at the following places:[3]
- The Office of Asylum and Refuge (Oficina de Asilo y Refugio (from now on OAR)) or any of its local or regional delegations
- Any Foreign Office
- Authorised Police stations
- Foreign Internment Centres (Centro de Internamiento de Extranjeros (from now on CIE))
Asylum seekers that did not yet enter the Spanish territory can also apply for asylum at the border controls, including airports, sea ports and centres of attention for asylum seekers that have been set up at the Spanish-Moroccan borders in Ceuta and Melilla.
The formalisation of the asylum applications consists in an interview of the asylum seeker, which in practice is an interrogation first by a police officer at the border control and again by a civil servant once the applicant is on Spanish territory, always in compliance with the official questionnaire of the Ministry of the Interior. In case of families applying for asylum, each adult will be interviewed individually and requested to provide proves on the kinship. All the applicants should provide original documents, and if not possible, a copy of their passport or travel document, as well as other documents and proves that could confirm their identity and story and thus justify their application. Asylum seekers have to provide as much detailed information as possible, mentioning all the relevant facts and, if possible, all the relevant dates that can confirm the main reason or reasons for leaving the country of origin. Applicants have the right to be assisted by an interpreter and legal counsel during the interview, although when applying for asylum at the border, the legal assistance is mandatory, while only optional when applying within the territory. All interviews are confidential and the applicant has the right to ask for a printed copy of the transcribed interrogation. If necessary, additional materials and proves can be provided after the application has been admitted for examination. All applications are communicated to the UNHCR in Spain.
The applications at border controls should be done immediately at arrival. The deadline for applications on Spanish territory is one month from the day of entry into Spain or one month after the events justifying the asylum application happen (for example, people of Syrian nationality that were already in Spain on a tourist or student visa and that due to the conflict were unable to return to their home country when the visa expired and needed to ask for asylum). Although this is the official deadline, it is not applied very strictly in practice. For example, in cases where the application is made a long time after entering Spanish territory; in such cases the applicant will need to explain the cause for this delay in detail. A person who has entered the territory of Spain irregularly will not be sanctioned if he or she meets all the requirements to be recognised as an asylum seeker. This is a fundamental step to avoid deportation of potential refugees, as once the request has been made and admitted for review, the non-refoulement principle is applicable.
The Spanish Asylum Law of 2009 has maintained the two stages of the asylum process established by the previous 5/1984 Law of March 26, modified by the 9/1994 Law of May 19. The first stage refers to the initial processing, where the application is analysed by the administration and it is decided whether to admit the application for review or dismiss it; a dismissal has the same effects as an unsuccessful application. This first decision is taken within a month of the formalization of the application, although this deadline can be extended up to a maximum of two months. If the application is made at the border, this timeframe is 4 days, with a maximum extension of up to 10 days.
The second stage entails the processing of the application itself, when the Interministerial Committee for Asylum and Refuge reviews the case and decides whether the applicant is eligible to receive the refugee status, subsidiary protection, protection for humanitarian reasons or whether the application is rejected. According to the law, if an application for international protection made in Spain has been admitted for examination, the process period will be of a maximum of 6 months and 3 months in declared urgent cases. After this period, in accordance to the Spanish Asylum Law, the application shall be deemed rejected if no official decision from the Administration has been communicated[4].
In practice, nevertheless, there are many delays and the deadlines are not always respected. Although there is a general perception that the process has been accelerated for Syrian nationals, cases of statelessness, and concretely the Saharawi citizens, as well as other nationalities, such as Ukrainian and Malian citizens have seen their asylum application resolution unreasonably adjourned, probably because of geopolitical interest or in expectation of the situation in their country of origin to improve.[5]
Asylum seekers that formalize an application in Spain are granted their basic human rights, including:
- Right to access asylum
- Right to be documented as an applicant for international protection and thus, to have a temporary, but legal residency permit in Spain during the examination period of the application, meaning that while no decision is taken, the applicant cannot be deported (non-refoulement principle). During the first stage, the applicant is documented with a temporary “receipt” document that includes personal information, a photograph of the applicant and a fingerprint, as well as a deadline as of when the application receipt expires, meaning that that day the applicant needs to go to the OAR or the police.
Example of an application receipt document:
If the application is admitted to examination, the applicant will receive an ID card, also known as the “red card”, that includes a foreigners’ ID number (NIE: Number of Identification of Foreigners), photograph, fingerprint and personal information, that allows him or her to legally reside in Spain for a period of 6 months after the formalisation of the application. When it expires and the application has not been resolved yet, the “red card” will be renewed for another 6 months, including a permission to work. The “red card” will be renewed for as many times as needed, while the application is being examined, which can take up to several years. This document allows applicants to move freely around Spain, but is not valid for crossing the border. When receiving the “red card”, the Spanish authority takes the passport of the applicant, which will only be returned if the application is unsuccessful.
Example of a “red card”:
Source: http://www.finanzas.com/xl-semanal/magazine/20150927/refugiados-pasa-cuando-llegan-8894.html
- Right to understand and be understood during the process, by being provided with the help of a professional interpreter in the language of the applicants choice
- Right to be informed about the procedure
- Right know the content of his or her file/dossier at any moment
- Right to contact with the UNHRC or NGOs that are legally recognized and whose aim is to assist refugees in their asylum application
- Right to have legal assistance by an attorney or lawyer, free of charge if he or she cannot pay for it, through a Bar Association or an NGO
- Right to access to healthcare
- Right to be informed about the social benefits he or she can receive in Spain
On the other hand, applicants have also a series of obligations towards the Spanish authorities that they need to comply while their case is being reviewed. These include the following:
- Collaborating with the Spanish authorities in the procedure of the application and examination of it, i.e. provide authentic and reliable information and documentation or justifying the lack of required documents, explaining in detail the reasons for leaving the country of origin, and if requested, provide additional information that could contribute to the application (article 18.2.a. and .b of the Spanish Asylum Law)
- Allowing fingerprints and photographs to be taken by the authorities, as well as being recorded during the interview (article 18.2.c of the Spanish Asylum Law)
- Informing or appearing before the authorities whenever necessary regarding the application or the renewal of documents (article 18.2.d and .e of the Spanish Asylum Law)
- Reporting any changes of the place of residence in Spain (article 27 of the Spanish Asylum Law)
In the initial processing stage, there are two different types of reasons for which an application for international protection is not admitted for examination (article 20 of the Spanish Asylum Law):
a) Lack of competency of the Spanish administration to study the case, due to the EU regulation (Dublin III) or international treaties, according to which the examination of the application would be the responsibility of another State. This can usually be identified through the existence of visas obtained from another State of the Schengen area or having been fingerprinted in another EU country.
In cases where the applicant has social or family ties in Spain, or another EU country, the authorities can decide to make an exception of the Dublin III regulation and admit the asylum application to be processed in Spain.
b) Lack of requirements of the applicant. For example: citizenship of a Member State of the EU, coming from a secure third State, having already been granted international protection in a secure third State, reapplying for asylum after a denied application or proving new identity details.
Another cause for a rejection may also be that the applicant is perceived as a threat to the security of Spain or its citizens or having been previously convicted for a felony.
If an application is not admitted for examination, article 20.2 and article 37 of the Spanish Asylum Law establish that the procedure will be regulated by the Spanish Immigration Law (4/2000), which indicates to proceed with the return, expulsion, mandatory exit or transferral of the applicant to the country responsible of examining the case, except for the cases foreseen in the 4/2000 Law: [6]
- If the applicant meets the requirements to stay in Spain with a residency or residency and work permit
- If the applicant is authorized to stay on Spanish territory due to humanitarian reasons, defined in the current legislation
When applying for international protection at the border and the request is admitted for examination, the applicant is allowed to enter the territory. If not admitted or rejected, applicants may request a re-examination/case-review within two days of being notified about the non-admittance; which gives authorities two days to re-evaluate the case and notify a new decision. If the case is rejected, the asylum seeker will need to leave Spain.
Applications made at a CIE, if admitted, will be processed through the urgent procedure, meaning that the case should be examined within a timeframe of 3 months. If rejected or not admitted, there are the same consequences as when applying at the border.
All applicants whose request has not been admitted or rejected have the right to appeal to the courts and to be assisted by a lawyer, free of charge if the applicant cannot pay for the service.
Finally, successful applications, meaning those applications that meet the requirements defined in article 10 of the Spanish Asylum Law and that after examination by the OAR have been accepted by the Spanish Ministry of the Interior at the proposal of the Interministerial Commission for Asylum and Refuge, will grant the applicants the refugee status or subsidiary protection. According to the Spanish Asylum Law, which introduced in 2009 the designation of “subsidiary protection”, cases that do not meet the criteria for obtaining the refugee status can be granted subsidiary protection when facing serious risks, such as death penalty, torture, inhumane treatment and/or serious threats against the life or integrity of civilians, motivated by indiscriminate violence in situations of international or internal conflicts, including civil wars.
Receiving international protection in Spain entails the following rights (article 36 of the Spanish Asylum Law):
- Non-refoulement principle, thus not to be returned to the country of origin.
- Authorization to live and work in Spain, including a long-term or permanent residency and work permit for Spain.
- Obtaining an identification document and, if needed and applicable, a travel document.
- Freedom of movement.
- Access to information about rights and obligations of people obtaining international protection.
- Access to public employment services.
- Access to education, healthcare, housing, welfare services, social services, social security, and programs for victims of gender-based violence, in the same conditions as Spanish nationals.
- Access to further education and apprenticeships, in the same conditions as Spanish nationals, as well as access to procedures for recognition of academic and professional titles.
- Access to specific or general integration programs.
- Access to voluntary return programs.
- Reduced waiting time to access the Spanish nationalisation process, available after 5 years of residence (the usual residence time to access the nationalisation process for nationals of non-EU countries is 10 years). Although this right is provided, some of the required documents to initiate a nationalisation process can be hard or even impossible to acquire for refugees or subsidiary protected people who cannot present certain original documents. In order to facilitate this, the Spanish administration can refer to the ratified Convention on International Cooperation in the Matter of Administrative Assistance to Refugees (Instrumento de Ratificación del Conveniosobrecooperacióninternacional en materia de AsistenciaAdministrativa a los Refugiados, published in the BOE number 139 on 11 June 1987). [7]
- Reunification with immediate family members and access to support programs that facilitate this. As can be the case with nationalisation process, required documents such as birth certificates and marriage certificates might be difficult or impossible to acquire. Thus, the absence of a code of regulations for the Spanish Asylum Law complicates the full benefits of these rights.
Cessation of international protection can be caused by the following reasons (article 42 and following of the Spanish Asylum Law):
- By the expressed request of the interested subject
- By accepting the protection of the State of nationality of the interested subject
- By re-acquiring the nationality that the interested subject had previously lost
- By the voluntary acquisition of a new nationality, including the Spanish
- By the voluntary reestablishment of the interested subject in the pursuing country
- By the voluntary reestablishment of the interested subject in another country, abandoning the Spanish territory
Cessation might also be applied if the circumstances that have lead to acquiring subsidiary protection have significantly changed or disappeared and, therefore, the protection is no longer needed. Stateless people might also see their refugee status suspended if there are significant changes in their country of previous residence, despite not having acquired any nationality yet. In any case, the Spanish Asylum Law establishes in its articles 42.2 and 43.2 that the cessation will not impede the continuation of the residence in Spain.
