Border procedure (border and transit zones)

Spain

Author

General (scope, time limits)

The border procedure foreseen under Spanish asylum law only regards an admissibility examination of the asylum application, and is characterised by its strict time limits, which in any case cannot exceed 4 days. The border procedure is applied to all asylum seekers who ask for international protection in airports, maritime ports and land borders. In these cases, the applicant has not formally entered the Spanish territory. Once the application is admitted, the person will receive the authorisation to access the country, and the rest of the asylum process will take place under the urgent procedure (see section on Regular Procedure: Fast-Track Processing).

In the border procedure, which is also applicable to claims from CIE, additional grounds to those mentioned under the Admissibility Procedure are applied to establish the so-called reasons for denial of the application. In fact, applications at borders can be denied in the following circumstances:1

(a)   The facts exposed by the applicant do not have any relation with the recognition of the refugee status;

(b)   The applicant comes from a safe third country;

(c)   The applicant falls under the criteria for denial or exclusion sent under Article 8, 9, 11 and 12 of Asylum Law;

(d)   The applicant had made inconsistent, contradictory, improbable, insufficient declarations, or that contradict sufficiently contrasted information about country of origin or of habitual residence if stateless, in manner that clearly shows that the request is unfounded with regard to the fact of hosting a founded fear to be persecuted or suffer a serious injury.

The latter cause of denial of the application concerns an assessment of the substance of the asylum claim. For this, it can be said that, while the admissibility phase in the regular procedure only regards formal aspects, the admissibility phase of the border and CIE procedure in law, and mostly in practice, consists in an evaluation of the facts presented by the applicant for substantiating his or her request for international protection.

This element leaves a high level of discretion in the decision making of the competent authority on the admission of the application, as it does not state the criteria for which allegations should be judged as inconsistent, contradictory or improbable.

In addition, it should be kept in mind that this assessment is made in very short time limits, compared to the regular procedure.

These aspects in practice make asylum applications at borders and in CIE much more susceptible to being refused or dismissed as inadmissible compared to applications in territory, increasing even more the vulnerability of applicants concerned. This fact has been put in evidence by several organisations in Spain,2 who denounce the low number of admissions in border procedure compared to the regular procedure, and has also been supported by the jurisprudence of the Supreme Court.3

As all asylum requests, the only authority in charge of the admissibility decision is the Ministry of Interior. The decision on admissibility must be notified within 4 days from the lodging of the application,4 and the applicant has 2 days to ask for a re-examination of the application in case the latter was denied or not admitted. Once again, the answer to the re-examination will have to be notified within another 2 days.5

Article 22 of the Asylum Law states that the applicant must remain in the ad hoc habilitated facilities during the admissibility assessment of his or her asylum claim at the border.6

It should be pointed out that the 72 hours – 4 day initial terms can be extended to 10 days in case UNHCR so requests, where the Ministry of Interior intends to declare the application  inadmissible considering that the applicant falls under one of the reasons for exclusion or denial within the Asylum Law.7

When these set time limits are not respected, the application will pass to be examined under the regular procedure and the person will be admitted to the territory. These legislative provisions seem to reflect what happens in practice, as there is no evidence on the failure to comply with time limits set by law or with any other established procedural guarantee.

In 2016, OAR rejected 954 asylum applications in the border procedure.8     

 

Personal interview

Concerning the conduct of the personal interview at border points, the only element which differs from the Regular Procedure: Personal Interview carried out in the Spanish territory is the authority conducting the interview. In fact, at borders, the interview is carried out by police officers.

Procedural safeguards for the interview are the same concerning the presence of interpreters, gender sensitivity and so forth. 

 

Appeal

The border procedure foresees the possibility to ask for the re-examination (re-examen) or petition of review of the asylum application when the latter has been denied or declared inadmissible. This procedure is not applicable to the other types of procedures. The petition for review has automatic suspensive effect and must be requested within the period of 2 working days from the notification of the decision to the applicant.9

The re-examination is performed under the direction of the lawyer, without the presence of any officer. There is no time-limit beyond the referral within 2 days from the notification.

Through this procedure, it is possible to incorporate new arguments, new documentation and even new allegations, other than those expressed in the application (even though it is a good idea to explain the reasons for this change of allegations, as well as the late addition of other documents to the record). The notice of review therefore consists of an extension of allegations that detail and clarify those aspects that are not clear in the initial application, with particular emphasis on the facts and information from the country of origin that have been queried.

Against the decision to dismiss the re-examination, which would exhaust administrative channels for appeal, the applicant can lodge a judicial appeal (Recurso contencioso-administrativo). In the case of a second inadmissibility decision, the applicant may submit a judicial appeal before the central courts (Juzgados centrales de lo contencioso). Conversely, in the case of denial, the judicial appeal will have to be presented before the National Court (Audiencia Nacional). In practice, the first type of appeal will be denied in the vast majority of cases, for which the second should be considered more effective.

In these second-instance appeals, no automatic suspensive effect is applicable. Instead, precautionary measure will have to be taken to avoid the removal of the applicant.

Organisations working with migrants and refugee criticise this latter element, as it represents an additional obstacle faced by international protection seekers detained at the border posts and in CIE to accessing effective judicial protection. The tight deadlines foreseen in the procedure at the border, and on the other hand the fast execution of removals and forced return once admission is refused, represent an obstacle in practice to filing a judicial appeal.    

 

Legal assistance

The same rules as in the Regular Procedure: Legal Assistance apply.

The main obstacles regarding access to legal assistance concern cases of applications at borders, notably in the Ceuta and Melilla border control checkpoints. In fact, there are several reported cases concerning refusal of entry, refoulement, collective expulsions and push-backs at the Spanish borders.10 Obviously, during these illegal operations that do not assess on a case-by-case the need of international protection of the person, legal assistance is not provided. Although UNHCR and other organisations denounce these practices, asylum seekers, and mostly Sub-Saharan nationals who try to cross land borders without permit, are victims thereof.

Difficulties in the provision effective legal assistance are also caused by the tight deadlines foreseen in the procedure at borders and in CIE, and on the other hand the fast execution of removals and forced return once admission to the procedure is refused.

  • 1. Article 21(2)(b) Asylum Law.
  • 2. CEAR, Las personas refugiadas en España y Europa 2015, Capítulo IV: La admisión a trámite, available at: http://bit.ly/1JZFqai
  • 3. Supreme Court, Judgment 4359/2012 of 22 November 2013, available at: http://bit.ly/21zAFty.
  • 4. Article 21(2) Asylum Law.
  • 5. Article 21(4) Asylum Law.
  • 6. Spanish Ombudsman, Recomendacion a la Secretaria General de Inmigracion y Emigracion para adoptar las medidas que procedan para prestar un servicio de asistencia social a los solicitantes de asilo en el puesto fronteriz, available in Spanish at: http://bit.ly/1QCeRaH.
  • 7. Article 21(3) Asylum Law.
  • 8. Informaiton provided by OAR, 28 February 2017.
  • 9. Article 21(4) Asylum Law.
  • 10. El Pais, ‘Why Spain is not an option for Syrian refugees seeking a new life’, 29 May 2015, available at: http://bit.ly/1Q8IUK7.See also the pending case before the European Court of Human Rights (ECtHR) N.D. and N.T. v. Spain, Applications No 8675/15 and 8697/15. A case summary may be found in the European Database of Asylum Law (EDAL) here: http://bit.ly/21xtu7g.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti