In all cases, asylum claims are examined by the Inter-ministerial Commission on Asylum (CIAR) of the Ministry of Interior.1 The Commission is composed by a representation of each of the departments having competences on: home and foreign affairs; justice; immigration; reception; asylum seekers; and equality. UNHCR also participates, but only has the role to express its opinion on asylum cases, without veto power. The CIAR proposes the response to an asylum application, but the final decision lies with and is taken by the Ministry of Interior, no matter the type of procedure. The Spanish Ministry of Interior is in charge of broad range of tasks concerning national security, such as the management of national security forces and bodies – including police guards and guardia civil, which are responsible of border control activities – penitentiary system, foreigners and immigration-related issues, and asylum applications.2
The Asylum Law rules that, where applicants do not receive a final notification on the response to their first instance asylum claim after 6 months, the application will have to be considered rejected.3 In practice, many applications last much more than 6 months. In these cases, usually no automatic notification of denial is provided by the OAR, and applicants prefer to wait until the final decision communication instead of asking a response to the authority, as they risk receiving a denial and having reception conditions and benefits withdrawn. If the applicant so wishes, however, he or she can lodge a judicial appeal when no response on the asylum claim is provided in time.
The duration of the asylum process is on average 1.5 years, although official figures by OAR are not available.4 UNHCR Spain has recently declared that the Spanish government has a backlog of pending cases reaching 19,000 asylum claims, presented in the past years mainly from nationals from Ukraine, Venezuela, Syria, Nigeria and Mali.5
Article 25 of the Asylum Law lays down the urgent procedure, a prioritised procedure whereby the application will be examined under the same procedural guarantees as the regular procedure, but within a time-limit of 3 months instead of 6 months.6
The urgent procedure is applicable in the following circumstances:7
(a) The application is manifestly well-founded;
(b) The application was made by a person with special needs, especially unaccompanied minors;
(c) The applicant raises only issues which have no connection with the examination of the requirements for recognition of refugee status or subsidiary protection;
(d) The applicant comes from a safe country of origin and has the nationality of that country or, in case of statelessness has residence in the country;
(e) The applicant applies after a period of one month, without justification; or
(f) The applicant falls within any of the exclusion grounds under the Asylum Law.
The urgent procedure is also applied to applicants who have been admitted to the in-merit procedure after lodging a claim at the border or within the CIE.8 3,857 applications were processed under the urgent procedure in 2016, out of which 3,088 at the border and 769 in CIE.9
The authority in charge of the asylum decision is the Ministry of Interior like in any asylum procedure in Spain. CIAR, responsible for the case examination, will be informed on the urgency of the cases.10
There was information from the European Migration Network suggesting that the urgent procedure is applied to Syrian asylum seekers in practice.11 However, this is not confirmed as a systematic procedure by lawyers working with asylum seekers.
Article 17 of the Asylum Law states that asylum applications are formalised by the conduct of a personal interview, which will always be conducted individually. This legislative provision is respected in practice, as all asylum seekers are interviewed. The law also provides the possibility of carrying out other interviews with the applicant after the initial one foreseen for the formalisation of the asylum claim. These interviews can take place any time during the procedure after the claim is declared admissible.
Unfortunately, not all asylum interviews are conducted by the OAR, nor the Ministry of Interior. In fact, as previously mentioned, police and border guards also have the competence of registering asylum applications, for which in these cases they are the authority in charge of conducting the asylum interview. This mostly happens to asylum claims made at borders and from the CIE.
Article 18 of the Asylum Law provides the right of all asylum seekers to have an interpreter, which also is respected in practice. For this purpose, the Spanish Ministry of Interior has employed interpreters and has also established contracts with NGOs for free provision of translation and interpretation services to asylum seekers at all stages of their asylum application. Thanks to this collaboration, interpreters are available for mostly all languages requested by asylum seekers.
Since the European relocation scheme of refugees from Greece and Italy entered into force in September 2015, organisations are facing problems in finding the needed interpreters. This is due to the fact that the first group of 12 refugees that has been transferred from Italy are Eritrean nationals (except from one Syrian national),12 whose community is very consistent in the Italian peninsula due to historical factors, but not in Spain. Finding Tigrinya speakers living in Spanish territory has been therefore a challenge, but proper solutions were found.
Each authority and entity responsible for the provision of the service has adopted its own code of conduct applicable to the interpreters and translators it has contracted.
There have been reported cases of quality and conduct problems during the interviews. Usually, the system adopts self-control measures, as the authority responsible for interpreters always receives feedback on the work of the interpreter.
Since June 2016, the Ministry of Interior has changed subcontractors for the provision of interpreters to the OAR and all police offices that register asylum applications in the Spanish territory, for which NGOs do not provide services anymore. The contract was awarded to the Ofilingua translation private company. Since then, several shortcomings have been reported, mainly due to the fact that the agency does not have a specific focus on migration and asylum, for which it did not count on the needed expertise due to the sensible thematic of asylum and did not have the contacts of most of the needed interpreters by the OAR. Also, interpreters who were working before with NGOs are now paid much less and their working conditions have worsened, thereby potentially affecting the quality of their work.
Since the beginning of the EU Relocation scheme, asylum seekers from Greece and Italy’s hotpots have been transferred to Spain. The process has brought to Spain nationalities of asylum seekers who cannot count on a community in the country, such as Iraqis, Kurds and Eritreans. Due to the absence of a sizeable community, there have been many difficulties in finding interpreters who speak Tigrinya, Pashtu or Sorani. This fact has caused many shortcomings and obstacles not only to asylum authorities but also to NGOs providing services and accommodation to asylum seekers.
Due to this, sometimes lawyers and asylum seekers are asked to move from the place they are to the closest place where interpretation can be provided, which was usually not done under the precedent interpretation service.
When the asylum applicant wants to appeal against the first instance decision, there are two types of appeals he or she can lodge:
(a) An administrative appeal for reversal (Recurso de reposición); or
(b) A judicial appeal before the Chamber of the National High Court (Audencia Nacional).
None of these two appeals have automatic suspensive effect, and none of them foresee a hearing of the applicant.13
The first type of appeal should be submitted before OAR under the Ministry of Interior, within 1 month from the notification of refusal.14 It marks the end to the administrative procedure, and therefore it is optional as the lawyer can appeal directly to the courts. This first option for appealing is based on points of law and does not assess the facts. For this reason, the applicant and his or her lawyer may prefer to file the contentious administrative appeal.
An appeal against a negative decision on the merits of the claim can be filed before the Administrative Chamber of the High National Court (Audiencia Nacional) within 2 months term from the notification of the asylum denial. This appeal is not limited to points of law but also extends to the facts, therefore the Court may re-examine evidence submitted at first instance. If the Court finds that the applicant should be granted protection it has the power to grant itself the protection status to the applicant and it is not necessary to return the case to the Ministry for review.
In case of a rejection of the appeal, a further onward appeal is possible before the Supreme Court (Tribunal Supremo),15 which in case of a positive finding has the power to grant the applicant with an international protection status.
Nonetheless, it should be kept in mind that there is no deadline for the Court to decide, and that the average time for ruling is from 1 to 2 years. During this period, if the applicant has expired it maximum duration within the asylum reception system (12 months), the person will have no reception conditions.
For this reason, most of the applicants and their lawyers prefer to collect more documentation to support the asylum application, in order to start a new asylum claim from the starting point of the asylum process. In fact, the Asylum Law does not set a limit number of asylum applications per person, and as mentioned in the section on Subsequent Applications, it does not establish a specific procedure for subsequent applications.
Spanish legislation and Article 18(1)(b) of the Asylum Law guarantee the right to legal assistance to asylum seekers from the beginning and throughout all stages of the procedure. This assistance will be provided free of charge to those who lack sufficient financial means to cover it, both in the administrative procedure and the potential judicial recourses.
In the practice, obstacles to accessing legal assistance have been reported mostly in applications lodged from CIEs and at land borders during collective expulsions and pushbacks. For this reason, refer to section regarding Border Procedure.
- 1. Article 23(2) Asylum Law.
- 2. Royal Decree 400/2012 of 17 February 2012 developing the basic organic structure of the Ministry of Interior.
- 3. Article 24(3) Asylum Law.
- 4. Information provided by OAR, 28 February 2017.
- 5. Publico, ‘España acumula 19.000 peticiones de asilo sin resolver, según ACNUR’, 10 January 2017, available in Spanish at: https://goo.gl/We8Gbp.
- 6. Article 25(4) Asylum Law.
- 7. Article 25(1) Asylum Law.
- 8. Article 25(2) Asylum Law.
- 9. Information provided by OAR, 28 February 2017.
- 10. Article 25(3) Asylum Law.
- 11. European Migration Network, Annual Report 2014, May 2015, 14.
- 12. El Mundo, ‘Llegan a Madrid los primeros refugiados que acoge España, reubicados desde Italia según el plan de la UE’, 9 November 2015, available in Spanish at: http://bit.ly/1Oyvt7Q.
- 13. Article 29(1) Asylum Law.
- 14. Article 29 Asylum Law.
- 15. Article 29(2) Asylum Law.