Author
Up until 2020, applications for international protection could not be lodged at Spanish embassies or consular representations, even though Article 38 of the Asylum Act foresaw that possibility. This was due to the absence of a Regulation to the 2009 Asylum Act. As a consequence, the 1995 Regulation to the previous Spanish Asylum Act, not foreseeing the possibility to apply for international protection at embassies or consulates, was applied.[1]
Through a landmark judgement of October 2020, the Supreme Court finally clarified that the loophole resulting from the lack of an updated Regulation should not limit the exercise of the right to apply for international protection at Spanish Embassies and Consulates.[2] The Court specified that Ambassadors and Consuls have the duty to assess whether the applicant’s safety is at risk, in which case they must be transferred to Spain.[3] Thus, the judgement overturned previous practices and officially recognised the right to apply for asylum at embassies and consulates. For more than two years following the Court’s decision, no information was made available as to whether persons in need of international protection were able to apply for asylum at Embassies and Consulates.
According to Accem’s knowledge, more recently persons in need of international protection have been admitted to present their application at Spanish Embassies and Consulates. In particular, this applies to Afghan refugees who present their applications at the Spanish embassies in Pakistan and Iran, and there have been also some cases of Afghans applying at the Spanish embassy in Türkiye. As far as Accem is aware, the demand is high, but no official data on the number of applications presented through this channel is available. In March 2024, Accem started a pro bono project together with a law firm to provide legal support to persons applying at Spanish embassies. However, the use of the embassy procedure is currently not clearly regulated.
Following a parliamentary request, in April 2023 the Minister of Interior informed that 4,000 persons applied for international protection at Spanish embassies and consulates in the last two years.[4]
In January 2024, the political party ‘Sumar’ submitted a law proposal on access to asylum and the lodging of international protection applications at Spanish embassies and consulates.[5]
[1] For an analysis of the previous practice on this regard, as well as relevant jurisprudence such as the N.D. and N.T.v.Spain judgement of the ECtHR, refer to the previous version of this report, available here: https://bit.ly/3j7X2b6, 17.
[2] Supreme Court, Sala de lo Contencioso, STS 3445/2020, 15 October 2020, available in Spanish at: https://cutt.ly/whkz8eN.
[3] El Diario, ‘El Supremo reconoce el derecho a pedir asilo en las embajadas en contra del criterio del Gobierno’, 18 November 2020, available in Spanish at: https://cutt.ly/jhkvtSM.
[4] Europa Press, ‘Más de 4.000 personas solicitaron protección internacional desde fuera de España en los últimos dos años, según Marlaska, 26 April 2023, available at: https://tinyurl.com/ypvw3n57
[5] Boletín Oficial de las Cortes Generales, Congreso de los Diputados, ‘Proposición de Ley sobre acceso al derecho de asilo y solicitudes de protección internacional en embajadas y consulados. Presentada por el Grupo Parlamentario Plurinacional SUMAR’, 19 January 2024, available at: https://tinyurl.com/2zbmc58b