Author
General (scope, time limits)
The border procedure is applied to all asylum seekers who ask for international protection at airports, maritime ports and land borders, as well as CIE.[2] As long as the border procedure is pending, the applicant has not formally entered the Spanish territory, i.e. a fiction of non-entry applies. This is not the case in applications submitted in Migrant Temporary Stay Centres (Centros de Estancia Temporal para Inmigrantes, CETI) in Ceuta and Melilla, which are considered to be made on the territory and fall under the regular procedure rather than the border procedure, as clarified by the Audiencia Nacional.[3]
In 2023, a total of 3,386 persons applied at a border post and 877 at a CIE.[4] Border procedures represented around 2.61% of the total caseload of the Office for Asylum and Refuge (OAR) in 2023, and around 3.06% in 2022. This low number is indicative of the obstacles faced by asylum seekers in accessing the procedure at the border and the issues of push-backs (see Access to the territory and push backs).
In 2019, for the first time, the Government had applied the border procedure to asylum seekers who had jumped the fence.[5] However, this had been applied only to two collective jumps that occurred in Ceuta in 2019, while in Melilla the determination of the applicable procedure to such cases was arbitrary, i.e. the border and regular asylum procedure were applied arbitrary to the different persons.[6] This practice has not been reported during 2020. This also likely to be due to the fact there were only a few attempts to jump over the fences due to the COVID-19 pandemic. As previously indicated, the Asylum Law foresees the application of the border procedure to asylum claims lodged at airports, maritime ports, land borders and expulsion centres (CIE),[7] but it had never been applied before in such a situation. Discretionality in the application of such practice was observed also in 2022. For example, the border procedure was applied for people jumping the fence in Melilla at the beginning of March, but that was not the case for a similar occurrence in June of the same year.
It should also be noted that since January 2020, Spain started to require a transit visa for nationals originating from Yemen.[8] The measure is still in place as of March 2024. In addition, Spain requires such a transit visa also for nationals from Palestine and Syria.[9] In practice, this means that they cannot access Spain if coming by plane without a visa. For those who manage to board a Spain-bound plane in any case, their application will be processed at the airport of arrival.
Grounds for applying the border procedure
The aim of the border procedure is to assess whether an application for international protection is admissible or inadmissible and whether the applicant should be granted entry to access the asylum procedure. As provided in Article 20(1) of the Asylum Act, applications can be considered inadmissible on the following grounds:
- When another country is responsible under the Dublin III Regulation or pursuant to international conventions to which Spain is party;
- The applicant is recognised as a refugee and has the right to reside or to obtain international protection in another Member State;
- The applicant comes from a safe third country as established in Article 27 of Directive 2005/85/EC;
- The applicant has presented a subsequent application but with different personal data and there are no new relevant circumstances concerning their personal condition or the situation in their country of origin; or
- The applicant is a national of an EU Member State.
According to information shared by the Spanish authorities, the Dublin III Regulation is not applied in application lodged at Spanish border posts.
Nevertheless, in the border procedure, additional grounds to those mentioned under the Admissibility Procedure are applied to establish the so-called reasons for denial of the application on the merits. In fact, applications at borders can be denied as manifestly unfounded in the following circumstances:[10]
- The facts exposed by the applicant do not have any relation with the recognition of the refugee status;
- The applicant comes from a Safe Third Country;
- The applicant falls under the criteria for denial or exclusion sent under Article 8, 9, 11 and 12 of Asylum Act;
- The applicant has 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 serious harm.
Almost in all cases, the border procedure involves an examination of the facts presented by the applicant for substantiating their request for international protection.
This leaves a high level of discretion in the decision of the competent authority on the admissibility of the application, as the law does not clarify which criteria should be considered to establish whether the facts presented by the applicant inconsistent, contradictory or improbable. In addition, this assessment is carried out within very short time limits, compared to the regular procedure. However, in 2017 the Audiencia Nacional stressed that an asylum application cannot be rejected on the merits in the border procedure unless it is manifestly unfounded. In that respect, a claim is not manifestly unfounded where it is not contradicted by country of origin information or where UNHCR has issued a positive report supporting the granting of protection.[11]
If the application is not considered as manifestly unfounded, the person can enter the territory and the application is processed through an urgent procedure (3 months – see section on Regular Procedure: Fast-Track Processing) where the application has been lodged at a Detention centre for foreigners (CIE), and through the ordinary procedure (6 months) if the application has been lodged at a border post.
Time limits
The border procedure foreseen under Spanish Asylum Act is characterised by its strict time limits, which cannot exceed 4 days for a first instance decision and another 4 days for appeals. Similarly to 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,[12] 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.[13] Article 22 of the Asylum Act states that the applicant must remain in the ad hoc dedicated facilities during the admissibility assessment of their asylum claim at the border (see Place of Detention).[14]
The 4-days’ time limit for the OAR to issue its decision can be extended to 10 days by the Ministry of Interior on the basis of a reasoned decision if UNHCR so requests.[15] This applies to cases where the Ministry of Interior intends to reject the application from examination considering that the applicant falls under one of the reasons for exclusion or denial from protection within the Asylum Act.[16]
In 2017, the OAR started applying the criteria set by the Audiencia Nacional concerning the appropriate counting of the deadline established by the Asylum Act for completing the border procedure, 96 hours from the moment the application is made.
Quality of the procedure
Applications at borders and in CIE are, in general, likely to be refused or dismissed as inadmissible compared to applications made on the territory, thus increasing the vulnerability of applicants concerned. This fact was highlighted in the past by several organisations in Spain,[17] 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.[18] Since 2020, the Office for Asylum and Refuge (OAR) did not provide statistical information on the outcome of the border procedure (for information on the years 2015 to 2019, see AIDA Country Report on Spain – 2020 Update).
Personal interview
The personal interview at border points is carried out by police officers, as is generally the case in the Regular Procedure: Personal Interview. OAR officers may request, however, to conduct a second interview with the asylum seeker if they deem it necessary.[19] In practice, an additional interview is conducted in cases where there are doubts or contradictions resulting from the first interview or from the documentation submitted. If everything seems clear, however, the OAR caseworker can examine the application and take a decision on the merits solely on the basis of the interview that has been conducted with police offices.
Procedural safeguards for the interview are the same concerning the presence of interpreters, gender sensitivity and so forth.
Interviews in border and regular procedures mainly follow the same rules and format, even though they can vary according to the city and professionals who carry them out. For example, in the case of interviews at the Madrid Barajas Airport, interviews are usually carried out by OAR officers, who have a different level of expertise on asylum matters compared to police officers.
Appeal
Request for re-examination (re-examen)
The border procedure foresees the possibility to ask for the re-examination (re-examen) of the application for international protection when the latter has been declared inadmissible or rejected from examination (‘denegar la solicitud’). This type of administrative appeal is only foreseen in the context of border procedures. The request for re-examination has automatic suspensive effect and must be requested in front of the Minister of Interior within 2 days from the notification of the decision to the applicant.[20] The National High Court has clarified that this time limit must be calculated in hours rather than in working days.[21]
In May 2019, the Supreme Court ruled on the effects of submitting a re-examination of an asylum claim to another authority as well as on the calculation of time limits, i.e. as of when the time limit of 2-days starts to run. As regards the competent authority, the Supreme Court noted that the Asylum Act does not indicate where re-examination requests should be filed. It therefore ruled that the general rules and guarantees applicable to the administrative procedure under the general Spanish Administrative Procedures Law applied to such cases. This means that the application for re-examination does not have to be filed where the applicant lodged an asylum claim and that it can be filed at any registry or public office of the Ministry of Interior. Moreover, the Court stated that the calculation of the two-day deadline starts at the moment of receipt by the competent authority of the request for re-examination.[22]
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 48 hours 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). However, it is not possible to provide further clarifications on statements expressed in the application. 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.
Onward judicial appeals
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 an inadmissibility decision, the applicant may submit a judicial appeal before the central courts (Juzgados centrales de lo contencioso). Conversely, in the case of rejection on the merits, 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, interim measures will have to be taken and asked by the applicant’s lawyer to avoid the removal of the applicant despite having lodged an appeal.
Organisations working with migrants and refugees 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 border procedure, 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
Access to free legal assistance in the border procedure is mandatory and guaranteed by law.[23] As opposed to the regular procedure, applicants for international protection are thus always assisted by a lawyer during their interviews with the border police and the OAR in the context of border procedures, as well as during appeal proceedings. The National High Court (Audiencia Nacional) further held that the mandatory nature of legal assistance at the border entails an obligation to offer legal aid to the applicant that is in the process of lodging the application for international protection, even if they do not ask for it or rejects it.[24] The same rules as in the Regular Procedure: Legal Assistance apply. The Asylum Act provides reinforced guarantees in this context, however, as it states that legal assistance is mandatory for applications lodged at the border.[25]
The main obstacles regarding access to legal assistance in practice 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.[26] Obviously, during these operations, a case-by-case assessment of individual protection needs is not carried out, and 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, continue to be subjected to such practices.
As discussed in Access to the Territory, obstacles to effective legal assistance in points of disembarkation intensified in areas such as Almería, Tarifa and Motril in 2017. Access to legal assistance improved since then, with some Bar Associations issuing specific guidance in this regard. At the moment, there are different organisations providing legal assistance to migrants and asylum seekers in the different islands belonging to the archipelago of the Canary Islands (i.e., CEAR, Accem, Spanish Red Cross, Cáritas,[27] Fundación Cruz Blanca,[28] etc.). In addition, the Service for Equal Opportunities and Gender Violence of the town hall of Gran Canaria provides legal counselling; similar support is offered by the seven Commissions for Free Legal Aid of the Government of the Canary Islands, which also offer support and counselling on the asylum procedure.[29]
As regards the provision of legal assistance at Madrid Barajas Airport, the main concerns relate to private lawyers, i.e. the lack of specialisation in asylum-related issues and paid services; since asylum seekers have the right to free legal aid provided by NGOs or Bar Associations. CEAR has a team of lawyers assisting asylum seekers at the Madrid Barajas Airport.
Difficulties in the provision of 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.
Another important element to bear in mind relates to the absence of legal assistance at the external borders. This does not necessarily concern persons who have been channelled into the border procedure, but rather the thousands of persons who have no access thereto as they are being pushed-back and/or refused entry at the border. Legal assistance in this context is undermined by obstacles such as the lack of information for newly arrived persons and the lack of possibility to access a lawyer. Concerns continued to be raised by the Spanish Ombudsperson, in its capacity as National Prevention Mechanism against Torture in its 2022 annual report.[30] The body highlighted the deficiencies in terms of lack of individual and private interviews with newcomers, limited information provided on their rights, lack of interpreters, and impossibility to contact with the assigned lawyer due to lack of their contact information.
[1] Land borders in this case mainly refers to the Ceuta and Mellila borders as well as CIEs, as all applicants held in CIEs are subject to a border procedure.
[2] See e.g. Audiencia Nacional, Decision SAN 1908/2019, 23 May 2019; SAN 1282/2019, 13 February 2019.
[3] Audiencia Nacional, Decision SAN 1780/2017, 24 April 2017. CEAR, España comienza el año exigiendo visado de tránsito a las personas de Yemen, 3 January 2020, available in Spanish at: https://cutt.ly/5rc3wI7.
[4] Ministerio del Interior, Subsecretaría del Interior, Dirección General de Política Interior, ‘Avance de datos de protección internacional, aplicación del Reglamento de Dublín y reconocimiento del estatuto de apátrida. Datos provisionales acumulados entre el 1 de enero y el 31 de diciembre de 2023’, January 2024, available in Spanish at: https://tinyurl.com/34jtmrh8.
[5] El Diario, El Gobierno aplica por primera vez en Ceuta el procedimiento exprés para rechazar el asilo tras el último salto, 17 September 2019, available in Spanish at: https://cutt.ly/feJB1AT.
[6] CEAR, Informe 2020. Las personas refugiadas en España y en Europa, June 2020, available in Spanish at: https://bit.ly/2XvcNyI, 85.
[7] Articles 21 and 25 Asylum Act.
[8] CEAR, ‘España comienza el año exigiendo visado de tránsito a las personas de Yemen’, 3 Janaury 2020, available in Spanish at: https://cutt.ly/5rc3wI7.
[9] Information provided by Accem’s legal service on March 2023.
[10] Article 21(2)(b) Asylum Act.
[11] Audiencia Nacional, Decision SAN 1179/2017, 17 March 2017. On the importance of UNHCR reports, see also Supreme Court, Decision STS 3571/2016, 18 July 2016; Audiencia Nacional, Decision SAN 335/2017, 3 February 2017.
[12] Article 21(2) Asylum Act.
[13] Article 21(4) Asylum Act.
[14] Defensor del Pueblo, ‘Recomendación 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 fronterizo’, 7 October 2015, available in Spanish at: http://bit.ly/1QCeRaH.
[15] Article 21(3) Asylum Act.
[16] Article 21(3) Asylum Act.
[17] CEAR, Las personas refugiadas en España y Europa 2015, Capítulo IV: La admisión a trámite, available in Spanish at: http://bit.ly/1JZFqai.
[18] Supreme Court, Decision 4359/2012, 22 November 2013, available in Spanish at: http://bit.ly/21zAFty.
[19] Article 17 Asylum Act.
[20] Article 21(4) Asylum Act.
[21] Audiencia Nacional, Decision SAN 2591/2017, 8 June 2017; Decision SAN 2960/2017, 30 June 2017.
[22] Spanish Supreme Court, Decision STS 1682/2019, 27 May 2019, available in Spanish at: https://cutt.ly/he9AzAZ.
[23] Article 16(2) Asylum Act, citing Article 21.
[24] Audiencia Nacional, Decision SAN 5389/2017, 28 December 2017.
[25] Article 16(2) Asylum Act, citing Article 21.
[26] CEAR, ‘Informe 2022: Las personas refugiadas en España y Europa’, June 2022, available in Spanish at: https://bit.ly/3Llx9V2, 95. US Department of State, ‘2022 Country Reports on Human Rights Practices: Spain’, 20 March 2023, available at: https://bit.ly/3mpsNCl.
[27] Cáritas, see: https://bit.ly/42hMMTE.
[28] Fundación Cruz Blanca, see: https://www.fundacioncruzblanca.org/.
[29] Information provided by Accem -Tenerife in April 2022.
[30] Defensor del Pueblo, ‘Informe anual 2022 – Anexo A – Informe Completo del Mecanismo Nacional de Prevención (MNP)’, March 2023 available in Spanish at: https://bit.ly/406FEqO, 48.