Author
In the Spanish system, asylum seekers are placed in the reception place which better fits their profile and necessities. A case by case assessment is made by the NGOs responsible and/or by the Social Work Unit (Unidad de Trabajo Social, UTS), the unit in charge of referring asylum seekers to available reception facilities. The UTS falls under the Ministry of Inclusion, Social Security and Migration and is based at the OAR. After assessing the availability of reception spaces and the integral features of the applicant (age, sex, household, nationality, existence of family networks, maintenance, personal necessities, presumed trafficked person or a vulnerable woman, etc.), if feasible, the person is placed in the place that best responds to their needs. This placement is done informally as a matter of administrative practice, without a formal decision being issued to the asylum seeker. Once the applicant is given a place within the reception system, they must remain in the same province.[1] Most of asylum seekers and refugees who are hosted in official reception facilities live in Andalucía, Madrid and Catalonia.
Normally asylum seekers do not move within the Spanish territory, as they do not have many reasons to do so, as they are normally placed with family members or close to any other contact they have in the country. The situation is different in cases of family members who reach separately the Spanish territory or access independently the asylum reception system. Difficulties may arise in the possibility for family members to join each other, particularly when they are in a different phase of the three-stage asylum reception process (see Criteria and Restrictions to Access Reception Conditions). In this case, there are obstacles to being hosted together (e.g. administrative burden, lack of capacity in certain centres etc.).
Asylum seekers that have made their asylum application in Ceuta or Melilla undergo different rules on freedom of movement. As a result of the special regime applied by the authorities to these two autonomous cities, applicants have to wait for the decision regarding the admissibility of their claim in order to be transferred to the Spanish peninsula and its asylum reception system, together with an authorisation issued by the National Police allowing them to be transferred to the mainland. Limitations are also applied to asylum applicants who pass the admissibility phase, and should be entitled to free of movement in the rest of the Spanish territory. These limitations are informally imposed on asylum seekers. The new Reception Regulation foresees the application of reception conditions also in the facilities in Ceuta and Melilla.
As documented in the previous updates of this report, there has been extensive case law and litigation on the matter in recent years, with various Spanish courts regularly recognising the right to freedom of movement of asylum seekers.[2] By way of illustration, the limitation to the right to freedom of movement across Spanish territory has been declared unlawful by Spanish courts in more than 18 cases from 2018 to 2021.[3]
In practice, however, the authorities continued to restrict asylum seekers’ access to the mainland up until 2020.
According to the information currently available, the practice started to change from November 2021, and asylum seekers admitted at 1st instance were transferred to the mainland.[4] In mid-December, for example, 18 asylum seekers were transferred from Melilla to the mainland and referred to reception facilities in Cataluña, Andalucía and Castilla y León after their applications were admitted at first instance. The asylum seekers were authorized to leave the enclave thanks to the appeals lodged by three NGOs (CEAR, the Spanish Red Cross, and Cepaim). It is hoped that such practice will continue, and that legislation and jurisprudence will be finally correctly applied.
In August 2022, Amnesty International reiterated its call to not limit the freedom of movement of migrants and asylum seekers in Ceuta and Melilla, and to guarantee the transfer to mainland of vulnerable persons.[5]
Similar issues were also reported for what concerned the Canary Islands and in February 2021 the Spanish Ombudsperson reminded the Ministry of Interior its duty to ensure asylum seekers’ freedom of movement within the national territory.[6] He addressed “a reminder of legal duty” to the Directorate General of the Police, pointing to “its legal duty to prevent any limitation of the fundamental rights to free movement and residence of applicants for international protection who wish to move from the autonomous cities of Ceuta and Melilla or from the autonomous community of the Canary Islands to the mainland”. The reminder responds to a complaint raised in early 2020 following the prevention of departure to the mainland of an asylum seeker in Gran Canaria. The Spanish Ombudsperson also asked the National Police to provide information on the reasons to block migrants from reaching the Canary Islands as well as the impossibility to access flights and boats to mainland, even for persons holding identification documents and passports.[7] Following a judicial decision in the Canary Islands, according to which migrants with a passport or an application for international protection may travel to the mainland, UNHCR and NGOs reported improvements in relation to freedom of movement for migrants and asylum seekers who reached the archipelago. UNHCR reported, however, that NGOs managing the reception facilities are still required to ask for authorisation from police to transfer asylum seekers to the mainland.[8]
[1] Reception Regulation.
[2] TSJ Madrid, Order 197/2018, 19 June 2018, available in Spanish at: https://bit.ly/2SZXJFq; Order 196/2018, 19 June 2018, available in Spanish at: https://bit.ly/2DjocIE; Order 276/2018, 27 June 2018, available at: https://bit.ly/2CuK8i9; TSJ Madrid, Decision 817/2018, available in Spanish at: https://bit.ly/2HiAswR; TSJ Madrid, Decision 841/2018, available in Spanish at: https://cutt.ly/frw0JYG.
[3] CEAR, ‘Nuevo fallo judicial a favor de la libre circulación de solicitantes de asilo en Ceuta’, 11 July 2018, available in Spanish at: https://bit.ly/2ucgxqz.
[4] Information provided by the legal service of Accem in November 2021. El Foro de Ceuta, ‘Nueva salida del CETI: 40 personas parten a centros de acogida en la península’, 20 October 2022, available in Spanish at: https://bit.ly/40vNyLf; Ceuta Actualidad, ‘Un sueño cumplido para 30 residentes del CETI’, 25 August 2022, available in Spanish at: https://bit.ly/3lwBB90.
[5] La Voz del Sur, ‘Amnistía Internacional exige que no se limite la libertad de movimiento de los inmigrantes en los CETI’, 24 August 2022, available in Spanish at: https://bit.ly/3KuIf80.
[6] ECRE, ‘Atlantic Route: Ombudsman Demands Free Movement for Asylum Seekers, Investigations into Possible Hate Crimes, Covid Outbreak in Reception Centre’, 5 February 2021, available at: https://bit.ly/2LteWso.
[7] La Provincia, ‘El Defensor del Pueblo pide explicaciones al supuesto bloqueo de migrantes en Canarias’, 12 February 2021, available in Spanish at: https://bit.ly/3aqPf5o.
[8] US Department of State, 2022 Country Reports on Human Rights Practices: Spain, 20 March 2023, available at: https://bit.ly/3mpsNCl.