Author
The Immigration Law and its Regulation establish the applicable rules, criteria and conditions for entrance and stay in the Spanish territory.
The checks on entry to and exit from the Spanish territory are competence of the General Department of Foreigner Affairs and Borders (Comisaría General de Extranjería y Fronteras) at the National Police.
Preliminary checks are carried out in different conditions according to the entry point. They can take place at border facilities, in transit zones, police stations, at docks, or in CATEs.
Preliminary checks are applied to any third country national who enters Spain. Entry into Spain must be made through an authorised border post (land, sea or airport), and the foreign national must present, among other documents, a passport or travel document to prove his/her identity, along with a visa allowing entry into Spain (unless it is not required).[1]
In case of irregular entry, preliminary checks and specific procedures for the forced return (devolución) apply. This return procedure[2] applies, among others, for persons who try to enter irregularly Spain. During this procedure, foreign nationals have the right to free legal aid and interpretation. The National Police is competent for processing the request to start the procedure. The competence on the decision belongs to the Sub-delegate or Delegate of the Government in the Autonomous Community and can be challenged through an administrative procedure.[3] When the forced return cannot be carried out within 72 hours, the competent authority will ask the competent judge to adopt the measure of the detention in a CIE. This is also the maximum time period in which foreigners are held in preventive detention in order to carry out the preliminary checks.
In relation to asylum seekers, the Asylum Law foresees that the irregular entry into the Spanish territory cannot to be sanctioned if the person involved meets the requirements to benefit from the international protection regime provided by law.[4]
Irregular entries into Spain occur mainly by sea, by jumping over the fences in Ceuta and Melilla[5] or or through various other unauthorized means of entering the two enclaves, as detailed in other sections of this report.
As mentioned above, the Spanish Red Cross is present at the main sea arrival points with its Emergency Immediate Response Teams (Equipos de Respuesta Inmediata en Emergencia, ERIE). The ERIE is composed of Red Cross staff and volunteers who are usually medical personnel, nurses and some intercultural mediators. Their first action consists in a health assessment to check the state of health and detect medical needs and the preparation of a health card for each of the newly arrived persons, which contains their personal data. After this health screening, the ERIE distributes food, water, dry clothes and a hygiene kit. The Spanish Red Cross further provides humanitarian and health care at this stage. This process must be carried out within a period of 72 hours in accordance with the maximum term of preventive detention foreseen by the Spanish legal system.
The Red Cross’ ERIE teams are located mainly in the south of Spanish mainland and in the Canary Islands (one team in each of the following islands: El Hierro, La Gomera, Tenerife, Gran Canaria, Lanzarote, Fuerteventura), two teams in Cadiz, and one in each of the following cities: Cartagena, Alicante, Almeria and Malaga. The Spanish Red Cross has its own facilities in the ports of Alicante, Almeria and Malaga where those disembarked are assisted.[6]
After a boat is rescued/arrives to the Spanish coasts, migrants are brought to the referent port equipped with humanitarian assistance provided by the Spanish Red Cross. After disembarkation, migrants undergo a triage for prioritising cases according to health needs and for the detection of vulnerabilities. Afterwards, migrants are moved to the reception waiting area where the Spanish Red Cross provides information (also through video messages) in different languages. At the docks, there may be also loudspeakers providing information (i.e. on place of arrival and process to be followed, details for the self-identification of vulnerable profiles, etc.) in different languages, leaflets, as well as professionals providing information in person. Filiation (i.e. collection of personal data and fingerprinting) of migrants is also carried out by the national police, as well as provision of food, shelter, and hygiene kits by the Spanish Red Cross. Besides, the Spanish Red Cross professionals ask migrants about the reasons for leaving their country, and detect individual needs (i.e. international protection needs, possible trafficked persons, possible UAMs, etc.), in order to provide for their adequate referral. After the national police has carried out the identification of migrants (in police stations, on the dock or in CATEs, according to the disembarkation port) and, for those who did not apply for asylum, has provided them with a forced return order (‘orden de devolución’), migrants are transferred to different reception places.
The Instruction nº 1 of 2024 issued by the State-Secretary of Security at the Ministry of Interior details how the identification of persons in detention has to be carried out. The Instruction also applies to persons apprehended while crossing irregularly the Spanish borders.[7] In addition, the Instruction nº 20 of 2005 adopted by the same body contains guidance addressed to the National Police on how to act when a boat is detected and rescued.[8]
It is worth noting that all the information (i.e. vulnerabilities, international protection needs, family unit, trafficked persons, UAMs, persons transferred to hospital, diseases, shipwrecks, etc.) collected by the Spanish Red Cross during this first humanitarian assistance to newcomers is transferred to the Ministry of Inclusion, Social Security and Migration within 24 hours, so that the reception facility where persons are referred will know this preliminary individual information.
Referral of migrants is made to different reception facilities according to the place of disembarkation. In case of Ceuta and Melilla, migrants are usually transferred to the CETIs, while in the Canary Islands they are referred to the emergency shelters in the archipelago. In mainland, they are accommodated in CAEDs or in the reception facilities within the humanitarian assistance program for migrants.
As mentioned in other sections of this report, challenges and concerns have been raised during the years on the legal assistance provided to migrants during sea arrivals, as lawyers are contacted only following the notification of the return order rather than at the moment of arrival of migrants in Spain. Similarly, concerns on collective expulsions at the borders, on the lack of private interviews, lack of individualised counselling as well as on the conditions of CATEs have been raised during the years. The separation of children from their parents during many months in order to carry out DNA tests, as well as the overcrowding and bad conditions of the Arguineguín dock in the Canary Islands have been also criticised, as detailed in previous updates of this report.
Identity checks are carried out also at international airports. If a person expresses the intention to apply for asylum, he/she is transferred to the airport’s area dedicated to accommodating asylum applicants (‘salas de asilo’). The Spanish Red Cross, which is present at the airports, provides first basic assistance and informs the asylum applicants about their rights (i.e. including legal assistance, that in the Madrid’s airport is provided by CEAR). If the person has not a valid document for entry in Spain, thus he/she tries to enter the country in an irregular manner, the person is transferred to the airport’s area addressed to denied asylum applicants (‘salas de inadmitidos’), where the person has to wait to be repatriated as soon as possible to the country where the person comes from (that in many occasion is not the country of residence).
If a third country national applies to make or lodge an asylum application during the preliminary checks, the person is informed about his/her rights and on how to ask for an asylum appointment and referred to the proper services and asylum reception facilities. The person will anyway follow with the identification – and, if necessary, health – checks protocol in place.
[1] Articles 12, 13 and 14 of the Regulation of the Immigration Law.
[2] Article 50 Immigration Law; article 23 of the Regulation of the Immigration Law.
[3] Ministerio del Interior, Policía Nacional, ‘Trámites de Extranjería. Más Información. Devolución de Extranjeros’, available here.
[4] Article 17 of the Asylum Law.
[5] Claudia Finotelli, Laura Cassain and Gabriel Echeverria, ‘MIRREM – Measuring Irregular Migration. Spain Country Brief on Irregular Migration Policy Context’, May 2024, p. 11, available here.
[6] Wikipedia, ‘Equipo de Respuesta Inmediata en Emergencias’, available here.
[7] Ministerio del Interior, Secretaría de Estado de Seguridad, ‘Instrucción núm. 1/2024 de la Secretaria de Estado de Seguridad por la que se aprueba el “procedimiento integral de la detención policial”’, 16 January 2024, available here.
[8] Ministerio del Interior, Secretaría de Estado de Seguridad, ‘Instrucción de la Secretaría de Estado de Seguridad núm. 20/2005, de 23 de septiembre, sobre control de la inmigración irregular que llega a España en embarcaciones’, 23 September 2005, available here.