Any person willing to request international protection in Spain must make a formal application to the competent authorities. There are two main ways to apply for asylum: on the Spanish territory or at border controls. As explained in Types of procedures, asylum applications could not be lodged at embassies or consular representations outside the Spanish territory in practice up until 2020, although the Asylum Act foresees that possibility. While it was hoped that the landmark judgement of the Supreme Court would lead to positive changes in terms of access to asylum, there are currently no reports of asylum applications being registered by embassies or consulates.
In case the asylum seeker is outside the Spanish territory, he or she must make a formal application to the border control authority, i.e. the Border Police. If the person is already on Spanish territory, competent authorities with which an asylum application can be made are: the Office of Asylum and Refuge (OAR); any Aliens’ Office (Oficina de Extranjeros), Detention Centre for Foreigners (CIE) or police station.
The OAR is the authority competent for examining asylum applications.
If an application for international protection is lodged at a Spanish border, or from within a CIE, the border procedure applies. In this case, the OAR will have 4 days to declare the application admissible, inadmissible or unfounded. If any of the deadlines is not met, the applicant will be admitted to territory in order to undergo the regular procedure.
Following the identification of irregularities in the processing of the asylum applications lodged at the borders, in July 2022 the Spanish Ombudsman recommended the Minister of Interior to register and count all asylum applications lodged at borders, and to present disaggregate data with respect to those unadmitted, specifying how many applications were rejected despite having received a positive supporting report issued by UNHCR. The General- Directorate of Internal Policy of the Minister of Interior has not answered to the recommendation at the time of writing of this report.
For applications made on the territory, the OAR shall have one month to examine the admissibility of the application. If the OAR does not issue a decision within that time, it is understood that the application has been admitted. The decision shall determine whether the request is admissible or inadmissible. The Office may deem the application as inadmissible on the following grounds: (a) lack of jurisdiction for the examination of the application; or (b) failure to comply with admissibility requirements.
Regular and urgent procedure
If the OAR declares the application admissible in the regular procedure, it will have a period of six months to examine the application on the merits. However, in practice this period is usually longer and can take up to 2 years. During this time, the applicant will receive new documentation certifying his or her status as asylum seeker, in the form of a red card (tarjeta roja). During the first 6 months, the red card authorises the asylum seekers to reside in Spain. After six months, the red card has to be renewed and further grants the asylum seeker access to employment.
The Inter-Ministerial Commission of Asylum (Comisión de Asilo y Refugio, CIAR) is competent to decide on the application, upon a draft decision of the OAR. Asylum applications must always be examined and decided upon, including in cases where the six months deadline is not met.
In case the application is made at the border or from a CIE, the procedure to be followed is the urgent procedure, even if the person is on Spanish territory. The OAR will have three months to decide on the application in the urgent procedure. The applicant can ask for the application of the urgent procedure, or the Ministry of Interior can apply the procedure ex officio under the following circumstances:
- The application is manifestly well-founded;
- The application is made by a person with special needs, especially unaccompanied minors;
- The applicant raises only issues which have no connection with the examination of the requirements for recognition of refugee status or subsidiary protection;
- The applicant comes from a country considered a safe country of origin and has the nationality of that country or, in case of statelessness if he or she has residence in the country;
- The applicant makes the application after a period of one month;
- The applicant falls within any of the exclusion clauses under the Asylum Act.
The decision shall conclude the procedure with one of the following outcomes: (a) granting the status of refugee; (b) granting subsidiary protection; (c) denying the status of refugee or subsidiary protection and granting a residence permit based on humanitarian grounds; or (d) refusing protection.
In case of denial of international protection, the issuance of a return decision is not automatic. In addition, the competence to issue the international protection and return decisions lays with two different authorities.
In December 2021, the High Court (Tribunal Supremo) issued a decision establishing that an application for international protection implies the automatic suspension of the expulsion procedure for the irregular stay until the competent asylum authorities issue a decision which rejects or declares the application inadmissible. This means that the expulsion or return order cannot be executed before a decision on the asylum application has been taken, because during the decision-making period of the asylum application the stay of the applicant cannot be considered as irregular.
In November 2022, the High Court (Tribunal Supremo) adopted a decision establishing the obligation for the administration to evaluated the existence – or lack of – humanitarian reasons to impede the applicant’s return, and thus on the granting or not of the residence permit on such grounds. The High Court indicates that the administration is however obliged to consider such motives only if an explicit request has been made during the administrative phase of the asylum procedure, while in case of vulnerable applicants the administration is obliged ex officio to assess and determine the existence of humanitarian reasons.
In February 2023, Article 3 of the asylum law was modified through the law for the equal opportunities of transgender persons and guarantees of rights of LGTBI people, in relation to the definition of ‘refugee’, by the introduction of ‘gender identity’ as one of the grounds of persecution.
Legal remedies against negative decisions on asylum applications include administrative and judicial appeals and vary depending on the type of decision challenged:
- Rejection on the merits: A negative decision on the merits can be appealed before the National Court (Audiencia Nacional) within two months. An onward appeal against the Court’s decision can be submitted to the Supreme Court (Tribunal Supremo).
- Inadmissibility: Decisions declaring the application inadmissible are appealable before one of the Central Administrative Judges (Juzgados Centrales de contencioso-administrativo) within the National Court. The single-judge decision can then be appealed before the National Court, and subsequently before the Supreme Court.
- Border procedure: Rejection as manifestly unfounded or inadmissibility decisions in the border procedure can be challenged through a re-examination (re-examen) request before the OAR. If the OAR upholds the rejection or inadmissibility decision, the respective remedies mentioned in points (a) and (b) are available.
In all the above cases, it is possible for the asylum seeker to file before the OAR an administrative request for reversal (recurso de reposición) of its decision.
 Article 4(1) Asylum Regulation.
 Aliens’ Offices are managed by the General Commissariat of Aliens and Borders (Comisaría General de Extranjería y Fronteras) of the Police.
 Article 4(1) Asylum Regulation.
 Article 23(1) Asylum Act.
 Articles 21 and 25 Asylum Act.
 Defensor del Pueblo, ‘Solicitudes de protección internacional en puestos fronterizos’, 11 July 2022, available at: https://bit.ly/3Hfa02T; El Correo, ‘El Defensor del Pueblo denuncia irregularidades de Interior al tramitar los asilos, 5.9.22, available at: https://bit.ly/3kNReID.
 Article 20(2) Asylum Act.
 Article 20(1) Asylum Act.
 Article 25 Asylum Act.
 Article 17(2) Asylum Act.
 Boletín Oficial del Estado, ‘Ley 12/2009, de 30 de octubre, reguladora del derecho de asilo y de la protección subsidiaria’, available at: https://bit.ly/42dtYVI; El Derecho, ‘Modificación de la Ley 12/2009, de 30 de octubre, reguladora del derecho de asilo y de la protección subsidiaria’, 8 March 2023, available at: https://bit.ly/3YEgijB.