Types of procedures

Spain

Country Report: Types of procedures Last updated: 30/11/20

Author

  • Regular procedure
  • Dublin procedure
  • Admissibility procedure
  • Border procedure

 

Article 38 of the Asylum Act foresees the possibility to request international protection before Spanish Embassies and Consulates. As there is no Regulation to the 2009 Asylum Act, the previous 1995 Regulation of the previous Asylum Act is the legal provision currently being applied, and the latter makes no reference to this possibility. A new Regulation to the current Asylum Act would enable Article 38 to be implemented in practice. So, currently asylum applications cannot be made through embassies or consular representations outside the Spanish territory in practice, even though the Asylum Act foresees that possibility. In fact in practice, only family extension applications are accepted to be lodged at Spanish Embassies and Consulates.[1]



[1]           In the Grand Chamber judgment N.D. and N.T. v. Spain, the European Court of Human Rights (ECtHR) noted that the Government pointed out “that according to Article 2 § 2 of the Civil Code, Royal Decree 203/1995, laying down implementing arrangements for the previous version of the Law on asylum, was still in force. That decree provided for a specific procedure enabling the ambassadors to establish whether asylum applications submitted at the Spanish embassies and consulates were genuine and, if appropriate, to arrange for the transfer to Spain of the persons concerned, by means of an urgent admission in the event of a high risk in a third country. According to this Royal decree, an administrative decision had to be issued within six months and was subject to judicial review. The applicability of this procedure was confirmed by a circular letter of 20 November 2009, sent by the Government to all Spanish ambassadors and containing instructions regarding the arrangements for such transfers. This circular letter provides that “if in the exercise of his or her duties the ambassador considers that ‘there is a risk to [the asylum seeker’s] physical integrity’, he or she may secure the person’s transfer to Spain (this may entail issuing a visa and a one-way airline ticket to Spain, subject to prior approval by the Ministry)”. The court further noted that “it is aware of the limited powers of the Spanish ambassadors in the application of the special procedure under section 38 of Law 12/2009 and of the time-limit of six months for their decision, circumstances which may mean that not all asylum-seekers are provided with immediate protection.”[1] In this regard the author and civil society organisations noted that, even though the previous regulation would apply, in practice there are no asylum applications at Spanish embassies and consulates, due to the lack of the Regulation of the 2009 asylum law. There is also no official data on that. The data that are published concern refugee family extensions, even though they refer to applications at embassies without specifying that they are family extension applications (Ministry of Interior, Avance de solicitudes y propuestas de resolución de protección internacional Datos provisionales acumulados entre el 1 de enero y el 31 de diciembre de 2019 available in Spanish at: https://cutt.ly/5oeZczC). As far as the author is aware, the Circular letter as referred to by the Court has not been made public. Civil society organisations, as well as the Integration Forum (a consultative body foreseen by the Immigration Law) regularly recommends to adopt the regulation for implementing the disposition for establishing the right to lodge applications at embassies and consulates (CEAR, “España solo ofrece protección a uno de cada 20 solicitantes”, 4 February 2020, available in Spanish at: https://cutt.ly/FoeNNTS; Foro para la Integración Social de Inmigrantes, “Informe bianual sobre la situación de la integración de los inmigrantes y refugiados en España”, January 2020, available in Spanish at: https://cutt.ly/Qoe9jGS, 25-26.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation