Border procedure (border and transit zones)

Spain

Country Report: Border procedure (border and transit zones) Last updated: 30/11/20

Author

General (scope, 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.

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.[1] In these cases, the applicant has not formally entered the Spanish territory. 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.[2]

In 2019, a total of 7,020 persons applied at a border post or transit zone and 2,164 at CIEs.[3]

Moreover, for the first time, the Government applied the border procedure to asylum seekers who had jumped the fence in 2019.[4] As explained, the Asylum Law foresees the application of the border procedure to asylum claims lodged at airports, maritime ports, land borders and expulsion centers (CIE),[5] but it had never been applied before in such a situation. It is unclear whether the border procedure will continue to be applied in such cases throughout 2020.

It should also be noted that, in January 2020, Spain started to require a transit visa for nationals originating from Yemen.[6] In practice, this means that they cannot reach Spain by plane and that their application is likely to be processed at airports. In 2019, there were 470 Yemeni nationals who applied for asylum in Spain.[7]

6,494 asylum seekers, nearly 12% of the total number of applicants in Spain, made applications at borders and transit zones in 2018. According to the OAR, 6,514 applications were processed under a border procedure in 2018.[8]

In 2019, the NGO CEAR reported that, out of the total of asylum applications lodged in Spain until October 2019, only 6% were lodged at the border. This results from the difficulties faced by asylum seekers in accessing the asylum procedure at borders as well as from the persisting push-back practices in Ceuta and Melilla.[9] As regards full year figures, there were a total of 7,020 applications made at borders according to the Ministry of Interior in 2019.

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]

  1. The facts exposed by the applicant do not have any relation with the recognition of the refugee status;
  2. The applicant comes from a Safe Third Country;
  3. The applicant falls under the criteria for denial or exclusion sent under Article 8, 9, 11 and 12 of Asylum Act;
  4. 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.

Both in law and mostly in practice the border procedure therefore consists in an evaluation of the facts presented by the applicant for substantiating his or her request for international protection.

This element leaves a high level of discretion in the decision making of the competent authority on the admission of the application, as it does not state the criteria for which allegations should be judged as inconsistent, contradictory or improbable. In addition, it should be kept in mind that this assessment is made in very short time limits, compared to the regular procedure. However, the Audiencia Nacional has stressed in 2017 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]

Once the application is admitted, the person will receive the authorisation to access the country, and the rest of the asylum process will take place under the urgent procedure (see section on Regular Procedure: Fast-Track Processing).

Time limits

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 his or her asylum claim at the border (see Place of Detention).[14]

The 4-day initial term can be extended to 10 days in case UNHCR so requests, where the Ministry of Interior intends to declare the application inadmissible considering that the applicant falls under one of the reasons for exclusion or denial within the Asylum Act.[15]

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. In several rulings, the Court decided that these deadlines had to be computed as 96 hours from the moment the application is made,[16] and not in working days i.e. excluding weekends as the OAR had been doing since summer 2015. The situation prior to the ruling had led to longer periods of detention of asylum seekers in border facilities.

When these set time limits are not respected, the application will be channelled in the regular procedure and the person will be admitted to the territory. This situation has occurred frequently during 2017 and 2018 due to capacity shortages in OAR following the rise in asylum applications in Spain. Applicants were admitted to the territory with a document stating their intention to claim asylum once on Spanish territory, in case they were stopped by the police. This practice does not seem to have continued in 2019, however.

During 2017 and 2018, however, some cases were detected in the CIE of Valencia whereby the Ministry of Interior affirmed that the deadline provided by the Asylum Act for the border procedure did not apply to asylum applications lodged from CIE. This means that, in case the OAR did not provide a positive decision on the application within 4 days, the applicant kept being detained in the CIE instead of being released. The Ministry of Interior considered that in such cases the 1-month time limit foreseen for the regular procedure applied, instead of applying the mentioned 4-days-time limit provided for the border procedure. Already in 2017, the Spanish Ombudsman adopted a recommendation recalling to the Ministry of Interior the legal obligation to decide asylum applications lodged at borders and from CIE within 96 hours.[17] Such practices were not reported in 2019, however.

During 2017 there were also shortcomings concerning asylum claims made from airports, in particular Madrid Barajas Airport. The increase in the number of arrivals of asylum seekers during the summer, which saw applications quadrupling the number registered in 2016, caused the overcrowding and inadequate conditions of the border facilities at the airport and severe difficulties for the OAR and police to regularly register and process the admissibility of applications, often resulting in allowing entry into the territory before taking a decision on the application.[18] That said, the Ombudsman documented cases of persons who were kept in the airport facility longer than the prescribed time limit.[19] Such a situation has not been witnessed during 2018 nor in 2019.

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 has been highlighted by several organisations in Spain,[20] 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.[21]

Other concerns reported by the NGO CEAR in 2019 include the lack of access to legal assistance for people who arrived by sea as well as a lack of identification mechanisms of persons victims of human trafficking.[22]

 

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.[23] 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.

 

Appeal

 

Request for re-examination (re-examen)

The border procedure foresees the possibility to ask for the re-examination (re-examen) or petition of review of the asylum application when the latter has been denied or declared inadmissible. This procedure is not applicable to the other types of procedures. The petition for review has automatic suspensive effect and must be requested within 48 hours from the notification of the decision to the applicant.[24] The Audiencia Nacional has clarified that the time limit must be calculated by hours rather than working days.[25]

In May 2019, the Supreme Court provided clarity 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-days deadline starts at the moment of receipt by the competent authority of the request for re-examination.[26]

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). 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.

Since the increase in asylum applications in locations such as Madrid Barajas Airport in the summer of 2017, there have been deficiencies in the notification of negative decisions and the coordination of re-examination procedures, thereby posing obstacles to asylum seekers’ access to this remedy.[27] This situation has not been witnessed in 2018 nor in 2019.

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 to avoid the removal of the applicant.

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

 

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.[28] The Audiencia Nacional held at the end of 2017 that the mandatory nature of legal assistance at the border entails an obligation to offer legal aid to the applicant for the purpose of lodging the application, even if he or she does not ask for it or rejects it.[29]

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.[30] Obviously, during these illegal operations that do not assess on a case-by-case the need of international protection of the person, 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, are victims thereof.

As discussed in Access to the Territory, obstacles to effective legal assistance in points of disembarkation have intensified in areas such as Almería, Tarifa and Motril in 2017. Access to legal assistance has improved, with some Bar Associations issuing specific guidance in this regard.

On the other hand, the increase in applications made in Madrid Barajas Airport in 2017 created confusion and lack of coordination in the appointment of legal representatives to asylum seekers, while the legal aid option chosen by the asylum seeker is not verified.[31] Such problems have not been reported during 2018 nor in 2019. The main concerns relate to private lawyers, especially as regards 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 4 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.

 


[1]  See e.g. Audiencia Nacional, Decision SAN 1908/2019, 23 May 2019; SAN 1282/2019, 13 February 2019.

[2]  Audiencia Nacional, Decision SAN 1780/2017, 24 April 2017. 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.

[3] Ministry of Interior, Avance de solicitudes 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/er4cnOb.

[4] 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.

[5] Articles 21 and 25 Asylum Act.

[6] 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.

[7] Eurostat, Asylum and first time asylum applicants by citizenship, age and sex Annual aggregated data (rounded)[migr_asyappctza], available at: https://bit.ly/2NJCQxp.

[8] Information provided by OAR, 8 March 2019.

[9] CEAR, La odisea de solicitar asilo en fronteras españolas, 15 October 2019, available in Spanish at: https://cutt.ly/re9LVs0.

[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] Ombudsman, Recomendacion 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 fronteriz, 7 October 2015, available in Spanish at: http://bit.ly/1QCeRaH.

[15] Article 21(3) Asylum Act.

[16] Audiencia Nacional, Decision SAN 66/2017, 24 January 2017; Audiencia Nacional, Decision SAN 2366/2017, 5 June 2017; Supreme Court, Decision STS 498/2017, 16 February 2017.

[17]Ombudsman, Solicitudes de asilo en frontera, Resolución en plazo, 21 December 2017, available in Spanish at: https://bit.ly/2TOFSlf.

[18] Madrid Bar Association and CEAR, ‘Comunicado conjunto del Colegio y la Comisión Española de Ayuda al Refugiado sobre la situación de los solicitantes de asilo en Barajas’, 11 September 2017, available in Spanish at: https://goo.gl/QpbDJL.

[19]Ombudsman, ‘El Defensor del Pueblo inspecciona la sala de asilo del aeropuerto de Barajas para conocer la situación de un grupo de saharauis’, 31 August 2017, available in Spanish at: http://bit.ly/2rFUmdI.

[20] CEAR, Las personas refugiadas en España y Europa 2015, Capítulo IV: La admisión a trámite, available at: http://bit.ly/1JZFqai.

[21] Supreme Court, Decision 4359/2012, 22 November 2013, available in Spanish at: http://bit.ly/21zAFty.

[22] CEAR, La odisea de solicitar asilo en fronteras españolas, 15 October 2019, available in Spanish at: https://cutt.ly/re9LVs0.

[23] Article 17 Asylum Act.

[24] Article 21(4) Asylum Act.

[25] Audiencia Nacional, Decision SAN 2591/2017, 8 June 2017; Decision SAN 2960/2017, 30 June 2017.

[26] Spanish Supreme Court, Decision STS 1682/2019, 27 May 2019, available in Spanish at: https://cutt.ly/he9AzAZ.

[27] Madrid Bar Association and CEAR, ‘Comunicado conjunto del Colegio y la Comisión Española de Ayuda al Refugiado sobre la situación de los solicitantes de asilo en Barajas’, 11 September 2017, available in Spanish at: https://goo.gl/QpbDJL.

[28] Article 16(2) Asylum Act, citing Article 21.

[29] Audiencia Nacional, Decision SAN 5389/2017, 28 December 2017.

[30] El Pais, ‘Why Spain is not an option for Syrian refugees seeking a new life’, 29 May 2015, available at: http://bit.ly/1Q8IUK7.See also ECtHR, N.D. and N.T. v. Spain, Applications No 8675/15 and 8697/15, Judgment of 3 October 2017.

[31] Madrid Bar Association and CEAR, ‘Comunicado conjunto del Colegio y la Comisión Española de Ayuda al Refugiado sobre la situación de los solicitantes de asilo en Barajas’, 11 September 2017, available in Spanish at: https://goo.gl/QpbDJL.

 

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