General (scope, time limits)
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. There are no available statistics on the number of border procedures being applied at each of these locations. As long as the border procedure is pending, the applicant has not formally entered the Spanish territory, i.e. a fiction of non-entry applies. 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.
In 2020, a total of 1,704 persons applied at a border post or transit zone and 776 at CIEs. This marks a significant decrease compared to previous years, mainly due to the impact of COVID-19 and the difficulties to reach Spanish borders in practice. In 2019, the number of applications lodged at a border post reached 7,014 and 2,164 at a CIE; up from 6,518 (border posts) and 1,776 (CIEs) in 2018; and 6,148 and 1,379 respectively in 2017. This being said, the number of border procedures has remained relatively stable compared to the total number of applications, ranging from around 6,000 to 7,000 from 2017 to 2019. Border procedures represented around 6% of the total caseload of the Office for Asylum and Refuge (OAR) in 2019, compared to around 16% in 2016. This low number is indicative of the obstacles faced by asylum seekers in accessing the procedure at the border and the issues of push-backs (see Access to the territory and push backs).In 2019, for the first time, the Government had applied the border procedure to asylum seekers who had. However, this had been applied only to two collective jumps that occurred in Ceuta in 2019, while in Melilla the determination of the applicable procedure to such cases was arbitrary, i.e. the border and regular asylum procedure were applied arbitrary to the different persons. This practice has not been reported during 2020. This also likely to be due to the fact there were only a few attempts to jump over the fences due to the COVID 19 pandemic. As explained above, the Asylum Law foresees the application of the border procedure to asylum claims lodged at airports, maritime ports, land borders and expulsion centers (CIE), but it had never been applied before in such a situation.
It should also be noted that since January 2020, Spain started to require a transit visa for nationals originating from Yemen. In practice, this means that they cannot reach Spain by plane and that their application is likely to be processed at airports.
Grounds for applying the border procedure
The aim of the border procedure is to assess whether an application for international protection is admissible or inadmissible and whether the applicant should be granted access to the territory for the purpose of the asylum procedure. As provided in Article 20(1) of the Asylum Act, applications can be considered inadmissible on the following grounds:
- When another country is responsible under the Dublin III Regulation or pursuant to international conventions to which Spain is party;
- The applicant is recognised as a refugee and has the right to reside or to obtain international protection in another Member State;
- The applicant comes from a safe third country as established in Article 27 of Directive 2005/85/EC;
- The applicant has presented a subsequent application but with different personal data and there are no new relevant circumstances concerning his or her personal condition or the situation in his or her country of origin; or
- The applicant is a national of an EU Member State.
According to information shared by the Spanish authorities, the Dublin III Regulation is not applied in application lodged at Spanish border posts.
Nevertheless, 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:
- The facts exposed by the applicant do not have any relation with the recognition of the refugee status;
- The applicant comes from a Safe Third Country;
- The applicant falls under the criteria for denial or exclusion sent under Article 8, 9, 11 and 12 of Asylum Act;
- 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 inevitably involves an examination 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.
If the application is allowed, the person can enter the territory and the application is processed through an urgent procedure (3 months – see section on Regular Procedure: Fast-Track Processing) where the application has been lodged at a Detention centre for foreigners (CIE), and through the ordinary procedure (6 months) if the application has been lodged at a border post.
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. 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, 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. 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).
The 4-days time limit for the OAR to issue its decision can be extended to 10 days by the Ministry of Interior on the basis of a reasoned decision if UNHCR so requests. This applies to cases where the Ministry of Interior intends to reject the application from examination considering that the applicant falls under one of the reasons for exclusion or denial from protection within the Asylum Act.
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, 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.
The OAR has reported that the average of the length of the border procedure, including appeal proceedings, is 8 to 10 days. 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 and 2020, 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. Such practices were not reported in 2019 nor in 2020, however.
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, 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.
Up until 2018, the large majority of applicants channelled into the border procedure were granted access to the territory in order to carry out the asylum procedure. Nevertheless, there has been an important increase in inadmissibility decisions doubling from 1,317 in 2018 to 3,220 in 2019. Taking into consideration the number of third country nationals refused access to the territory at the Spanish external borders, which amounted to 493,455 cases in 2019, it can be concluded that access to the territory for the purpose of the asylum procedures remains very difficult in practice. Several Spanish organisations have denounced the low number of admissions in border procedures compared to the regular procedure. The Supreme Court also clarified that the inadmissibility can be decided only in consideration of formal and objective grounds, as opposed to an analysis and assessment of the specific elements and reasons that surround the asylum application.
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. 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.
Request for re-examination (re-examen)
The border procedure foresees the possibility to ask for the re-examination (re-examen) of the application for international protection when the latter has been declared inadmissible or rejected from examination (‘denegar la solicitud’). This type of administrative appeal is only foreseen in the context of border procedures. The request for re-examination has automatic suspensive effect and must be requested in front of the Minister of Interior within 2 days from the notification of the decision to the applicant. The National High Court has clarified that this time limit must be calculated in hours rather than in working days.
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.
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). However it is not possible to provide further clarifications on statements expressed in the application. 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.
Available figures on the requests for re-examination seem to indicate a low chance of success rate. Out of 2,856 requests for re-examination lodged in 2019, only 265 were successful, indicating a success rate of approximately 10%.Statistics on the year 2020 were not available at the time of writing of this report.
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.
Access to free legal assistance in the border procedure is mandatory and guaranteed by law. As opposed to the regular procedure, applicants for international protection are thus always assisted by a lawyer during their interviews with the border police and the OAR in the context of border procedures, as well as during appeal proceedings. The National High Court (Audiencia Nacional) further held 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 for international protection, even if he or she does not ask for it or rejects it. 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.
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. 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. In 2020, the increase of arrivals to the Canary Islands has posed many challenges in terms of legal assistance.
As regards the provision of legal assistance at Madrid Barajas Airport, the main concerns relate to private lawyers, i.e. 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 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.
Another important element to bear in mind relates to the absence of legal assistance at the external borders. This does not necessarily concern persons who have been channelled into the border procedure, but rather the thousands of persons who have no access thereto as they are being pushed-back and/or refused entry at the border. Concerns have been expressed in this regard by UNHCR, and in 2019 the NGO CEAR further highlighted the issue of the lack of legal assistance for people who arrived by sea. Legal assistance in this context is undermined by obstacles such as the lack of information for newly arrived persons and the lack of possibility to access a lawyer.
 See e.g. Audiencia Nacional, Decision SAN 1908/2019, 23 May 2019; SAN 1282/2019, 13 February 2019.
 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.
 Ministry of Interior, Avance de solicitudes de protección internacional: Datos provisionales acumulados entre el 1 de enero y el 31 de diciembre de 2020, available in Spanish at: https://bit.ly/3rWtboU.
 Articles 21 and 25 Asylum Act.
 Article 21(2)(b) Asylum Act.
 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.
Article 21(2) Asylum Act.
 Article 21(4) Asylum Act.
 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.
 Article 21(3) Asylum Act.
 Article 21(3) Asylum Act.
 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.
 Information provided by the OAR, 14 September 2020.
 Article 17 Asylum Act.
 Article 21(4) Asylum Act.
 Audiencia Nacional, Decision SAN 2591/2017, 8 June 2017; Decision SAN 2960/2017, 30 June 2017.
 Article 16(2) Asylum Act, citing Article 21.
 Audiencia Nacional, Decision SAN 5389/2017, 28 December 2017.
 Article 16(2) Asylum Act, citing Article 21.
 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.