Regular procedure

Spain

Country Report: Regular procedure Last updated: 30/11/20

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General (scope, time limits)

 

The Asylum Act provides that, where applicants do not receive a final notification on the response to their first instance asylum claim after 6 months, the application will have to be considered rejected.[1] In practice, many applications last much longer than 6 months. In these cases, an automatic notification of denial is usually not provided by the OAR and applicants prefer to wait until the final decision instead of asking a response to the authority, as they risk receiving a denial and having reception conditions and benefits withdrawn. If the applicant so wishes, however, he or she can lodge a judicial appeal when no response on the asylum claim is provided in time.

The duration of the asylum process varies a lot depending on the nationality of applicants, and can last from 3 months to 2 years, and can even reach 3 years in certain cases. For example, in 2018, the average duration of the procedure was 288 days for Syrians, 505 days for Afghans and 633 days for Iraqis. The overall average processing time in 2018 was reported at 473 days.[2]

In early 2017, UNHCR Spain declared that the Spanish government had a backlog of pending cases reaching 19,000 asylum claims, presented in the past years mainly from nationals of Ukraine, Venezuela, Syria, Nigeria and Mali.[3] The number of pending cases rose from 35,261 at the end of 2017 to 68,779 at the end of 2018, mainly concerning nationals of Venezuela.[4] This number was multiplied by more than1.5 times as the number of cases pending a decision reached 111,740 at the end of 2019. An additional 10,643 cases were waiting to be admitted.[5]

In November 2019, a platform (PlatRefugio) formed by 15 NGOs launched a report on the human rights situation in the Spanish asylum system. The report has been drafted in view of the Universal Periodic Review of the UN Human Rights Council that will involve Spain in 2020. The publication denounces the serious and several shortcomings that the Spanish asylum system presents. In particular, the platform underlines that the lack of a Regulation of the Asylum Act generates a situation of juridical uncertainty for asylum seekers. It also denounces the practice of push-backs which impedes the access to the procedure for many persons. It further highlights that, even when a person can apply for asylum, the rights provided by law are not guaranteed in practice (i.e. right to information, to an interpreter, to reception, to privacy, etc.). Regarding the asylum procedure, the report condemns the practice of granting asylum according to nationality as well as the lack of a time limit to decide on asylum applications, which can take up to four years.[6]       

Moreover, a report published by CIDOB (Barcelona Centre for International Affairs) in March 2019 underlines the deficiencies of the Spanish asylum system, such as its rigidity and inability to adapt to the different situations and especially to the vulnerabilities of asylum seekers. It also criticises the fact the, when the asylum application exponentially increased in Spain, the reception system has been adapted spontaneously to the situation, without any long or mid-term planning.[7]   

Despite acknowledging the improvements made by the Government, in its 2019 annual report the NGO CEAR highlights the challenges still faced by the reception system for asylum seekers, as well as those existing for accessing the asylum procedure. It also expresses concerns regarding the high number of pending cases.[8]

In February 2020, the Spanish Government announced that it is working on a new asylum law that will introduce restrictions to the right to asylum, in line with EU trends and policies. The proposed amendments include the possibility to introduce a deadline for the lodging of an application for international protection; or similarly to introduce a 10-days deadline for persons detained in CIEs to apply for asylum as they are informed of their right to asylum etc.[9] The opposition party “Unidas Podemos” challenged the proposal.[10]

 

Prioritised examination and fast-track processing

 

Article 25 of the Asylum Act lays down the urgent procedure, a prioritised procedure whereby the application will be examined under the same procedural guarantees as the regular procedure, but within a time limit of 3 months instead of 6 months.[11]

The urgent procedure is applicable in the following circumstances:[12]

  1. The application is manifestly well-founded;
  2. The application was made by a person with special needs, especially unaccompanied minors;
  3. The applicant raises only issues which have no connection with the examination of the requirements for recognition of refugee status or subsidiary protection;
  4. The applicant comes from a safe country of origin and has the nationality of that country or, in case of statelessness has residence in the country;
  5. The applicant applies after a period of one month, without justification; or
  6. The applicant falls within any of the exclusion grounds under the Asylum Act.

The urgent procedure is also applied to applicants who have been admitted to the in-merit procedure after lodging a claim at the border or within the CIE.[13] 2,182 applications were processed under the urgent procedure in 2018.[14]

The authority in charge of the asylum decision is the Ministry of Interior, like all the other asylum procedures in Spain. CIAR, which is responsible for the case examination, will be informed of the urgency of the cases.[15]

 

Personal interview

 

Article 17 of the Asylum Act states that asylum applications are formalised by the conduct of a personal interview, which will always be conducted individually. This legislative provision is respected in practice, as all asylum seekers are interviewed.[16] The law also provides the possibility of carrying out other interviews with the applicant after the initial one foreseen for the formalisation of the asylum claim. These interviews can take place any time during the procedure after the claim is declared admissible.

When applicants go to their registration appointment with the OAR, they undergo a first interview, with or without a lawyer, given that the assistance of a lawyer is mandatory only for applications lodged at borders and CIE. The interview is held in private offices which generally fulfil adequate standards with regard to privacy and confidentiality, but this situation can vary from one region to another.

The interview is not carried out by the case examiners but rather the auxiliary personnel, using documents prepared by the case examiner. The Ombudsman reports that the documents contain the questions which the official must take into account during the interview. The purpose of these questions is to detect fraudulent applications, and instructions are included for the case in which it is required to pass the nationality test to prove the country of origin of the applicant in case doubts exist.[17]

Police and border guards also have the competence of registering asylum applications, for which in these cases they are the authority in charge of conducting the asylum interview. This mostly happens to asylum claims made at borders and from the CIE. They do not decide on the application for international protection, however, as this is the sole responsibility of the OAR.

When the case is then forwarded to the OAR for examination, the caseworker in charge may decide to hold a second interview with the applicant when he or she considers the information in the case file to be insufficient.[18] The case examination reports do not systematically make reference to whether or not a second interview is necessary, although the law states that the decision to hold further interviews must be reasoned. However, second interviews are still held in a very small percentage of cases as of 2019.The Ombudsman has already stated in 2016 that mandatory second interview must always be held when the first one has not been conducted by an OAR caseworker.[19] This was recommended by the Ombudsman who argued as follows:

“The profile of the interviewer differs depending on the location where the application is lodged, the quality of the interview therefore varies greatly depending on who carried it out. At the international airports and at the border control posts, the interview is conducted by police officers; in prisons, it is conducted by the prison’s own staff; in Ceuta, the interviews for the applications lodged inside the territory come under the authority of a Government Delegation official. The interviews for the applications lodged within the territory of Melilla are conducted by an officer from the Central Police Headquarters; and in Valencia and Catalonia, the interview is usually conducted at the immigration affairs offices. The interviews conducted with persons who are prison facility inmates are usually conducted by a person of the technical team at the prison facility and are conducted on the basis of a questionnaire furnished by the Asylum and Refugee Office. In this case, generally speaking, the person who conducts the interview does not usually have enough training to carry it out, it therefore being considered that a second interview on the part of the case examiner through the use of technologies allowing for this possibility without any need of travel should be mandatory.”[20]

These observations remained valid in 2018 and 2019, since arrangements vary according to the province where the interview takes place. As regards the possibility to ask the interviewer and/or interpreter to be of a particular gender in accordance with the recast Asylum Procedures Directive, this can be requested by asylum seekers and/or their lawyers. In practice, the authorities try to comply with these obligations, but the availability of interpreters depends on the city where the interview is being conducted.

Interpretation

Article 18 of the Asylum Act provides the right of all asylum seekers to have an interpreter. This is respected in practice.

Since June 2016, the Ministry of Interior has changed subcontractors for the provision of interpreters to the OAR and all police offices that register asylum applications in the Spanish territory, for which NGOs do not provide services anymore. The contract was awarded to the Ofilingua translation private company. Since then, several shortcomings have been reported, mainly due to the lack of knowledge of the asylum and migration field. In addition, a lack of proper expertise in interpretation techniques has been detected in many cases. It is thus common for some interpreters to make personal comments going beyond their interpretation role in front of the interviewer and with the risk of including subjective considerations in the asylum interview. There are also interpreters who do not speak adequate Spanish, so in many circumstances the statements made by the asylum seeker are not properly reflected in the interview. In addition, interpreters who were working before with NGOs have reported a reduction of pay and deterioration of working conditions, thereby potentially affecting the quality of their work. As previously mentioned, following the jump over the Ceuta fence at the end of August 2019, shortcomings in finding interpreters for asylum interviews have been reported.  

In cases of less common languages, asylum interviews are postponed and the concerned asylum seeker is not informed in advance but only on the day of the cancelled interview. In some cases, interpretation during asylum interviews has been carried out by phone, because the company did not consider arranging the deployment of the interpreter from his or her city to the place of the interview. Since the beginning of the EU relocation scheme running between 2015 and 2017, asylum seekers from Greece and Italy’s hotpots have been transferred to Spain. The process has brought to Spain nationalities of asylum seekers who cannot count on a community in the country, such as Iraqis, Kurds and Eritreans. Due to the absence of a sizeable community, there have been many difficulties in finding interpreters who speak Tigrinya, Pashtu or Sorani. This fact has caused many shortcomings and obstacles not only to asylum authorities but also to NGOs providing services and accommodation to asylum seekers. These difficulties were resolved in 2017, but some provinces can still face delays in having interpreters of such languages available on time and when needed.

Due to this, sometimes lawyers and asylum seekers are asked to move from the place they are to the closest place where interpretation can be provided, which was usually not done under the precedent interpretation service.

Video conferencing is rare, although it is used in the cases of asylum seekers who are in prison or in the case of applications made from the enclave of Melilla or Ceuta.

Recording and transcript

While the first interview is never audio-or video recorded, this is always the case for the second interview. As a rule, the minutes of the interview are transcribed verbatim, although there have been cases in which interviews were not transcribed verbatim or in which a summary was drafted without necessarily reflecting all the statements made by the asylum seeker, no particular issues have been raised regarding the transcription of interviews. It should be further noted that interviewers are allowed to assess whether or not certain issues expressed by the asylum seeker during the interview should be included to the transcript, which is thus completely arbitrary.

 

Appeal

 

First appeal before the National Court

When the asylum applicant wants to appeal against the first instance decision, there are two types of appeals he or she can lodge:

  1. An administrative appeal for reversal (Recurso de reposición); or
  2. A judicial appeal before the National Court (Audiencia Nacional).

None of the appeals have automatic suspensive effect, and none of them foresee a hearing of the applicant.[21]

The first type of appeal should be submitted before the OAR under the Ministry of Interior, within 1 month from the notification of refusal.[22] It marks the end to the administrative procedure, and therefore it is optional as the lawyer can appeal directly to the courts. This first option for appealing is based on points of law and does not assess the facts. For this reason, the applicant and his or her lawyer may prefer to file the contentious administrative appeal. In practice, the administrative appeal for reversal continued to be applied in 2019.

An appeal against a negative decision on the merits of the claim can be filed before the Administrative Chamber of the High National Court (Audiencia Nacional) within 2 months term from the notification of the asylum denial.[23] This appeal is not limited to points of law but also extends to the facts, therefore the Court may re-examine evidence submitted at first instance. If the Court finds that the applicant should be granted protection it has the power to grant itself the protection status to the applicant and it is not necessary to return the case to the Ministry for review.

Decisions of the Audiencia Nacional are publicly available in the CENDOJ database.

Nonetheless, it should be kept in mind that there is no deadline for the Court to decide, and that the average time for ruling is from 1 to 2 years. During this period, if the applicant has expired it maximum duration within the asylum reception system (18 months), the person will have no reception conditions.

For this reason, most of the applicants and their lawyers prefer to collect more documentation to support the asylum application, in order to start a new asylum claim from stretch. In fact, the Asylum Act does not set a limit number of asylum applications per person, and as mentioned in the section on Subsequent Applications, it does not establish a specific procedure for subsequent applications.

Although statistics on appeals are not available,[24] the success rate of appeals is generally low.

Onward appeal before the Supreme Court

In case of a rejection of the appeal, a further onward appeal is possible before the Supreme Court (Tribunal Supremo),[25] which in case of a positive finding has the power to grant the applicant with an international protection status.

 

Legal assistance

 

Spanish legislation and Article 18(1)(b) of the Asylum Act guarantee the right to legal assistance to asylum seekers from the beginning and throughout all stages of the procedure. This assistance will be provided free of charge to those who lack sufficient financial means to cover it, both in the administrative procedure and the potential judicial proceedings. It is also established that NGOs can provide legal assistance to asylum seekers. In addition, they can play a consultative role in the determination procedure by submitting written reports on individual cases.

Legal assistance at first instance

In 2018, shortcomings in access to legal aid have persisted for persons arriving by sea. In order to guarantee asylum seekers’ rights, some Bar Associations from the southern cities of Andalucía have created ad hoc teams of lawyers. Nonetheless, assistance has been undermined by obstacles such as the lack of information on asylum to newly arrived persons and the lack of possibility to access a lawyer (see Access to the Territory).  The CATE and CAED facilities established for newly arrived persons in 2018 have not resulted in improvements in this regard, although in the CAED operated by CEAR asylum seekers are reported to receive legal assistance.

In May 2019, the Spanish Ombudsman admitted a complaint lodged by the Spanish General Bar Council (Consejo General de la Abogacía Española) regarding the difficulties that lawyers are facing in the provision of legal assistance to persons reaching illegally Spanish shores.[26] The General Bar Council raised several issues, including the violation of the right of defence of asylum seekers. This mainly results from the inadequacy of facilities to carry out preparatory, individualised and private interviews with asylum seekers as well as the lack of interpreters, thus preventing the possibility for them to be interviewed in their mother tongue. The Spanish General Bar Council thus drafted a Protocol on the provision of legal assistance to persons arriving to Spain by sea in June 2019, with the aim to provide guidance to lawyers offering legal assistance to asylum seekers arriving to the Spanish shores.[27]

In September 2015, the Spanish General Bar Council had already launched a Register of pro bono immigration and asylum lawyers which would be made available to the Spanish and EU authorities to address legal aid of potential refugees.

The Supreme Court has highlighted the obligation of the State to provide effective access to legal assistance during the procedure, without which the individual is in a state of “real and effective helplessness, which is aggravated in the case of foreigners who are not familiar with the language and Spanish law, and which may have annulling effect on administrative acts”.[28] Beyond merely informing applicants of the possibility to receive legal aid, the authorities are required to indicate in the case file whether the asylum seeker has accepted or rejected legal aid in the procedure.[29]

The OAR registered 12,722 requests for legal aid at first instance in 2017,[30] representing only 40% of the total number of people seeking asylum in Spain during that year. Figures for 2018 and 2019 are not available.

Legal assistance in appeals

Legal aid is also contemplated for the subsequent judicial review and appeal procedures. Free legal aid for litigation must be requested through the Bar Association Legal Assistance Service (Servicio de Orientación Jurídica del Colegio de Abogados) or through NGOs specialised in asylum.

The Audiencia Nacional has clarified that deadlines for appealing a negative decision are suspended pending the outcome of a legal aid application. The asylum seeker must also be duly notified of the outcome of the legal aid request.[31] Legal aid is generally granted in appeals in practice.

The Bar Association of Madrid has a specialised roster of lawyers taking up asylum cases. While this bar association generally represents most appeals lodged in any part of Spain, other bar associations have also organised similar rosters since 2015.

The level of financial compensation awarded to legal aid lawyers is established by each bar association. It does not differ based on the type of cases – asylum-related or other – taken up by lawyers.

 


[1]Article 24(3) Asylum Act.

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

[3]Publico, ‘España acumula 19.000 peticiones de asilo sin resolver, según ACNUR’, 10 January 2017, available in Spanish at: https://goo.gl/We8Gbp.

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

[5]  Ministry of Interior, Statistics, available in Spanish at: https://bit.ly/3abJ3uy.

[6] El Salto, ‘El Estado español incumple sus compromisos en materia de protección internacional’, 17 November 2019, available in Spanish at: https://cutt.ly/JtYbtHm; El País, ‘Los derechos de los refugiados en España, a examen’, 14 November 2019, available at: https://cutt.ly/BtYbdpe; Info Libre, ‘El sistema de acogida en España, una carrera de obstáculos’, 14 November 2019, available at: https://cutt.ly/KtYbxZJ.

[7] CIDOB, ‘Ser o no ser. Deficiencias del sistema estatal de acogida’, March 2019, available at: https://cutt.ly/NtUPbqA.

[8] CEAR, ‘Informe 2019: Las personas refugiadas en España y en Europa’, June 2019, available in Spanish at: https://cutt.ly/ptUAX5f.

[9]El País, ‘España endurecerá el derecho al asilo’, 19 February 2020, available at: https://cutt.ly/GtwAL0U.

[10] Lavarguandia, ‘Podemos impugna la idea de Marlaska de endurecer el asilo’, 19 February 2020, available in Spanish at: https://bit.ly/2JMSmq6.

[11] Article 25(4) Asylum Act.

[12] Article 25(1) Asylum Act.

[13] Article 25(2) Asylum Act.

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

[15] Article 25(3) Asylum Act.

[16] Information provided by OAR, 2 March 2018.

[17] Ombudsman, El asilo en España: La protección internacional y los recursos del sistema de acogida, June 2016, available in Spanish at: http://bit.ly/2n88SpE.

[18] Article 17(8) Asylum Act.

[19] Ombudsman, El asilo en España: La protección internacional y los recursos del sistema de acogida, June 2016, available in Spanish at: http://bit.ly/2n88SpE.

[20] Ibid.

[21] Article 29(2) Asylum Act.

[22] Article 29(1) Asylum Act.

[23] Article 29(2) Asylum Act; Article 46 Law 29/1998 of 13 July 1998 concerning the regulation of jurisdiction of administrative courts.

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

[25]Article 29(2) Asylum Act.

[26]Defensor del Pueblo, El Defensor admite una queja de la abogacía sobre las dificultades que tienen para prestar asistencia a las personas que llegan a las costas en situación irregular, 31 May 2019, available in Spanish at: https://cutt.ly/JeXjewp.

[27] Consejo General Abogacía Española, La Abogacía Española impulsa un Protocolo de actuación letrada para entradas de personas extranjeras por vía marítima, 20 June 2019, available in Spanish at: https://cutt.ly/QeXj645.

[28]Supreme Court, Decision STS 3186/2013, 17 June 2013, available in Spanish at: http://bit.ly/2n8tDAJ.

[29] Supreme Court, Decision STS 4316/2015, 19 October 2015, available in Spanish at: http://bit.ly/2DB9y16.

[30] Information provided by OAR, 2 March 2018.

[31] Audiencia Nacional, Decision SAN 3274/2017, 21 July 2017, available in Spanish at: http://bit.ly/2n8b5Rf.

 

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