Regular procedure

Spain

Country Report: Regular procedure Last updated: 25/03/21

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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of asking for a response to the authority, as they risk receiving a denial and having reception conditions and benefits withdrawn.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 backlog of asylum applications in Spain has been an important concern in recent years. As stated by the Spanish Ombudsman in its 2019 Annual Report, the high number of pending cases accumulated over the years is due inter alia to the historical lack of human and material resources of the OAR and the very few measures adopted to tackle the issue.[3] Nevertheless, the Government announced that the Annual Budget of the Ministry of Interior would be doubled in 2021, so it remains to be seen if this will reduce the backlog of pending cases and accelerate the duration of the asylum process.[4] As indicated below, the number of pending cases rose from around 35,000 cases in 2017 to more than 111,740 cases in 2019:

Backlog of pending cases: 2017-2020
2017 2018 2019 2020
35,261 68,779 111,740 Not available

Source: OAR.

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 involved 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 based on nationality as well as the lack of a time limit to decide on asylum applications, which can take up to four years.[5]

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.[6]

In its 2020 annual report the NGO CEAR highlights the challenges faced by the Spanish asylum system, both in terms of access to the procedure and to reception.[7] It highlights the fact that 2019 was marked by a record in asylum applications and by major challenges in accessing the asylum procedure. The report 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] There was no follow-up on the bill as of February 2021, however.

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]

  • The application is manifestly well-founded;
  • The application was 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 safe country of origin and has the nationality of that country or, in case of statelessness has residence in the country;
  • The applicant applies after a period of one month, without justification; or
  • 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] More recent statistics were not available at the time of writing of this report

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.

The same disposition further provides that, when necessary, the authorities will take measures to provide an adequate treatment during the interview based on the gender of the asylum seeker or in case of the other circumstances foreseen in Article 46 of the Asylum Act (i.e. the applicant is a pregnant woman, a victim of trafficking, an unaccompanied child, asylum seekers with mental disabilities, etc.). As the Asylum Regulation has not been adopted so far, no other details are provided by law. In practice, gender issues are in general taken into consideration for asylum interviews (interviewer and interpreter) as far as possible, but the availability of interpreters depends on the city where the interview is being conducted. The asylum seeker can require gender issues are taken into consideration during asylum interviews as far as he/she is informed about such right he/she is entitled to.

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, but also for asylum claims lodged on the territory given the lack of capacity and resources of the OAR. 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, since March 2020 second interviews are not held because of COVID-19 circumstances.[19] Nevertheless interviews with the Social Work Units (UTS) are carried out by phone. The Ombudsman has already stated in 2016 that a mandatory second interview must always be held when the first one has not been conducted by an OAR caseworker.[20] 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.”[21]

These observations remained valid in 2020 since arrangements vary according to the province where the interview takes place. In its 2019 Annual Report, the Spanish Ombudsman reported that the conditions in which asylum interviews are carried out are one of the recurring reasons of complaints the body receives.[22] Considering that in most cases asylum interviews are carried out by police officers due to the serious shortcomings at the OAR, the Spanish Ombudsman urgently calls for the design of a compulsory and specialised training programme for interviewers. The lack of specialisation of a high number of police officers seriously compromises the quality and the guarantees of a fair asylum procedure.

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.

Following the COVID-19 outbreak in 2020, interpreting services were adapted accordingly, mainly through the increase in the use of technological tools (i.e. phone and programmes such as Meet, Zoom, Teams), with overall positive outcomes. Challenges arose in some cases, however, due to the difficulty for asylum seekers to access computers or the internet.

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 for the purpose of interpretation is rare, as it is usually carried out by phone. Video conferencing is used in the cases of asylum seekers who are in prison or in the case of applications made from the enclaves 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:

  • An administrative appeal for reversal (Recurso de reposición); or
  • 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.[24]

The first type of appeal should be submitted before the OAR under the Ministry of Interior, within 1 month from the notification of refusal.[25] 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 2020.

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.[26] 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,[27] the success rate of appeals is generally low. Statistics on the year 2020 were not available at the time of writing of this report. Nevertheless, according to the OAR’s Annual Report on 2019, only 7 appeals were upheld in 2019.[28] This refers both to administrative and judicial appeals, as a disaggregation is not available.

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),[29] 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.

When expressing his/her will to apply for international protection, and depending on where the person is applying for asylum, the applicant is informed about his/her right to free legal assistance during the procedure, about the possibility to be assisted by a lawyer from an NGO, from a Bar association or a private lawyer (generally paid), and the person is provided with the relevant contacts (i.e. NGOs working at local level and provincial Bar association). In many cases, it is the lawyer present at the reception facility that provides legal assistance to asylum seekers.

Legal assistance at first instance

In 2020, shortcomings in access to legal aid have persisted for persons arriving by sea. As mentioned in Access to the territory and push backs, in 2020 there was a general lack of legal assistance for migrants and refugees reaching the Canary Islands.[30]

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.[31] 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.[32]

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”.[33] 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.[34]

The OAR registered 12,722 requests for legal aid at first instance in 2017,[35] representing only 40% of the total number of people seeking asylum in Spain during that year. Figures for 2018,2019 and 2020 are not available.

Legal assistance in appeals

Legal aid is also foreseen for subsequent judicial reviews 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. Legal aid is generally granted during appeal proceedings 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]   Defensor del Pueblo, Informe Anual 2019. Volumen I – Informe de Gestión, 2020, available in Spanish at: https://cutt.ly/njaEHwL, 170.

[4] El Diario, ‘El presupuesto para resolver peticiones de asilo crece casi el doble ante el colapso del sistema’, 28 October 2020, available in Spanish at: https://cutt.ly/rjaKAEa.

[5] 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.

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

[7] CEAR, ‘Informe 2020: Las personas refugiadas en España y en Europa’, June 2020, available in Spanish at: https://cutt.ly/DjaHA18, 75.

[8] Ibid.

[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] OAR, Important notification, March 2020, available in Spanish at: https://cutt.ly/gtU1eKT.

[20] 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.

[21] Ibid.

[22] Defensor del Pueblo, Informe Anual 2019. Volumen I – Informe de Gestión, 2020, available in Spanish at: https://cutt.ly/njaEHwL, 170.

[23]  BOE, ‘Alzamiento de plazos procesales’,  available at: https://bit.ly/37q3rcS.

[24] Article 29(2) Asylum Act.

[25]  Article 29(1) Asylum Act.

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

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

[28] Oficina de Asilo y Refugio – OAR, ‘Asilo en cifras 2019’, July 2020, available at: https://bit.ly/3cfOSdB.

[29] Article 29(2) Asylum Act.

[30] Cadena Ser, La mayoría de los inmigrantes que llegan a Canarias en las últimas semanas no reciben asistencia jurídica, 11 November 2021, available in Spanish at: https://cutt.ly/rjknOYx.

[31] 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.

[32] 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.

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

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

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

[36] 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