Author
The right to family unity is established in Articles 39-41 of the Asylum Act. The law reflects two aspects which add to and comply with this right: “Extension” of the international protection status of the beneficiary to their family (Extensión familiar del derecho de asilo o de la protección subsidiaria),[1] and “Family reunification” (Reagrupación familiar).[2] The applicant can opt for any of these, except for cases where the family has different nationality. In these cases, it will be mandatory to opt for family reunification.
Reunification can apply also for families created post-flight from the country of origin, especially if they have children, even though the assessment of the case and documentation is stricter. Spanish law does not establish a legal time limit for the administration to decide, and in practice the procedure lasts more than 9 months.
Regarding legal remedies foreseen in case of a negative decision, both an appeal before an administrative body and a judicial appeal are possible. In practice, there are difficulties to access such remedies, as in many cases there are challenges in obtaining the written decision of denial (i.e. long waiting time), which is necessary to lodge the appeal.
Free legal aid is foreseen. According to a new instruction adopted by the MISSM at the beginning of 2023 which provides for new rules on reception conditions, in order to benefit from economic support, the applicant has to be within the asylum reception system.
The procedure is initiated by the beneficiary of international protection and has to be presented at the OAR. The application for visa for family reunification at embassies or consulates does not entail the payment of any fee. In case of absence of travel documents, the Government usually issues a laissez-passer.
In June 2022, the ECtHR issued a decision striking out of its list of cases the application of a mother that claimed a violation of the right to family life and lack of effective remedy, due to the delay in the family reunification with his son after arriving in Spain. After she lodged her application, she did reunite with her son before the Court could rule on the case. For this reason, the Court considered that the reunification of the child with the applicant constitutes an adequate remedy under Article 8 of the Convention.[3]
Family extension
The “extension” applies to:[4]
- First degree ascendants that prove dependence;
- Descendants who are minors;
- Spouse or person who is linked by analogous relationship or cohabitation;
- Any other adult who is responsible for the beneficiary of international protection in accordance with current Spanish legislation, when the beneficiary is an unmarried minor;
- Other family members of a beneficiary, in cases where dependence and cohabitation with these individuals in the country of origin has been proved.
Even though not foreseen by law, same sex couples follow within this disposition: the difficulty in practice is to prove the relationship with appropriate documentation.
As the extension is attached to the main norm on beneficiaries established by the Asylum Act, there are no distinctions between refugees and subsidiary protection beneficiaries when it comes to setting requirements for extension.
When referring to the extension of international protection of the beneficiary to those relatives who are ascendants, the original Asylum Act did not establish economic dependence requirements from the sponsor, although the law was amended in 2014 to include the requirement of economic dependence.[5] Therefore, the requisite threshold is to prove that the ascendant depends economically on the beneficiary of international protection.
The requirements are: birth certificates, family book, family passbooks or other similar documents existing in the origin country. In addition, the initial information recorded in the asylum application, as well as the declarations presented during the asylum procedures and, if existing, photos, are also used as a proof for the family extension procedure and taken into consideration. DNA testing is also used to prove family links. In principle, is the same applicant who has to pay for the test, even though economic support can exist, for example by the NGOs managing reception facilities.
Such requirements apply also for family ties formed during the journey if the persons reached Spain together. On the contrary, it is necessary to follow the same procedure for proving the family ties foreseen for the other cases.
A major difficulty faced in practice is the certification and proof of dependence in the cases of ascendants of beneficiaries of international protection, which becomes especially burdensome in the case of Syrian nationals.
Regarding extension of the international protection of the beneficiary to those relatives who are descendants, the only requirement set to the beneficiary of protection is to prove family ties. There is no economic requirement established for the individual who benefits from protection.
In relation to the extension of the international protection of the beneficiary to other family members, the requisite conditions established by law are economic dependence and previous cohabitation in the country of origin. If both aspects are not proved, the “extension” is not granted.
As to economic dependence, the law does not establish a clear criterion. In practice, concessions are given as long as the beneficiary of protection sends money to the family which is in the country of origin. This, however, is a major problem for countries in conflict where money transfers is not possible.
One of the main problems in practice concerns children who are over 18 but depend on the beneficiary of protection. These are normally cases of 19 or 20-year-olds who still live in the family unit together with underage siblings. In these cases, extension is granted to underage children but is denied to those who are over 18, thereby breaking not respecting the principle of family unit, and leaving these individuals in a vulnerable situation in their countries of origin.
In addition, problems arise when trying to reunite minors who are dependent on the beneficiary of protection but are not their children (nephews / nieces, underage siblings etc.), who also conform the family unit. In these cases, we come across the same problem of family separation as mentioned before.
In order to improve the situation and to properly assess the family reunification procedures, the Forum for the Social Integration of Migrants recommended to establish uniform criteria for demonstrating family links, as well as the dependency or existence of previous cohabitation, and to adapt them to the socio-cultural realities of countries of origin and/or countries of residence of family members, as well as to their security conditions.[6]
Recently, the procedure for the family extension and reunification was slightly changed and simplified, so family members residing in another country have to go to the Spanish Embassy or Consulate just when they are convened to carry out a concrete formality related to the application.[7]
Family reunification (only in law)
The concept of family reunification is established by law as an alternative to “extension” except in cases involving different nationalities of spouses, in which it is compulsory.[8]
Article 41 of the Asylum Act establishes that neither refugees or beneficiaries of subsidiary protection nor beneficiaries of family reunification will be subject to the requirements established in the Aliens Act, but will be subject to specific rules defined through a Regulation. Nevertheless, the establishment of these requirements and duties is still pending since 2009, which means that all applications for family reunification have been on hold and waiting to be resolved since October 2009, even though in practice these applications are decided upon, despite the lack of formal rules on the procedure.
This is particularly concerning for the cases of family members who have different nationality than the sponsor beneficiaries of protection, because the compulsory application of the family reunification excludes them from “extension” and leaves them with no other option. In these particular cases, applicants are prevented from exercising their right to maintain their family unit.
However, a judgment of the Audiencia Nacional at the end of 2017 recognised a Palestinian refugee’s right to family reunification with her 71-year-old Syrian mother under the family reunification provisions of the Asylum Act. Importantly, the Audiencia Nacional states that whilst Article 41(2) does refer to an implementing regulation, the provision itself contains a sufficiently detailed regulation, almost analogous to that contained in Article 40, which makes it perfectly applicable in practice. The judgment also highlighted the favourable report issued by UNHCR supporting the case, on the basis of the fundamental right to family unity of refugees.[9] Following this decision, the OAR finally reunited some mixed families (e.g. Palestinians and Syrians).
Following a recommendation of the Spanish Ombudsperson at the beginning of 2019, the OAR decided that it would apply effectively and without delay family reunification procedures to married couples in which one of the partners already holds a refugee status or the subsidiary protection.[10]
Procedure
The procedure starts with the presentation of a report to the OAR, which has to be complemented by the following documents:
- Copy of the card which certifies the person as beneficiary of extension;
- Copy of the resolution where international protection is granted;
- Copy of the documentation which certifies and proves family ties;
- In the case of parents: birth certificate of children and family book;
- In the case of siblings: birth certificate of the corresponding siblings and family book;
- Copy of the documentation which proves that the applicant and his family cohabited together in the country of origin and was dependent on them;
- Copy of each family member’s passport;
- In the cases of spouses of siblings, marriage certificate;
- Report where the applicant provides a verbal account and description of the family situation.
It is also necessary to choose the consulate where the applicant wants to submit the extension application to be formalised in and leave contact details.
The OAR sends a letter to the applicant and with it, the family members are able to formalise the application in the Spanish consulate they have chosen. Family members formalise the application of family extension in the consulate of choice by presenting originals of all the documents required. Following this, the consulate sends all the documentation to the OAR and the application is studied. The instructor gives CIAR the proposal for resolution. Lastly, CIAR gives a final resolution to the case, if it is positive, it will be communicated to the consulate and the visas are issued accordingly.
The OAR received 410 applications for family extension with a beneficiary of international protection in 2021,[11] and 762 in 2022.
In 2021 the Ministry of Interior issued a note on family extension and reunification establishing that, when family members are in the country of origin, the beneficiary of international protection in Spain has to begin the procedure.[12]
As highlighted by the 2023 EUAA Asylum report, UNHCR expressed concerns about the long processing times for family reunification in Spain, considering that the procedure could take more than 18 months, as it involves a complex procedure with several authorities. The organisation also observed that beneficiaries usually received very little information on the status of their request.[13]
[1] Article 40 Asylum Act.
[2] Article 41 Asylum Act.
[3] European Court of Human Rights, Decision, Requête no 74048/17, Bahoumou Totopa contre l’Espagne, 2 June 2022, available in French at: https://bit.ly/43qkBCB.
[4] Article 40(1)(a)-(d) Asylum Act.
[5] Final Provision 3 Law 2/2014 of 25 March 2014.
[6] The Forum for the Social Integration of Migrants (Foro para la Integración Social de los Inmigrantes) is foreseen by Article 70 of the Alien Act and it is a consulative, information and counselling body about the integration of migrants in Spain (http://www.foroinmigracion.es/).
[7] Ministerio del Interior, ‘Solicitudes de extensión o reagrupación familiar por parte de un beneficiario de protección internacional a familiares residentes fuera de España’, available in Spanish at: https://bit.ly/3BkSIy0.
[8] Article 41(1) Asylum Act.
[9] Audiencia Nacional, Decision SAN 5372/2017, 15 December 2017.
[10] Defensor del Pueblo, ‘La Oficina de Asilo y Refugio se compromete a aplicar la reagrupación familiar en los matrimonios mixtos “sin dilación” tras aceptar una recomendación del Defensor del Pueblo’, 1 February 2019, available in Spanish at: https://cutt.ly/SrcUdUv.
[11] Ministerio del Interior, Subsecretaría del Interior – Dirección General de Política Interior, ‘AVANCE de solicitudes y propuestas de resolución de protección internacional Datos provisionales acumulados entre el 1 de enero y el 31 de diciembre de 2022’, January 2023, available in Spanish at: https://bit.ly/3wunyCU.
[12] Ministerio del Interior, ‘Solicitudes de extensión o reagrupación familiar por parte de un beneficiario de protección internacional a familiares residentes fuera de España’, 2021, available in Spanish at: https://bit.ly/3mtvuCV.
[13] EUAA, Asylum report 2023, July 2023, available in Spanish at: https://bit.ly/3PAlFOb, 259.