Criteria and conditions

Spain

Country Report: Criteria and conditions Last updated: 25/03/21

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 his or her 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.

It should be noted that, during COVID-19, family reunification procedures were suspended from mid-March until beginning of May 2020. They were resumed after the lockdown and the ease of measures started.

Family extension

The “extension” applies to:[3]

  • 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.

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.[4] Therefore, the requisite threshold is to prove that the ascendant depends economically on the beneficiary of international protection.

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 not possible.

One of the main problems in practice concerns sons / daughters 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 nucleus next to underage siblings. In these cases, extension is granted to underage sons / daughters but is denied to overage children, thereby breaking the nuclear family and consequently 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 who are not children but 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.[5] It further recommended to adapt such criteria to the socio-cultural realities of countries of origin and/or countries of residence of family members, as well as to their security conditions. It is also deemed necessary to establish in advance the criteria on the cases that require the necessity to carry out DNA tests (i.e. nationality, lack of identity documents, lack of documentation on the family relationship, etc.), in order to speed-up the procedure.[6] These recommendations do not seem to have been implemented as of 2020, however, as far as the author of this report is aware.

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.[7]

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.

This situation is extremely serious 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 the UNHCR supporting the case, on the basis of the fundamental right to family unity of refugees.[8] Following this decision, the OAR finally reunited some mixed families (e.g. Palestinians and Syrians).

A few cases of family reunification have been witnessed throughout 2019, but they cannot be categorised as such because of technical problems of the database used by the police to issue residence permits.  These issues were resolved in 2020 and persons obtained their residence permits accordingly.

Following a recommendation of the Spanish Ombudsman 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.[9]

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 had dependence on him or her;
  • 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 formalize 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 269 applications for family extension with a beneficiary of international protection in 2018,[10] and 431 in 2019.[11]

 

[1] Article 40 Asylum Act.

[2] Article 41 Asylum Act.

[3]  Article 40(1)(a)-(d) Asylum Act.

[4]  Final Provision 3 Law 2/2014 of 25 March 2014.

[5] 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/). 

[6] Foro para la Integración Social de los Inmigrantes, ‘Informe bianual sobre la situación de la integración de los inmigrantes y refugiados en España – 2018-2019’, January 2020, available in Spanish at: https://cutt.ly/ntR4nDC, 25.

[7]  Article 41(1) Asylum Act.

[8] Audiencia Nacional, Decision SAN 5372/2017, 15 December 2017.

[9] 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 at: https://cutt.ly/SrcUdUv.

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

[11] Oficina de Asilo y Refugio – OAR, ‘Asilo en cifras 2019’, July 2020, available at: https://bit.ly/2OkZQ9h.

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