Freedom of movement

Spain

Country Report: Freedom of movement Last updated: 25/03/21

Author

In the Spanish system, asylum seekers are placed in the reception place which better fits their profile and necessities. A case by case assessment is made by the NGOs and/or by the Social Work Unit (Unidad de Trabajo Social, UTS), the unit in charge of referring asylum seekers to available reception facilities. The UTS falls under the Ministry of Inclusion, Social Security and Migration and is based at the OAR. After assessing the availability of reception spaces and the integral features of the applicant (age, sex, household, nationality, existence of family networks, maintenance, personal necessities, presumed trafficked person or a vulnerable woman, etc.), if feasible, the person is placed in the place that best responds to his or her needs. This placement is done informally as a matter of administrative practice, without a formal decision being issued to the asylum seeker. Once the applicant is given a place within the reception system, he or she must remain in the same province.[1] Most of asylum seekers and refugees who are hosted in the official reception places live in Andalucía, Madrid and Catalonia.

 

Normally asylum seekers do not move within the Spanish territory, as they do not have many reasons for moving throughout the territory since they are placed with family members or close to any contact they have in the country. The situation is different in cases of family members who arrive separately to the Spanish territory or in the asylum reception system. Difficulties may arise in the possibility for family members to join each other, particularly when they are in different phases of the three-stage asylum reception process (see Criteria and Restrictions to Access Reception Conditions). In this case, there are obstacles to being hosted together (e.g. administrative burden, lack of capacity in certain centres etc.).

A special case worth mentioning is the situation of asylum seekers that have made their asylum claim in Ceuta or Melilla. As a result of the special regime applied by the authorities to these two autonomous cities, applicants have to wait for the decision regarding the admissibility of their claim in order to be transferred to the Spanish peninsula and its asylum reception system, together with an authorisation issued by the National Police allowing them to be transferred to the mainland. Limitations are also applied to asylum applicants who pass the admissibility phase, and should be entitled to free of movement in the rest of the Spanish territory. These limitations are informally imposed on asylum seekers.

As documented in the previous updates of this report, there has been extensive case law and litigation on the matter in recent years, with various Spanish courts regularly recognising the right to freedom of movement of asylum seekers.[2] By way of illustration, the limitation to the right to freedom of movement across Spanish territory has been declared unlawful by Spanish courts in more than 18 cases from 2018 to 2020. [3] More recently, the TSJ of Madrid issued a decision in January 2020 according to which a restriction to access all the Spanish territory has no legal basis. Thus, a red card indicating ‘valid only in Melilla’ is illegal.[4]

In practice, however, the authorities continued to restrict asylum seekers’ access to the mainland up until 2020.  This means that applicants must stay within the CETI, and that they are not free to move outside the two enclaves. This also encourages potential asylum seekers to wait before lodging their asylum claim, as persons may prefer to wait to be transferred to the peninsula as “economic migrants” and lodge their application for international protection on mainland in order to benefit from a greater freedom of movement and avoid staying confined within the two enclaves. There is a general lack of transparency concerning the criteria followed by the CETI for transferring people to the Spanish peninsula, which has been repeatedly denounced and criticised by human rights organisations.

In two landmark decisions issued in July 2020, the Supreme Court (Tribunal Supremo) concluded that neither domestic nor EU law contain any provisions that justify limiting asylum seekers’ right to move freely across Spanish territory.[5] Thus, the judgement explicitly recognises the right to free movement of asylum seekers from Ceuta and Melilla and declares the practice of the Ministry of Interior unlawful.

However, the implementation of the ruling in practice remains contested. In August 2020, many asylum seekers in Ceuta protested as they were not able to leave Ceuta, thereby demonstrating that the Supreme Court’s judgment was not being applied in practice.[6] The Ministry of Interior reportedly increased its requirements to allow transfers to the mainland, e.g. by asking asylum seekers to demonstrate that they can rely on someone on the mainland to provide housing and support. This affected around 100 asylum seekers.[7] In October 2020 a Yemeni asylum seeker, trapped in Melilla for around a year, was denied access to a boat from the enclave to mainland.[8] The Jesuit Migrant Service also denounced in its last report of December 2020 that the police has continued to impede embarkation of asylum seekers in Melilla.[9]

These issues also occurred on the Canary Islands and in February 2021 the Spanish Ombudsman reminded the Ministry of Interior its duty to ensure asylum seekers’ freedom of movement within the national territory.[10] He addressed “a reminder of legal duty” to the Directorate General of the Police, pointing to “its legal duty to prevent any limitation of the fundamental rights to free movement and residence of applicants for international protection who wish to move from the autonomous cities of Ceuta and Melilla or from the autonomous community of the Canary Islands to the mainland”. The reminder responds to a complaint raised in early 2020 following the prevention of departure to the mainland of an asylum seeker in Gran Canaria. The Spanish Ombudsman also asked the National Police to provide information on the reasons to block migrants from reaching the Canary Islands as well as the impossibility to access flights and boats to mainland, even for persons holding identification documents and passports.[11]

In February 2021, the Supreme Court (Tribunal Supremo) established again the right to free movement of asylum seekers from Melilla, in a case brought by the Jesuit Migrant Service.[12] In light of that, the NGO called the General-Commissariat for Foreigners and Borders of the National Police to fully recognise the fundamental right of asylum seekers to freely move from Ceuta and Melilla, and complained about the restrictions imposed by the Police on this right.[13]

 

 

[1] DGIAH, Reception Handbook, June 2020, J.3., p. 21.

[2] TSJ Madrid, Order 197/2018, 19 June 2018, available in Spanish at: https://bit.ly/2SZXJFq; Order 196/2018, 19 June 2018, available in Spanish at: https://bit.ly/2DjocIE; Order 276/2018, 27 June 2018, available at: https://bit.ly/2CuK8i9; TSJ Madrid, Decision 817/2018, available in Spanish at: https://bit.ly/2HiAswR; TSJ Madrid, Decision 841/2018, available in Spanish at: https://cutt.ly/frw0JYG.

[3]CEAR, ‘Nuevo fallo judicial a favor de la libre circulación de solicitantes de asilo en Ceuta’, 11 July 2018, available in Spanish at: https://bit.ly/2ucgxqz.

[4] Tribunal Superior de Justicia de Madrid, Decision nº 26/2020, 14 January 2020, available in Spanish at: https://cutt.ly/ztYVMc0; Servicio Jesuita a Migrantes, ‘La inscripción “Válido solo en Melilla” de la tarjeta roja de solicitantes de asilo es contraria a derecho’, 6 March 2020, available in Spanish at: https://cutt.ly/itYV9AH.

[5]Tribunal Supremo, Sala de lo Contencioso, STS 2497/2020, 29 July 2020, available in Spanish at: https://bit.ly/3bBeLWw and Tribunal Supremo, Sala de lo Contencioso, STS 2662/2020, 29 July 2020, available in Spanish at: https://bit.ly/2N6iqBt.

[6] El Faro de Ceuta, ‘Ceuta: donde la sentencias del Supremo no afectan si eres migrante’, 19 August 2020, available in Spanish at: https://bit.ly/3bDCvJy; Ceuta Tv, ‘Varios inmigrantes se concentran frente a Delegación del Gobierno’, 19 August 2020, available in Spanish at: https://bit.ly/3icPG5k.

[7] El Pueblo de Ceuta, ‘Interior impone nuevos requisitos para salir de Ceuta a los inmigrantes con solicitudes de asilo en trámite’, 20 August 2020, available in Spanish at: https://bit.ly/2XGs0Nu; Ceuta al Día, ‘Las autoridades ignoran la sentencia del Supremo y ponen condiciones a la salida de solicitantes de asilo’, 19 August 2020, available in Spanish at: https://bit.ly/35IRHRM.

[8] El Diario, ‘Atrapados en Melilla en contra de la sentencia del Supremo: “Si no me dejan salir, prefiero volver a la guerra de Yemen”, 30 October 2020, available in Spanish at: https://bit.ly/2LQys1O.

[9] Servicio Jesuita a Migrantes, Buscar salida. Informe Frontera Sur 2020, 18 December 2020, available in Spanish at: https://bit.ly/3qcFigW, 45.

[10] ECRE, ‘Atlantic Route: Ombudsman Demands Free Movement for Asylum Seekers, Investigations into Possible Hate Crimes, Covid Outbreak in Reception Centre’, 5 February 2021, available at: https://bit.ly/2LteWso.

[11] La Provincia, ‘El Defensor del Pueblo pide explicaciones al supuesto bloqueo de migrantes en Canarias’, 12 February 2021, available in Spanish at: https://bit.ly/3aqPf5o.

[12] Tribuanl Supremo, Sala de lo Contencioso-Administrativo, Decision nº 173/2021, 10 February 2021, available in Spanish at: https://bit.ly/3qpUOqa.

[13] Servicio Jesuita a Migrantes, ‘El Tribunal Supremo resuelve por segunda vez que las personas solicitantes de asilo tienen derecho a una libre circulación desde Melilla a península, en un caso promovido por SJM’, 15 February 2021, available in Spanish at: https://bit.ly/3dmt41W.

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