Freedom of movement

Spain

Country Report: Freedom of movement Last updated: 30/11/20

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 cannot move around the territory unless he or she loses the right to reception within the public system[1].

Most of asylum seekers and refugees who are hosted in the official reception places live in Andalucía, followed by 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 there concern 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. Due to the interpretation that the administration gives to the special regime of the two autonomous cities, these 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, who are entitled to free of movement in the rest of the Spanish territory. These limitations are informally imposed on asylum seekers.

This limitation has been declared unlawful by Spanish courts, affirming the right to freedom of movement of all asylum seekers within the Spanish territory on more than 18 occasions since 2010.[2] Following on from established case law, the Superior Court (TSJ) of Madrid delivered three new interim measure orders in 2018, holding again once asylum seekers pass the admissibility phase, they must be considered as documented, and for this reason their freedom of movement cannot be restricted.[3] Until now, however, no measure has been taken regarding this issue.

In October 2018 the TSJ of Madrid issued a similar decision stating the same principle in relation to asylum seekers in Melilla. The Court stated that, according to the Spanish Constitution, asylum seekers in Melilla are entitled to the right to freedom of movement to the mainland, as that they hold the required documentation and their asylum application has been deemed admissible by the OAR.[4]  

A similar decision has been issued by the TSJ of Madrid on 5 November 2018. The Court ruled that, although the Schengen Code allows the Spanish police to carry out additional identification checks on individuals traveling from Ceuta and Melilla to the mainland, a foreign person in a regular situation in Spain cannot be denied the right to free movement across the Spanish territory.[5] The Court underlined that this is a right recognised both by the Immigration Law and the Asylum Law to persons whose asylum application has been admitted at first instance, as well as to those persons who have been granted the refugee status or the subsidiary protection.[6

The TSJ of Madrid issued another decision on 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.[7]

Although in recent year transfers to the peninsula have been sped up, the criteria applied by the competent authority are still not transparent and clear. There is evidence of nationality-based discrimination in the way transfers to the peninsula are handled, as transfers to the mainland from Ceuta are offered to nationals of Sub-Saharan countries who do not apply for asylum, whereas asylum seekers and nationals of countries such as Pakistan, Bangladesh and Sri Lanka may wait for more than a year in the enclave.[8]

In the meantime, applicants stay within the CETI, and they are not free to move outside the two cities; also due to their geographical location. This fact affects asylum claims made by potential applicants, as most informed persons will wait to be transferred to the peninsula as “economic migrants” and will lodge their asylum request from there in order to benefit from greater freedom of movement and not stay 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.[9] In 2018, the Ombudsman reiterated a recommendation for instructions authorising the transfer of asylum seekers to the mainland.[10]

In October 2019, the Supreme Court decided to finally establish jurisprudence on the issue. It will establish a list of criteria which determine whether asylum seekers are allowed to move freely from Ceuta and Melilla to the mainland and can thus enjoy the right to circulate across all the Spanish territory.[11]


[1]DGIAH, Reception Handbook, November 2018, F.5., 19.

[2]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.

[3] 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.

[4] TSJ Madrid, Decision 817/2018, available in Spanish at: https://bit.ly/2HiAswR.

[5] TSJ Madrid, Decision 841/2018, available in Spanish at: https://cutt.ly/frw0JYG.

[6] Servicio Jesuita a Migrantes, Nuevas sentencias favorables a la libre circulación de solicitantes de asilo documentados en Melilla, available in Spanish at: https://cutt.ly/7rw0NNQ.

[7] 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.

[8]CEAR, Refugiados y migrantes en España: Los muros invisibles tras la frontera sur, December 2017, available in Spanish at: http://bit.ly/2mEUPqH, 22-26.

[9] Ibid.

[10] Ombudsman, ‘Fernández Marugán visita Melilla y Ceuta para conocer de primera mano la realidad de estas dos ciudades’, 11 July 2018, available in Spanish at: https://bit.ly/2DhBsNU.

[11] Europapress, El TS decidirá si los solicitantes de asilo en Ceuta y Melilla pueden desplazarse a la península, 1 October 2019, available in Spanish at: https://cutt.ly/Grw05Ps.

 

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