Stateless people at the border: the scenario in Spain

Jesús Tolmo García, Visiting Researcher at the Institute on Statelessness and Inclusion (ISI) & PhD Candidate
/ 8 mins read

La versión en español de este blog está disponible aquí. 

In terms of support offered to stateless people, in many respects Spain has some of Europe’s good practice examples in place. However, there are notable gaps in the process and protection offered to stateless migrants and refugees who lodge applications at the Spanish border, as well as the contrasting treatment of applicants for asylum and statelessness status. The following piece gives a detailed overview of the needed reforms to ensure that stateless people in Spain access their fundamental rights.

Gran Canaria Airport, Spain by Yeray Sánchez via Unsplash.
Gran Canaria Airport, Spain by Yeray Sánchez via Unsplash.

Good practice so far

An examination of Spain’s current system for the protection of stateless people suggests a relatively positive scenario: a legal framework is in place for automatic acquisition of nationality at birth for children born in Spain who would otherwise be stateless. Furthermore, a fully-fledged statelessness determination procedure which ends with a residence permit is established. Since March this year, with the approval of the Royal Decree 220/2020, the rights stateless people with recognised status could  enjoy have been expanded to offer the possibility for applicants to also access the national reception system, including guaranteed access to education for child applicants and their inclusion in integration programmes.

Needed reforms

However, within the existing protection framework, it is necessary to highlight some of the existing challenges and gaps. These include non-compliance with Article 32 of the 1954 Convention which establishes facilitated access to nationality (in Spain this will require  reform of the Civil Code, which has not yet commenced despite the interest of the Subdirectorate General for Nationality and Civil Status in this regard); the need to incorporate additional and necessary procedural safeguards within the statelessness determination procedure; the establishment of provisions to guarantee access to a nationality for migrant and refugee children arriving in Spain at risk of statelessness; and enabled access to the labour market for applicants.

The case of stateless people at the border

In this piece, we will focus on the situation of stateless people at the border as a result of the National High Court's ruling of 18 March 2019. In October 2017, a Sahrawi person who had arrived in Madrid on a flight from Cuba requested international protection at Barajas Airport, which was denied a few days later. UNHCR, in its report issued within the administrative procedure (Art. 35 Asylum Law), requested the referral of the applicant to the statelessness procedure in application of Article 2.2 of R.D. 865/2001, which regulates the statelessness determination procedure. This article regulates the initiation automatically (ex officio) of the procedure by the Asylum and Refugee Office (OAR) when it becomes aware of facts, data or information indicating the possible existence of circumstances determining statelessness. 

In its decision, the OAR denied the application without examining the possible statelessness of the applicant. Upon appeal before the Audiencia Nacional, the Court partially upheld the claim, ordering the initiation of the statelessness proceedings.

This judgment, appealed by the State before the Supreme Court, was confirmed by another judgment of 23 July 2020, which considered the need to establish jurisprudence on "whether the initiation of the procedure for the recognition of statelessness status requires the interested party to be in the national territory or whether, as the appealed judgment states, it is sufficient for the interested party to be at a border post".

On this question, the Court stated that the initiation ex officio of the procedure is mandatory when during an international protection application, a situation of statelessness comes to light, regardless of whether the applicant is situated on Spanish territory or at a border post. But the Chamber did not stop there in its reasoning. It also elaborated that in the same circumstances, it may also be initiated at the request of the concerned party, without Spanish legislation impeding it from being conducted at the border.

This interpretation of the Supreme Court notably reinforces the protection of stateless people by making it possible for this to be applied at the border and serves as a reminder to the OAR that the initiation ex officio of the procedure and, therefore, the recognition and protection of stateless persons, is not a matter of will or discretion, but is an imperative. While this ruling is a positive development for the protection of stateless people, there have been significant obstacles to its implementation in practice.

Challenges in practice

An instructive example of the gaps in practice is the judgment of the Audiencia Nacional of 12 May 2021. In this case, the Sahrawi applicant,  resident in Spain since at least 2008, requested international protection while in prison for a criminal offence before the possibility of being returned at the end of their sentence. The application was rejected by the OAR. In the appeal before the National High Court, his defence argued in the first place that the administration is obliged "to initiate ex officio a statelessness procedure", and subsidiarily to grant asylum, international protection or residence for humanitarian reasons. However, the Chamber modified the order of the petitions to analyse first the circumstances related to asylum, international protection and humanitarian reasons and then analysed the circumstances related to statelessness, having already rejected the first three options.

Lodging a statelessness claim alongside an asylum claim

While in the end the Court ordered the OAR to initiate the statelessness determination procedure, the reading of the judgment leaves the impression that statelessness is understood by the Court as a sort of subsidiary remedy to be analysed and applied when there are no other forms of international protection available. This reasoning is clearly worrying. It is necessary to recall that both are different forms of protection, in some cases complementary, but never subsidiary. Hence, whenever the applicant or the administration considers that the applicant’s situation falls under both conditions, two separate applications should be submitted. In this way, both conditions can be recognised in their corresponding decisions, or one of them, as appropriate, processed in parallel to one another, extending and respecting the principle of confidentiality also to the statelessness determination procedure, as recommended in UNHCR's Handbook on protection of stateless persons (para. 78 and 79) that “there may be instances where refugee status ceases without the person having acquired a nationality, necessitating then international protection as a stateless person”.

When examining how the doctrine established by the Supreme Court on applications at the border is being implemented, it is worth reviewing the resolutions of the National High Court of 26 February 2021 and 9 March 2021. While similar to the aforementioned case of  18 March 2019, these judgments offer less cause for optimism. In these judgments, the interim measure requesting authorised entry into the Spanish territory was denied until the sentence of the judicial appeal against the refusal of asylum or the administrative decision granting statelessness status were pronounced. In light of this decision, the applicants were returned to their country of origin (i.e. the country their flight departed from) after the rejection of the application for international protection made at the border, while the application for statelessness was still pending.

The Court’s reasoning can be considered reasonable from a strictly technical point of view, as in their opinion that the existing resolution which can be suspended only refers to the refusal of international protection and is unrelated to the statelessness case. Nevertheless, OAR's actions deserve severe criticism.

Shortcomings of OAR’s actions

It is necessary to recall, on the one hand, the aforementioned Handbook on protection of stateless persons, which establish that "[t]o ensure that procedures are fair and efficient, States are advised to refrain from expelling an individual from their territory pending the outcome of the determination process" (para. 72).

In addition, the regulation of the procedure itself doubtless requires the presence of the concerned party throughout the procedure. Thus, to be initiated ex officio, the person must be duly informed, with the emphasis on "duly" because it implies the personal and immediate act of informing in a complete, sufficient and comprehensible manner, in which he or she is also given the opportunity to present allegations (art. 2.2). Besides, through the proceeding, the regulation establishes:

(a) the possibility of authorising the temporary stay of the applicant on national territory, and the transit zones are part of the territory of the State where they are located (art. 5),

(b) the applicant’s duty to cooperate with the OAR through the proceeding (art. 5), c) the duty to cooperate fully during the investigation (Art. 7.2),

(c) the possibility of an interview (Art. 7.4) and finally, d) to provide evidence and arguments during the procedure (Arts. 8 and 9). Hence, it is difficult to understand how the procedure can be made fair, effective and streamlined in the absence of the person of concern.

In addition, it should not be forgotten that the interpretation of the set of regulations and case law must aim to make it possible to exercise the rights recognised both in the rules of procedure and in the 1954 Convention itself. As instruments for the protection of human beings, their provisions must be interpreted and applied in such a way that their guarantees are practical and effective for the purpose for which they are intended: the protection of stateless persons.

Further, following the approval of the aforementioned RD 220/2022 which establishes access to the international protection reception system for applicants for statelessness status until the application is resolved, it is difficult to understand how these rights can be enjoyed if those applicants at the border who, prima facie, present evidence that could lead to the recognition of statelessness status are not allowed to remain in the national territory. It should be recalled that statelessness is per se a human rights problem, which goes beyond a mere technical issue and deserves a proper and appropriate response from the State.

In conclusion, much has been achieved thanks to the efforts of UNHCR, civil society and legal practitioners who have put knowledge, commitment and effort into this matter. However, there is still room for improvement.  It is essential to continue dedicating efforts to raising awareness and training on statelessness among the different actors involved in the protection of stateless persons, from the judiciary and administration to the lawyers who work admirably on issues of migration and international protection.

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