Reform Past Due: COVID-19 Magnifies Need to Improve Spain’s Asylum System

By Daphne Panayotatos | July 27, 2020

Introduction

Nearly six months after the World Health Organization declared the coronavirus outbreak a pandemic, European countries are assessing the initial impact and planning a recovery. In Spain, COVID-19’s rapid spread quickly overwhelmed healthcare providers. Government measures to contain the virus ground the economy to a halt, forcing individuals to stay home and foreigners to stay away. As in other parts of the world, refugees and asylum seekers have been among those most severely affected. Even positive steps taken to mitigate the pandemic’s harmful effects laid bare shortcomings in Spain’s asylum system.

Indeed, the coronavirus arrived as Spain grapples with another challenge: increasing numbers of people seeking refuge. A “frontline” country of the European Union (EU), Spain manages multiple borders on its mainland, islands, and overseas enclaves. Its geography and history draw individuals from distinct parts of the globe seeking safety and opportunity. However, not all have an equal chance of finding refuge. Reports of authorities using aggressive border tactics to keep away people arriving from northern Africa stand in stark contrast to special temporary legal protections the government has extended to forced migrants from Venezuela. Overall, practical and policy measures are closing the space for asylum, mirroring a concerning, broader trend in Europe. Meanwhile, Spain’s capacity to process claims and attend to asylum seekers is growing increasingly strained.

Spain must continue to take efforts to protect refugees and asylum seekers in the midst of the public health crisis. The government must understand the new challenges they face even as it corrects pre-existing weaknesses in its asylum system. Only then can Spain ensure adequate protection and respect for the rights of all asylum seekers during and long after the crisis.

Background

The toll of the coronavirus

The coronavirus rapidly took a significant toll in Spain. The first case of COVID-19 was confirmed in January 2020 and the first related death confirmed in early March. Prime Minister Pedro Sánchez declared a state of emergency on March 14, 2020. He ordered a nationwide lockdown initially set for 15 days and re-introduced control of Spain’s internal EU borders. On March 22, Spain closed its external borders.

The lockdown was highly restrictive and strongly enforced. The government suspended all economic activity except limited essential services and ordered residents to stay home. Nevertheless, by March 25, 2020, Spain became the latest coronavirus “hot spot,” overtaking China and Italy as the most affected country at the time. Even after the government requisitioned private healthcare facilities to source supplies and treat coronavirus patients, hospitals faced severe shortages of essential equipment.

By July 20, 2020, Spain had confirmed 260,255 cases of COVID-19 and 28,420 related deaths. The government had extended the state of emergency six times, only lifting some restrictions in mid-April. As the initial wave of infections seemed to pass, officials became eager to restart the economy, which the European Commission predicts will shrink by 10.9 percent this year—the second largest contraction in the EU. The government ended the national state of emergency on June 21, 2020 and had reopened borders to travelers from all EU and Schengen countries and 21 third countries by July 4, 2020. However, after a new spike in cases in the northeastern region of Catalonia in mid-July, local authorities re-introduced several restrictions. The government hopes to avoid a full lockdown and continue cautiously re-opening.

Asylum Seekers in Spain

One country, many borders

In 2019, Spain was the third largest recipient of asylum seekers in the EU, behind Germany and France. Its population of asylum seekers had grown tremendously—up to more than 118,000 applicants from about 55,000 applicants in 2018. By early 2020, a sustained increase in arrivals made Spain the top destination for asylum seekers in the EU.

Spain is unique for its many borders, which give asylum seekers several means of accessing its territory. Some with financial means can fly to Spain. Indeed, an increase in applicants from Venezuela (35 percent of applicants) and Colombia (25 percent) largely explains the dramatic rise in asylum seekers from 2018 to 2019. They take advantage of flexible visa arrangements to enter Spain as tourists and apply for asylum once there. However, individuals of certain nationalities—including Syrians, Palestinians, and Yemenis—must obtain an Airport Transit Visa (ATV) in their country of origin before flying to Spain. The associated costs and administrative requirements of doing so make this option prohibitive for many.

Others enter by land from northern Africa. The Spanish enclaves of Ceuta and Melilla form the EU’s only land borders with Africa, lying on Morocco’s northern Mediterranean coast. The Spanish government has heavily fortified the fenced-off border and, following a surge of arrivals in 2018, intensified cooperation with Moroccan authorities to prevent irregular migration. Human rights groups report authorities’ use of excessive force in pushing back people attempting to cross the border. Authorities have also conducted summary expulsions, or “hot returns”, by which they directly deport individuals who do manage to cross.

By blocking or returning people without conducting any credible process to determine if they require international protection, these practices deny individuals their right to asylum. They violate central tenets of regional and international law, including the principle of non-refoulement, which prohibits governments from returning asylum seekers to a country where they fear persecution. Their effectiveness as deterrence measures is also limited—individuals continue to attempt the crossing.

Finally, asylum seekers can reach Spain via several sea routes. Some approach Ceuta and Melilla this way. Others take the western Mediterranean route from northern Africa through the Straits of Gibraltar or the Alborán Sea to Andalusia—a southern region on the Spanish mainland—or to the Balearic Islands off Spain’s eastern coast. Still others travel from northwest Africa to the Canary Islands, a Spanish archipelago in the Atlantic Ocean. Spain’s efforts to crack down on arrivals from Morocco—as well as EU-supported efforts to restrict asylum seekers’ access to Greece and Italy—have increased flows along the Atlantic route. In 2019, the number of arrivals to the Canary Islands reached 2,698—more than double the number in 2018. The trend continued in 2020, when more than 1,000 refugees and migrants reached the Canary Islands in the first six weeks of the year—about 15 times the number in the same period in 2019.

Individuals face extreme danger trying to reach Spain by sea. In mid-February 2020 alone, search and rescue organizations reported more than 100 people rescued, missing, or dead after at least five boats went into distress en route to the Canary Islands. According to the UN Refugee Agency (UNHCR), 511 of the 1,336 people estimated to have died or gone missing crossing the Mediterranean in 2019 (38 percent) were en route to Spain.[1] Although that figure represents a drop from 2018, the International Organization for Migration (IOM) warns that an increase in the number of “ghost boats”—“vessels reported missing en route to Europe for which no hard evidence can be found”—means that the actual number of deaths is likely to be higher. Already in the first half of 2020, UNHCR estimates that 339 individuals have died or gone missing along the Mediterranean routes, even in the midst of the pandemic. Moreover, reports of routine pushbacks, detentions, and deportations at Spain’s shores again show that even those who do manage to reach Spanish territory may not be able to request asylum.

Asylum profiles

The various migratory routes to Spain make it a common destination for “mixed migratory flows,” which include refugees, asylum seekers, economic migrants, and other types of migrants. Spanish authorities defend hardline border tactics as being targeted at economic migrants trying to circumvent the migration system. In truth, there is no objective line between economic migrants and forcibly displaced persons. More importantly, authorities cannot base their enforcement actions on assumptions about the reasons why people have fled. All individuals must be able to request asylum and access safeguards while their individual circumstances are properly reviewed.

An Inter-Ministerial Commission on Asylum (CIAR, for its Spanish acronym) is responsible for that review. UNHCR also reviews all applications and makes a recommendation to the CIAR. Refugee status determinations are made on the basis of the 1951 UN Refugee Convention. That agreement narrowly defines a refugee in a way that excludes many people fleeing grave circumstances. However, governments have considerable latitude in extending special forms of protection. For example, EU law allows governments to grant subsidiary protection[2] to non-EU nationals who do not qualify as refugees but have a credible fear of facing serious harm if they return to their country of origin. Both refugee status and subsidiary protection confer a five-year residence permit, after which time an individual can apply for long-term residency.

In Spain, the recognition rate for these two groups is very low. In 2019, the CIAR granted just 5.2 percent of applicants either refugee status (2.7 percent) or subsidiary protection status (2.5 percent). By comparison, the average recognition rate among EU states is 31 percent. Of those who received positive decisions, the top country of origin was Syria.

Notably, Spain granted “authorization to remain for humanitarian reasons”[3] to about 66 percent of all asylum applicants in 2019. About 99 percent of them—totaling nearly 40,000—were Venezuelan. In fact, authorities granted humanitarian protection to about 99 percent of Venezuelan applicants. Unlike the longer-term protections offered by refugee and subsidiary protection status, humanitarian protection allows residency for just one year, but is renewable.

The Asylum System

Requesting asylum

Individuals seeking international protection in Spain must first state and register their intention to apply for asylum. Authorities conduct an initial interview to determine if an application is admissible or if it falls outside of the Spanish authorities’ jurisdiction. If deemed admissible, the CIAR then conducts its review of the merits of the claim, deciding what type of protection—if any—the applicant will receive.

The exact way and timing with which this process plays out depends on how and where an individual enters Spain. Under the “regular procedure,” those who are already on Spanish territory—such as Venezuelans who arrive on tourist visas—have one month from the time they enter the country to submit an asylum application. They can do so at an Office of Asylum and Refuge (OAR) or a police station. Authorities have one month to determine if the claim is admissible, after which the CIAR has six months to make its decision.

In reality, authorities typically take up to two years to make a decision because the system is overwhelmed. In addition, differences in processing times and quality of services result from the disparate capacities of Spain’s 17 autonomous regions. In some areas, delays in scheduling preliminary interviews and formalizing applications mean it can take months just to register one’s intention to apply for asylum—a process that, per EU law, should only take several days. Until they can formally register their applications and receive identifying documentation, individuals remain at risk of deportation and unable to access essential services. The government has expanded the number of police stations and asylum offices where individuals can request asylum and be interviewed. However, NGOs warn that police officers are often not adequately trained to conduct interviews and that long delays continue in some areas.

Alternatively, individuals arriving at the Spanish border or detained in one of Spain’s eight Foreigners Detention Centers (CIE)[4] can request asylum under the “urgent” or “border procedures.” Border authorities have four days to decide if a claim made there is admissible. In the CIE, individuals remain detained while their application is considered but can only be held for eight days. If applications are deemed admissible, the CIAR has three months to decide whether and what kind of protection to grant.

In practice, CIE detainees face more burdensome administrative requirements and lack legal assistance, making it more difficult to apply for asylum. The problem is significant because, according to reports by NGOs and the Spanish Ombudsman, authorities carry out detention in an arbitrary and discriminatory fashion, without due consideration of individuals’ circumstances. This means that people who entered or are found living in Spain irregularly may be in CIEs despite having genuine claims to asylum. The lack of transparency and access to CIEs for NGOs not only makes it difficult to independently monitor conditions there, but prevents them from providing detainees information about the asylum process and legal support.

Individuals who manage to cross the border into Ceuta and Melilla or reach Spanish territory by sea also have more difficulty requesting asylum. In the former case, those who cross are placed in Centers for Temporary Stay of Immigrants (CETI). They face detention-like conditions and have limited access to information about the asylum system. People who arrive by sea to Andalusia, the Canary Islands, or the Balearic Islands are automatically detained for 72 hours before authorities deport them; place them in a CIE; or refer them to a dedicated humanitarian assistance program for accommodation. In 2018, the government responded to a surge in sea arrivals by building new facilities for initial detentions (police-run Centers for the Temporary Assistance of Foreigners, CATE) and humanitarian assistance (NGO-run Centers for Emergency Assistance and Referral, CAED). However, human rights groups report dire conditions in the CATE and the need for clearer regulations around management of the CAED.

The accommodation & integration system

When an asylum seeker’s application is deemed admissible, they receive a “red card” authorizing them to stay in Spain while the CIAR conducts its review. If they are still awaiting a decision after six months, they must renew the card, at which time they are authorized to work. Universal access to the public healthcare system means that asylum seekers—as well as irregular migrants—can also seek medical care.

Asylum seekers without financial means to support themselves have access to a National Accommodation and Integration System managed by the Director General for Inclusion and Humanitarian Assistance (DGIAH for its Spanish acronym). Unlike the Office of Asylum and Refuge, which sits under the Ministry of the Interior, the DGIAH is housed in the Ministry of Inclusion, Social Security and Migration (MISSM). The program provides shelter and social services to asylum seekers while their cases are decided. Beneficiaries receive information about the asylum process; financial assistance to cover basic needs; psychosocial care; and integration support, including cultural orientation, language classes, and job training.

In the “temporary reception” program of the first phase, the MISSM places applicants in state-run Refugee Reception Centers (CAR) or designated NGO-run facilities for six months. In the second “preparation for autonomy” phase, individuals move into private housing but continue receiving financial aid to pay rent, as well as integration support, until their cases are decided.

Unfortunately, there are several reasons why many asylum seekers do not benefit from this system. First is a lack of capacity. Government efforts to create spaces and raise budgets to subsidize NGOs helped increase the number of available spots from 4,000 in December 2016 to 9,000 in December 2019. However, with the number of asylum seekers requesting support from the system doubling from 2018 to 2019, a sizeable gap remains. In 2019, the average wait time to be assigned accommodation reached six months.

In addition, individuals who have relatives or friends already in Spain may want to choose where they live—they may not want to risk the possibility that the DGIAH will assign them to a faraway site. Their inability to work legally during the first six months—and the difficulty of finding a job even afterwards—leaves many living in inadequate conditions or on the street. Others may be able to afford rent or stay with relatives but miss out on the language courses, job trainings, and other valuable integration services that the system provides.

Indeed, many who are left out of the accommodation system or do not receive adequate financial assistance from it experience poverty and face obstacles to accessing basic rights and essential services. Among them are some of the most vulnerable, including victims of human trafficking and unaccompanied minors. NGOs argue that authorities fail to quickly and properly identify vulnerable applicants who should receive special protections within the accommodation and integration system.

As with other aspects of the asylum process, accommodation and integration support differs for asylum seekers who enter in Ceuta and Melilla or reach Spain by sea. The CETI and CAED that serve as first-reception centers do not offer the same level of care and services that mainland accommodation centers do. Asylum seekers there cannot access the formal accommodation system until and unless they are transferred to the mainland.

COVID-19’s Impact on Asylum in Spain

Spain’s response to the pandemic has had a direct impact on the asylum process and on asylum seekers’ experiences in Spain. Some policies to contain the spread of the virus have reduced individuals’ access to asylum and assistance. Others have had secondary effects on asylum seekers’ wellbeing, exacerbating challenges they already faced. Although the government has taken several positive steps to mitigate some of the harmful effects, significant gaps remain in its response.

A closing space for asylum — access to territory denied

Data from Spain demonstrates the significant impact that pandemic-driven border closures have had on individuals’ search for safety. In early 2020, Spain received 3,500 asylum applications per week, contributing to levels higher than the EU+ region[5] had seen in two years. Venezuelans and Colombians remained the top applicants. However, after a dramatic reversal in March 2020, the total number of asylum applications from January 1 to May 31, 2020 was ultimately down 20 percent compared to the same period in 2019.

With flights grounded, arrivals from Latin America were “almost negligible”. Instead, most arrivals since March have been from North Africa. Of the 7,828 refugees and migrants who arrived in Spain as of June 14, 2020, more than 80 percent went by sea. Notably, despite the overall decrease in arrivals, the number in the Canary Islands increased sharply.

Although Spain’s closed border policy allows exceptions for those requesting entry on “humanitarian” grounds, it does not clearly define those and grants no permissions for individuals seeking international protection. The Spanish government suspended many direct asylum procedures during the lockdown, making it impossible for anyone who does enter Spain to apply for protection. Meanwhile, border authorities can return people entering the country irregularly or process their eventual return if not immediately possible. This throws into question the government’s commitment to non-refoulement during the state of emergency, since individuals may be deported without having the chance to register their asylum claim. NGOs have denounced border authorities’ actions in this regard.

Asylum procedures interrupted

In addition to suspending the ability to apply for asylum, the Office of Asylum and Refuge (OAR) cancelled interviews for those in Spain who had already submitted claims. It instructed applicants to request new interview appointments once operations resumed. The OAR did continue to issue decisions on completed applications, in line with guidelines that the European Commission and UNHCR each issued for states to sustain asylum procedures during the pandemic. Given global travel restrictions, the government also postponed returns for individuals whose protection requests were denied.

Spain also extended administrative deadlines for individuals to request and submit applications and automatically extended the validity of documents expiring during the state of emergency. These measures were critical for ensuring that no asylum seeker would lose their legal status and thus risk detention or deportation. However, the unpredictable nature of the pandemic and timeline for resuming normal operations create great uncertainty for individuals caught up in the system. Asylum authorities must be careful to set realistic new deadlines and accommodate individuals’ circumstances to ensure that asylum seekers and refugees who are unable to complete the process or renew their documents in a timely manner do not find themselves in an irregular situation.

Detention

Laudably, the Spanish government moved quickly to end immigration detention during the pandemic. Responding to calls from civil society and the Spanish Ombudsman, the Ministry of the Interior announced on March 18, 2020 that it would release all detainees who could not be returned to their countries of origin. Given worldwide travel restrictions, this opened the door for all detainees. By May 6, the CIEs were empty. Individuals were released to stay with relatives, if possible, or referred to the accommodation system. However, discussions with various stakeholders reveal differing assessments of the support the government has provided to former detainees. Ensuring continuity of care for these newly released and vulnerable individuals in the context of greater demand on public systems will be a challenge moving forward.

The government’s decision effectively acknowledged the long-standing problems with immigration detention. Inadequate infrastructure, poor sanitary conditions, overcrowding, and limited access to health, information, and other basic needs are particularly dangerous during a pandemic, when they facilitate disease transmission. However, they are an affront to human dignity even in normal times. The Ministry of Interior’s statement that CIE will reopen after the pandemic has dismayed activists and local officials who condemn the treatment of detainees and question detention’s effectiveness. Spanish law allows for non-custodial or “precautionary” measures that authorities should use as alternatives to detention whenever possible, in accordance with EU law.

In contrast to the reprieve extended to CIE detainees on the mainland, conditions for individuals trapped in reception facilities in Ceuta and Melilla have deteriorated. Normally, the CETI are semi-open facilities, allowing individuals to come and go. However, authorities closed them due to COVID-19, no longer allowing this free movement. They argue that prohibiting people from leaving is necessary to prevent the spread of coronavirus. Government assurances that the CETIs meet health and safety standards are questionable. In early June 2020, several NGOs lodged a complaint with the Spanish Ombudsman citing deplorable conditions there. Residents have limited access to food, water, and hygiene, and to freedom of movement. In early April 2020, Amnesty International reported that the CETI in Melilla was holding more than 1,700 individuals—about three times its capacity. NGOs have called on the government to guarantee individuals’ ability to request international protection and order urgent transfers to adequate facilities on the mainland.

The situation is similarly dire in the Canary Islands. In its fourth quarter report for 2019, the EU Agency for Fundamental Rights (FRA) warned that “due to the increasing number of arrivals in the Canary Islands, the reception system on the islands collapsed.” The recent increase in arrivals is exacerbating this situation. In a meeting of the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) on June 15, 2020, chairperson Juan Fernando López Aguilar said that building migratory pressure on the Canary Islands had “overwhelmed” its regional administration. With flight cancellations rendering the islands “completely isolated” during the pandemic, he warned that human trafficking and exploitation could rise.

Impact on the accommodation and integration system

Early in the health crisis, the Spanish government took steps to mitigate the impact of the lockdown on asylum seekers’ access to accommodation and integration services. First, it suspended deadlines so that individuals already in the system would not lose their accommodation. It also issued a special temporary provision allowing asylum seekers to request or continue receiving assistance from the system without valid documents. Even individuals who were unable to formally submit asylum applications could submit an affidavit of intent (declaración responsable) directly at a designated shelter to become eligible for assistance. With MISSM offices closed, authorities began conducting interviews by phone to determine applicants’ eligibility. The government required centers to ensure coverage of beneficiaries’ basic needs and provide them with information about the coronavirus. Organizations began to offer language instruction, job training, and other orientation remotely.

Unfortunately, given that the accommodation system was already overwhelmed before the pandemic, there is a real risk that it cannot meet the new demand. With the state of emergency preventing many people from working, the number of those needing assistance has already increased. Without additional support, the wellbeing of thousands is at risk.

Socioeconomic integration

The strict lockdown in Spain has denied many people a source of income. Asylum seekers, who mostly work in the informal economy and are unable to do their jobs from home, have been particularly hard hit. The loss of income jeopardizes their ability to pay for basic needs, including food and rent, increasing the risk of health problems and homelessness.

The government did take steps to facilitate opportunities for migrants and asylum seekers to work—primarily in sectors that most needed their contributions. In late March 2020, the government announced it would prioritize and expedite work and residence permits for those with medical backgrounds who were in the country regularly. It also extended residence and work contracts for agriculture workers whose documents expired between March 14 and June 30. The government also issued temporary agriculture work permits to third-country nationals between 18 and 21 years old already in Spain with valid residence permits. This stands to benefit young asylum seekers who were not yet eligible to work. In addition, the government confirmed that asylum seekers with red cards would be eligible to work after six months even if unable to complete the usual administrative procedures.

Of course, until the economy fully reopens, asylum seekers in many other sectors will remain unable to work. Moreover, the legal right to work does not guarantee that an individual will be employed. Asylum seekers often confront obstacles to employment, including discrimination, language and cultural barriers, and bureaucratic hurdles. The long and complicated process for validating foreign degrees, for example, continues to handicap professionals outside the medical sector. Accommodation centers and NGOs have tried to offer language instruction and job training remotely. However, practical and financial restrictions under the lockdown have made it difficult to provide the full range of services that would facilitate asylum seekers’ integration once the country reopens.

Finally, unemployment will likely remain high even after the lockdown ends. The International Monetary Fund (IMF) predicted in April 2020 that Spain’s unemployment rate could reach 20.8 percent. The pandemic’s severe economic impact is likely to fuel tensions between asylum seekers and host communities as they compete for available jobs. The United Nations has repeatedly warned of a rise in xenophobia and hate speech around the world as a direct result of the pandemic. This is likely to further marginalize asylum seekers and hinder their access to employment.

Looking Forward: Obstacles to Overcoming the Post-pandemic Challenge

The first wave of the COVID-19 pandemic appears to have passed in Spain. As the country tentatively returns to normal, the government will have to grapple with new challenges that the public health crisis and subsequent economic crisis are creating for asylum seekers and its own citizens. Put simply, the challenge amounts to addressing the needs of more people who are in greater need, with fewer resources and opportunities. Various long-standing weaknesses in the asylum system will make it difficult to fill the gaps that the pandemic laid bare.

Insufficient capacity

Spain’s asylum system was overwhelmed already before the pandemic. Changes made to improve what the Ministry of Interior called the OAR’s “deplorable” capacity in 2018 have had some success. However, the system clearly remained unprepared to handle the surge of applications in recent years. At the end of 2019, there were over 120,000 applications pending. The government approved €146 million (about $160 million) in subsidies to further boost its capacity. However, by May 31, 2020, the number of pending applications had risen to nearly 141,000.

Long processing times leave asylum seekers in a worrying limbo and delay the full realization of their rights. With the accommodation and integration system overwhelmed and practical and financial challenges facing NGOs, the government should make every effort to reduce individuals’ vulnerabilities. Doing so will require better coordination among the various entities in different ministries that share responsibility for asylum and immigration affairs.

The European Union has provided technical and financial assistance to support Spain’s asylum and reception systems, and to address border management and the return of rejected applicants. However, Spain has not requested operational assistance from the European Asylum Support Office (EASO). This EU agency helps coordinate asylum matters in the region and provides technical, practical, and operational support to Member States to fulfill their obligations under EU and international law.

Improving capacity and cooperation, with a view toward sustaining and strengthening protection, is urgent given that the pressure on the system is likely to build. EASO warns that “EU+ countries should be prepared for increases in asylum applications in the medium term, including due to the repercussions of COVID-19 on low-income countries.” Indeed, by May 2020, arrivals in Spain—as in the EU as a whole—had already begun to rise again. The trend continued in June—1,100 people arrived in Spain that month, with 94 percent arriving by sea.

National and EU Asylum Law

The government has been working to reform its existing 2009 asylum law. It aims to bring the law into compliance with EU legislation governing asylum procedures,[6] reception conditions,[7] and other aspects of the Common European Asylum System (CEAS). The European Commission has previously opened infringement procedures against Spain for failing to adopt its directives in a timely manner, a step that could bring it before the European Court of Justice (EUCJ).

One of the biggest problems to address is the significant delay in processing asylum applications and the growing backlog that the OAR is handling. Accelerating asylum procedures to meet EU timelines should help reduce the strain on Spain’s system. However, advocates worry that speeding up processing will deprive individuals of a thorough review of their claims and wrongly deny people protection. A draft proposal revealed in February 2020 reflects a harder line that restricts access to asylum, limits individuals’ access to protection in CIEs, and permits additional grounds for denying asylum requests. It reflects a trend towards closing the space for asylum seen throughout Europe— particularly in “frontline countries” with external borders like Greece, Italy, and Hungary—under the guise of restricting access to economic migrants.

Tensions between parties of Spain’s fragile coalition government have made reaching a final agreement difficult. Now, the pandemic has further delayed progress. The standstill mirrors regional dynamics as the EU continues to delay the promised New Pact on Migration and Asylum. In April 2020, Spain joined Germany, France, and Italy in calling for the Pact to include a “binding mechanism” to distribute asylum applicants and thus relieve pressure on frontline countries. The Spanish government has said it will reject any EU proposal that does not include mandatory quotas to relocate asylum seekers and migrants rescued at sea. Without such assurances of regional solidarity, Spain may be unable or unwilling to implement adequate reforms to its own asylum system. Equitable responsibility sharing among EU member states is essential to create a more effective and humane regional policy.

Regularization

There are other measures the government should take to benefit both asylum seekers and host communities during the health crisis and beyond. Although it has been generous in extending humanitarian protection status to Venezuelans, failing to recognize them as refugees belies the severity and nature of the crisis they flee. More importantly, humanitarian status does not guarantee the same protections as refugee status does and, although renewable, grants only one year of residency. The possibility that a change in government or national circumstances could lead policymakers to revoke this accommodation for Venezuelans creates a sense of insecurity among affected individuals. Granting those in need of protection a status that puts them more firmly on the path to long-term residency would directly benefit them and enable the government to better plan public services.

Indeed, facilitating access to asylum and channels for legal migration would reduce the risks that vulnerable individuals face trying to enter Spain through dangerous crossings. It would also reduce risks and uncertainties for those who entered Spain with tourist visas or acquired temporary residency permits then exceeded their stays rather than go through the complex, lengthy asylum process. Individuals in the country irregularly often hesitate to seek healthcare for fear of detention or deportation—a fact that could compromise the government’s efforts to prevent a second wave of COVID-19.

Moreover, extending basic protections and rights to vulnerable people facilitates their ability to integrate into and contribute to their host communities. In this way, regularization benefits both the displaced and host populations. Easing access to employment, housing, education, healthcare, and social safety nets is especially important as the country confronts—and recovers from—the pandemic. That reality has already led Portugal, Italy, and other countries to regularize some migrants and asylum seekers during the pandemic. It also gave new momentum to advocates long calling on Spain to facilitate access to regularization there. Since April 2020, more than 1,000 groups have supported an ongoing campaign for a new process to regularize irregular migrants and asylum seekers whose applications have long been pending decision.

The costs of a large-scale regularization—which advocates predict could benefit about 600,000 people—are not insignificant. However, the step is not unprecedented. Since enacting Spain’s first immigration law in 1985, governments across the political spectrum have launched six extraordinary regularization processes, often coinciding with broader legislative reform. The last, in 2005, benefited more than 570,000 individuals. Given developments since then, the expected changes to Spanish and EU policy, and the new challenges that the global public health crisis has created, the Spanish government should lead in moving forward with more expansive measures to facilitate regularization.

Conclusion

As the threat of COVID-19 begins to ease, Spain must address the ways that the pandemic has impacted asylum seekers within its borders. A rush to resume operations or reinstate administrative deadlines may deprive asylum seekers of the protections they need. Revoking benefits like work permits and freedom from detention could reverse gains made during the state of emergency. At the same time, the government must understand how COVID-19 is likely to shape asylum trends in the near future and prepare to accommodate new asylum seekers. It should remedy the disparate and discriminatory way in which asylum procedures play out at its different borders to ensure equal respect of all individuals’ rights. With EU support, Spain can take steps now to improve its asylum process and strengthen capacity as the region manages this next chapter together.

Recommendations to the Government of Spain

Work to guarantee asylum seekers’ access to international protection, healthcare, and other basic rights in the context of the COVID-19 pandemic. Any extraordinary measures that authorities take to mitigate the pandemic should be proportionate to the health crisis, be in line with public health experts’ guidance, and respect international law and human rights. Asylum seekers’ access to healthcare, information, and social and economic services is critical to public health.
Increase the capacity of the Office of Asylum and Refuge (OAR) to shorten processing times without neglecting due diligence. Ensuring that asylum requests are reviewed in a timely manner as dictated by the EU Procedures Directive cannot come at the expense of giving thorough consideration to each applicant’s circumstances. The government should increase the OAR’s capacity as soon as possible to prevent a growing backlog and processing delays once the state of emergency ends.
Increase the capacity of the national accommodation and integration system. The pandemic’s impact is leaving more people in greater need of support from a system that was already overwhelmed. The government must invest in building more shelters, subsidizing designated NGO-run facilities, improving conditions, and expanding access to social and economic integration services to ensure an adequate response for all those in need.
Improve conditions in first-reception centers in the Spanish enclaves and Canary Islands. While the risk of the coronavirus’ spread remains high, the government should ensure that facilities accommodating migrants and asylum seekers allow proper physical distancing, good hygiene practices, and access to healthcare. If safe accommodation is not possible in CETI and CATE, individuals should be transferred to adequate facilities on the mainland.
Increase protections for vulnerable asylum seekers. Better processes must be in place to identify and provide for individuals with special needs, including victims of human trafficking, women, unaccompanied minors, and LGBTQI+ individuals. The government should also work with civil society groups to combat the xenophobia and discrimination that can intensify asylum seekers’ vulnerabilities.
Keep the CIE shut amid the public health crisis. Even after the health threat recedes, authorities should expand the use of alternatives to immigration detention to ensure individuals’ access to physical and mental health, as well as legal assistance and information about asylum.
Ensure authorities treat all migrants and asylum seekers with consistency and in compliance with national, EU, and international law, regardless of their nationality or place of arrival. Arbitrary detention, hot returns, and summary expulsions violate individuals’ human rights. Authorities in the Spanish enclaves and Canary Islands must manage borders humanely and responsibly and ensure the right to asylum. The central government should promote harmonization across autonomous communities’ asylum practices and ensure adequate capacity to manage arrivals in each.
Avoid making changes to the national asylum law that would jeopardize the rights of asylum seekers. A more restrictive asylum policy that expands grounds for rejecting claims, tightens border controls, facilitates deportations, and fast-tracks procedures at the expense of necessary safeguards, will exacerbate rather than alleviate problems.
Facilitate regularization mechanisms to guarantee legal rights and protections for asylum seekers and irregular migrants in Spain. At a minimum, grant stronger and longer-term protections for Venezuelans and others fleeing humanitarian crises.

Recommendations to the European Union

The European Union should provide financial and technical support to Spain to improve its capacity to process asylum claims and humanely manage its borders. EU leaders must also monitor Spain’s policies and practices to ensure that its efforts comply with regional and international law.
The European Union should move forward with establishing a New Pact on Asylum and Migration. The Pact must provide a concrete plan for a humane and efficient asylum policy that safeguards human rights, mandates responsibility sharing, and guarantees protections for forcibly displaced people. It is important for the EU to have an agreement in place and begin reform of the CEAS ahead of the increase in asylum seekers that is expected as a result of the pandemic.

Endnotes

[1] UNHCR reports figures for arrivals to Spain on the “Western Mediterranean route,” which includes people arriving by land in Morocco and by sea, including via both the Mediterranean route and the Atlantic route from West Africa to the Canary Islands.

[2] “The protection given to a non-EU national or a stateless person who does not qualify as a refugee, but in respect of whom substantial grounds have been shown to believe that the person concerned, if returned to his or her country of origin or, in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm and who is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” Council Directive 2004/83/EC [Source: https://ec.europa.eu/home-affairs/e-library/glossary/subsidiary-protection_en]

[3] “On 5 March 2019, the Inter-Ministerial Commission of Asylum (CIAR) introduced a policy granting one-year renewable residence permits “on humanitarian grounds of international protection” to Venezuelan nationals whose asylum applications have been rejected between January 2014 and February 2019.” Source: AIDA 2019 Update: Spain https://www.asylumineurope.org/news/14-04-2020/aida-2019-update-spain

[4] The CIEs are administrative detention facilities that hold individuals awaiting deportation. Deportation can be ordered for individuals found violating immigration law, refusal of entry, or a consequence of having been convicted of a crime, or as a substitution for a criminal conviction. It is not meant to apply to asylum seekers. Under the Aliens Act. if authorities do not carry out the deportation order in 60 days, they must release the detainee. Although individuals can be deported at a later time, the law states that they cannot be detained again. However, NGOs report that people have, in practice, been detained again. [Sources: https://picum.org/a-step-forward-towards-ending-immigration-detention-in-spain/ ; https://www.asylumineurope.org/reports/country/spain/grounds-detention.]

[5] The EU+ region includes the 27 EU Member States, Norway, and Switzerland.

[6] The Asylum Procedures Directive “was adopted by the European Parliament and the Council in 2013 [to create] a coherent system which ensures that decisions on applications for international protection are taken more efficiently and more fairly […]”. It establishes procedural rules and timelines for lodging and examining applications, and appealing decisions; training decision makers and guaranteeing applicants’ access to legal assistance; providing adequate support to individuals with special needs. [Source: European Commission Migration and Home Affairs department (DG HOME), https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/common-procedures_en]

[7] The Reception Conditions Directive aims at ensuring better as well as more harmonized standards of reception conditions throughout the Union. It ensures that applicants have access to housing, food, clothing, health care, education for minors and access to employment under certain conditions. [Source: DG HOME, https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/reception-conditions_en]

Cover Photo: A group of North African migrants wait to disembark from the rescue boat on their arrival at the port of Motril on May 22, 2020 in Motril, Spain. (Photo by Carlos Gil Andreu/Getty Images)