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Summary

Spain’s Law Regulating the Right of Asylum and Subsidiary Protection provides three types of international protection: conventional asylum for refugees, subsidiary protection, and exceptional protection for humanitarian reasons.  Application procedures differ depending on whether the request for international protection was filed within Spain or at the Spanish border.  The Ministry of Interior examines the application and must render a decision within a deadline of six months, or three months in some circumstances.  The Law provides for the rights and obligations of international protection for applicants and those granted refugee status to include identity cards and travel documents, legal residence and work permits, social services, education, health care assistance, and family reunification.  Spain also has a program for resettlement of refugees.

I. Introduction

The Spanish Constitution[1] provides that the terms under which citizens from other countries and stateless persons may enjoy the right to asylum in Spain will be determined by law.[2]  In furtherance of the constitutional mandate, Law 12/2009 Regulating the Right of Asylum and Subsidiary Protection (LRASP) was adopted to provide the legal framework applicable to refugees and stateless persons who seek asylum in Spain.[3]  The Law applies to those who qualify as refugees under the definition provided by the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol.[4]  The regulation of the LRASP is still pending congressional approval.  Therefore, Royal Decree 203/1995[5] enacting the regulation implementing the previous legislation on refugees is still applicable in so far as it does not contradict the current LRASP.[6]

While the state has authority over asylum, international protection, and refugee resettlement,[7] the autonomous communities (Spanish regions) and local authorities are responsible, in their respective jurisdictions, for the implementation of social integration policies on employment, education, culture, health, welfare, and housing for immigrants, including refugees.[8]

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II. International Protection

The LRASP provides three types of international protection: conventional asylum for refugees, subsidiary protection, and exceptional protection for humanitarian reasons. 

Under the LRASP a refugee is an individual from a non-EU country with a well-founded fear of being persecuted in his or her country for reasons of race, religion, nationality, political opinion, membership of a certain social group, gender, or sexual orientation, who is outside his or her country of nationality and, because of such fears, may not or does not want to return to his or her country.[9]  The status of refugee may also be granted to a stateless individual who is away from his or her country of habitual residence for the same fears, and may not or does not want to return to that country.[10]

The LRASP provides that foreigners who do not qualify as refugees may obtain protección subsidiaria (subsidiary protection) if there are reasons to believe that if they return to their country they would be exposed to a genuine risk of suffering any of the following: (a) a death sentence, (b) torture or inhuman or degrading treatment, or (c) serious threats against their life or integrity by reason of indiscriminate violence.[11]

In addition to conventional refugee status and subsidiary protection, the LRASP provides an additional international exceptional protection for humanitarian reasons to those that do not meet the requirements of the two previous categories.[12]  Exceptional protection may be granted to those who are in a vulnerable situation, such as minors; unaccompanied minors; the disabled or elderly; pregnant women; single parents with minors; individuals who have been tortured, raped, or subjected to any other serious forms of psychological or physical violence; and victims of human trafficking.[13]  In these cases, the government may grant authorization to remain in the country under the general immigration rules.[14]  Minors granted international protection are provided health care and psychological assistance.[15]  Unaccompanied minors are placed in special centers and assigned a legal representative who assists them throughout the process of applying for international protection.[16]

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III.  Non-Qualification for International Protection

The following individuals are excluded from refugee status:

  • Individuals already protected under United Nations agencies other than the United Nations High Commissioner for Refugees (UNHCR)
  • Individuals whose country of residence has given them the rights and obligations inherent to the nationals of such country
  • Individuals who have committed or instigated the perpetration of a crime against peace, a war crime, a crime against humanity, or a serious crime under Spanish law, or have engaged in organized crime
  • Individuals guilty of acts contrary to the principles and purpose of the United Nations and its founders[17]

The right to asylum and subsidiary protection in general will be denied to people who, based on well-founded reasons, may be a threat to the security of Spain or those with a final conviction for a serious crime who may constitute a threat to the community.[18]

Individuals who meet the following criteria are excluded from subsidiary protection:

  • Individuals who have committed or instigated the perpetration of a crime against peace, a war crime, a crime against humanity, or a serious crime under Spanish law, or have engaged in organized crime
  • Individuals guilty of acts contrary to the principles and purpose of the United Nations
  • Individuals who constitute a danger to the internal or external security of Spain[19]

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IV.  Enforcement Authorities

The LRASP provides that the Oficina de Asilo y Refugio (OAR, Office of Asylum and Refuge) within the General Sub-Directorate of Asylum of the Ministry of Interior is the authority on asylum matters.[20]  The OAR has the authority in matters of registration of asylum applications, interviewing asylum seekers, and preparing cases before the Comisión Interministerial de Asilo y Refugio (CIMAR, Inter-ministerial Commission of Asylum and Refugee), an advisory entity within the Ministry of Interior.[21]  The Spanish representative before the UNHCR, who is notified of all applications for international protection in Spain, participates in the deliberations of the CIMAR.[22]

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V.  Application Process

Applications for international protection may be made in person or through a representative in the case of legal or physical incapacitation, either inside Spain or at the border.[23]  The applicant may file the international protection claim in the following places:

  • Entry points at Border Control
  • Within Spain at OARs, in any of the foreigners offices of the nineteen autonomous communities, or at police stations
  • At diplomatic or consular Spanish missions abroad[24]

A.  Application Procedure in Spain

A person must claim asylum within one month of entering the country or one month from the moment the events that provide grounds for the request took place.[25]

The application must include all personal information and any documents or evidence supporting the case.[26]  Once the application is filed, the applicant has the right to remain in Spain until the application is decided, has access to legal aid and an interpreter in his or her language, will have his or her application notified to the UNHCR, will have any return or extradition process halted until a final decision is reached, has access to his or her file at any time, and has the right to receive health care and social services.[27]

The applicant will be required to cooperate with the Spanish authorities, submit any information in support of his or her claim, submit his or her fingerprints, report his or her domicile in Spain and any change thereof, and appear before the competent authorities upon request.[28]

The OAR may reject any application for international protection if Spain does not have jurisdiction to process the petition in accordance with international agreements; when the application does not meet the legal requirements for its processing; when the applicant already has refugee status in another state; when the applicant comes from a safe third country; when the application is a resubmission of a previous one already denied; and when the applicant is a national of another EU country.[29]

The applicant must be notified of a rejection of his or her application within a maximum of one month.[30]  If there is no response within this time, it is understood that the admission of the application petition has been accepted and the applicant may remain in Spain while a final decision is reached.[31]

B. Application Procedure at the Border

If the application is submitted at the border because the applicant does not meet the necessary requirements to enter Spain, the Ministry of Interior has four days to decide on the application.[32]  If the application is admitted the applicant may remain in Spain.[33]  If the application is rejected, the decision may be subject to reexamination, which must be filed within two days of the notice of nonadmittance and must be decided by the Ministry of Interior within two days of the review request.[34]

C. Application Procedure in Spanish Embassies and Consulates 

According to the LRASP, an asylum seeker may file a petition for international protection at the Spanish embassy or consulate in the country where he or she resides if such country is not the applicant’s country of nationality, in order to request that Spain provide for his or her transfer to Spain.[35]

Because the regulation of the LRASP has not been enacted, this provision has not been applied due to the lack of rules for its implementation.[36]

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VI.  Eligibility Process

Once an application is admitted for processing either at the border or in Spain, it is subject to examination by the Ministry of Interior.[37]  Once this examination is completed, the Ministry of Interior renders a final decision on granting or rejecting the petition within six months upon the recommendation of the CIMAR.[38]  The deadline of six months may be reduced to three months in the following situations:

  • Petitions that appear obviously unfounded
  • Applicants with special needs, such as unaccompanied children
  • Applicants whose claims are based on grounds unrelated to the evaluation of the requirements for the granting of refugee or subsidiary protection status
  • Applicants whose country of origin and nationality is considered safe or, if stateless, where the applicant’s habitual residence is in a safe country
  • The applicant submits the application one month after the date of entry into Spain or one month after the date of the events that justify the fear of persecution or serious harm, for no justifiable reason
  • Applicants fall under any of the grounds for exclusion or denial of refugee status[39]
  • Applications filed in an Internment Centre for Foreigners,[40] which are processed under the urgent procedure once the applicants have been admitted[41]

The eligibility decision may be subject to judicial review.[42]  International protection applicants are provided with assistance to cover their basic needs, such as social services, education, and health care, when they do not have economic resources to provide for themselves.[43]

During the international protection procedure, the applicant and his or her family are lodged in public reception centers or facilities available through nongovernment organizations.[44]  The applicant is also given work authorization until a final decision on international protection status is reached.[45]

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VII.  Rights of Refugees and Beneficiaries of Subsidiary Protection

The protection granted to refugees and beneficiaries of subsidiary protection includes their non-refoulement and their right to remain in Spain.[46]  They are also entitled to the following rights:

  • To be issued an identity card and travel documents[47]
  • Social service benefits[48]
  • Legal residence and work permits[49]
  • Access to information on the rights and obligations derived from the international protection granted[50]
  • Access to social integration programs[51]
  • Access to voluntary return programs[52]
  • Freedom of circulation and movement[53]
  • Right to family reunification[54]

The government will set up social integration programs for protected people under equal opportunity and nondiscrimination standards.[55]

The nonadmission or rejection of applications for international protection results in the return, expulsion, or compulsory departure of the applicant from Spain or his or her transfer to a country with jurisdiction to examine the petition, unless the applicant meets the requirements to legally remain in Spain on a temporary or resident visa, or if the applicant is authorized to remain in Spain on humanitarian grounds.[56]

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VIII.  Family Reunification

Those granted international protection as refugees or beneficiaries of subsidiary protection have the right to apply for international protection of their family members, including spouses or partners in a permanent partnership or union, dependent parents, and minor children.  Other family members may be reunified upon proof that they were dependent on the applicant in the country of origin.[57]  A resolution granting family reunification also grants resident status and work authorization to the beneficiaries under the same terms applicable to the main applicant.[58]

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IX.  Resettlement of Refugees

Resettlement is a process by which a refugee who is temporarily granted asylum in a country is resettled in a third country where he or she is given permanent protection.[59]

The LSARP provided that the government would set up an annual national resettlement program (NRP) and establish the annual quota of resettled individuals in Spain.  The NRP was adopted in coordination with the UNHCR and other related international organizations.[60]  The Council of Ministries set up the first NRP on October of 2011 and the latest was approved on November 2015, allowing for the resettlement of a specific number of refugees including particularly vulnerable families, women, and children.[61]

Refugees resettled in Spain are governed by the same rules applicable to those granted refugee status under the LSARP procedures described above.[62]

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Prepared by Graciela Rodriguez-Ferrand
Senior Foreign Law Specialist
March 2016


[1] Constitución Espanola [CE] art. 13.

[2] Id. art. 13.4.

[3] Ley 12/2009 Reguladora del Derecho de Asilo y de Protección Subsidiaria (LRASP) art. 1, Boletín  Oficial del Estado [B.O.E.], Oct. 31, 2009, http://www.boe.es/boe/dias/2009/10/31/pdfs/BOE-A-2009-17242.pdf, archived at http://perma.cc/H5QY-VTDS.

[4] Id. art. 2.

[5] Real Decreto 203/1995, B.O.E., Mar. 2, 1995, https://www.boe.es/diario_boe/txt.php?id=BOE-A-1995-5542 archived at https://perma.cc/G98B-UUW2.

[6] España Incumple su Propia Ley de Asilo al no Desarrollar su Reglamento en Seis Años, El Boletín (Sept. 5, 2015), http://www.elboletin.com/nacional/122023/espana-incumple-ley-de-ashilo.html, archived at https://perma.cc/HED3-V6EK.

[7] CE art. 13.4.

[8] Real Decreto 557/2011, Disposición Final Primera, B.O.E., Apr. 30, 2011, http://www.boe.es/buscar/pdf/2011/ BOE-A-2011-7703-consolidado.pdf, archived at https://perma.cc/FT8Q-XPE2.

[9] Id. art. 3.

[10] Id.

[11] Id. arts. 4, 10.

[13] Id.

[14] Id. art. 46.3.

[15] Id. art. 47.

[16] Id. art. 48.

[17] Id. art. 8.

[18] Id. arts. 9.a, 9.b, 12.

[19] Id. art. 11.

[20] Id. art. 23.1.

[21] Id. arts. 23, 24.2.

[22] Id. arts. 34, 35.

[23] Id. art. 17.1; Real Decreto 203/1995 art. 4.

[24] Real Decreto 203/1995 art. 4.

[25] LRASP  art. 17.2; Real Decreto 203/1995 art. 7.1.

[26] Id. art. 18.2.b.

[27] Id. arts. 18.1, 19.1, 19.2.

[28] Id. art. 18.2.

[29] Id. art. 20.1.

[30] Id. art. 20.2.

[31] Id.

[32] Id. art. 21.1.

[33] Id. art. 22.

[34] Id. art. 21.4.

[35] Id. art. 38.

[36] Espana Incumple su PropiaLey de Asilo al no Desarrollar su Reglamento en Seis Anios, supra note 6.

[38] Id. arts. 24.2, 24.3.

[39] Id. art. 25.1.

[40] Real Decreto 162/2014, por el que se Aprueba el Reglamento de Funcionamiento y Régimen Interior de los Centros de Internamiento deExtranjeros [Royal Decree 162/2014, Approves the Regulation of the Operation and Internal Regime of the Internment Centers for Foreigners] art. 1, B.O.E., Mar. 15, 2014, http://www.boe.es/ buscar/act.php?id=BOE-A-2014-2749, archived at https://perma.cc/R79X-A689.

[41] LRASP art. 25.2.

[42] Id. art. 29.

[43] Id. art. 30.

[44] Id. art. 31.

[45] Id. art. 32.

[46] Id. arts. 5, 36.1.a.

[47] Id. art. 36.1.d.

[48] Id. art. 36.1.e–g.

[49] Id. art. 36.1.c; Convention Relating to the Status of Refugees arts. 12–34, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137, http://www.unhcr.org/3b66c2aa10.pdf, archived at https://perma.cc/36LL-Z9PR.

[50] LRASP art. 36.1.b.

[51] Id. art. 36.1.i.

[52] Id. art. 36.1.j.

[53] Id. art. 36.1.h.

[54] Id. art. 36.1.k.

[55] Id. art. 36.2.

[56] Id. art. 37.

[57] Id. art. 40.

[58] Id. art. 41.3.

[59] UNHCR, Manual del Reasentamiento del ACNUr 474 (2011), http://acnur.es/PDF/Manual-%20Reasentamiento-ACNUR.pdf, archived at https://perma.cc/HBK2-8TTL; ACCEM, http://www.accem.es/es/monograficos/ reasentamiento (last visited Jan. 29, 2016), archived at https://perma.cc/P279-9EFJ.

[60] LRASP, First Additional Provision, B.O.E., Oct. 31, 2009, http://www.boe.es/boe/dias/2009/10/31/pdfs/BOE-A-2009-17242.pdf, archived at http://perma.cc/H5QY-VTDS.

[61] Referencia del Consejo de Ministros, La Moncloa (Nov. 6, 2015), http://www.lamoncloa.gob.es/consejodeministros/referencias/Paginas/2015/refc20151106.aspx#refugiados, archived at https://perma.cc/F75R-QV2Z; España Acogerá a Treinta Refugiados en 2013 y 2014 dentro del Programa de Reasentamiento, España Acogerá Treinta Refugiados en 2013 y 2014 Dentro del Programa de Reasentamiento, European Resettlement Network, http://www.resettlement.eu/news/espa%C3%B1a-acoger%C3%A1-treinta-refugiados-en-2013-y-2014-dentro-del-programa-de-reasentamiento (last visited Jan. 29, 2016), archived at https://perma.cc/32NB-KDL6; Spain’s Resettlement Program, European Resettlement Network,  http://www.resettlement.eu/country/spain-0#germanys-resettlement-programme (last visited Jan. 29, 2016), archived at https://perma.cc/H6SE-7V3A.

[62] LRASP, First Additional Provision, 2d para.