legal and social conditions for asylum seekers and refugees in ...

Detention
proves impossible to carry out removal. In all other cases, the asylum seeker is returned to the
country from which he/she came, which may be his/her country of origin or a third country;
– if the application was lodged within the country, the rejected asylum seeker will be notified of
an exit order, requiring him/her to leave Spain voluntarily within a fixed term, usually 15 days,
after which his/her continued stay in the country will be illegal;
– if a deportation order has been issued against the applicant, it will be enforced as soon as
possible after the final negative decision on the asylum claim has been notified.
Under the previous Aliens Act of 1985 and its implementing Aliens Regulation of 1996, rejected
asylum seekers who failed to meet the deadline for leaving the country voluntarily were
considered to be staying illegally in the country and were issued with a deportation order. This
administrative decision could be appealed to the Regional High Court (“Tribunal Superior de
Justicia”). Appeals had no automatic suspensive effect, but the appellants could apply separately
for suspensive effect and this was granted by the court if enforcement of the administrative
decision could cause serious or irreparable damage to the applicant and public interest was not
seriously affected by the suspension. The general rule, as laid down by the Supreme Court, was
to grant suspension when the applicant had family or business ties in Spain, and to refuse it when
the deportation order followed a criminal offence. Other circumstances were considered on a
case-by-case basis.
The situation has changed following the entry into force of the new Aliens Act on 1 February
2000. According to Section 49(a) of the new Act, staying illegally in Spain can only be sanctioned
with a fine, which may vary from ESP 50,000 [EUR 300] to ESP 1,000,000 [EUR 6,010]. The
consequences for a rejected asylum seeker of staying in the country in spite of an exit order
remain unclear and are yet to be established by a new implementing regulation and by the case
law developed by the courts.
Asylum seekers
The detention of asylum seekers is only foreseen in Section 5(7) of the Asylum Act, which
provides for the ability to detain border applicants within the premises of the border point until a
decision on the admissibility of their application has been made (see “Border admissibility
procedure” above). Such detention is limited to a maximum of six days. The compliance of the
time limit and the conditions of this form of detention within the Spanish Constitution have been
challenged by the Ombudsman before the Constitutional Court, but no ruling has been made so
far.
Rejected asylum seekers
Section 58 of the new Aliens Act also provides for the authority to detain a foreigner in order to
ensure the enforcement of a deportation order issued against him/her. Such detention must be
authorised and controlled by a judge, and can never exceed 40 days.
Applications from abroad
It is possible to apply for asylum at a Spanish embassy abroad, provided the applicant is in a third
country. Applications lodged with an embassy are sent to the Spanish Ministry of Foreign Affairs
together with a report from the embassy concerned, which then forwards the cases to the Ministry
of Interior. These applications are not processed under the admissibility procedure but directly
under that of ordinary determination.
264
Spain