With the number of asylum claims on the rise across Europe and around the world, the discussion on safe routes for people seeking asylum is not unique to the UK. I thought it would useful to look at what processes other countries have in place for receiving refugees aside from irregular arrivals and resettlement schemes. I wanted to look at Spain in more detail after hearing it mentioned as a country that has provided for people to apply for asylum outside the country.

There is a common misconception that refugees should apply to come to the UK rather than make the journey here themselves. There is no ‘queue’ to be jumped, and it is extremely difficult to access the existing routes. ‘Safe routes’ is a term often mentioned as a way to stop people from coming here and seeking asylum themselves without advance permission to enter legally.

The legal position

Spain’s Asylum Act (Law 12/2009) includes the following provision:

Article 38 – Applications for international protection in embassies and consulates

In order to examine applications made outside the country, and provided that the applicant is not a national of the State in which the diplomatic representation is located and that there is a risk to his or her physical integrity, the ambassadors of Spain may facilitate the transfer of the asylum-seeker or asylum-seekers to Spain for the purposes of submitting an asylum claim in accordance with the procedure laid down by this Law.

The implementing regulations for this Law shall lay down expressly the conditions of access to the embassies and consulates for persons seeking international protection, and the procedure for assessing the need to transfer them to Spain.

Article 38 does not allow for out-of-country asylum claims to be made, but instead provides for people to be transferred to and enter Spain legally so that they can then make the formal asylum application.

People cannot apply in the country where they are a citizen or resident. This means that as with any other asylum claim, people must have already fled their country. The other requirement is that their life or physical integrity must be at risk.

A natural reading of the second part of article 38 is that regulations would be made separately that would set out how people can access asylum via the embassy and what the process would be after that. However no implementing regulations were laid after this and so it was assumed that the process was not available.

Then, in the case of ND and NT v Spain (Applications nos. 8675/15 and 8697/15) (Grand Chamber), European Court of Human Rights, 13 February 2020 the Spanish government submitted that some regulations (Royal Decree no. 203/1995, cited at [35] of ND) that predated that Asylum Act and had been made to implement a previous version of asylum law were also applicable to article 38.

Essentially Spain argued that there were lawful procedures that existed to enter legally to claim asylum, arguing that:

115. … The applicants could also have applied for asylum in Morocco or in any Spanish consulate in the countries they had travelled through on their way to Morocco, including in their countries of origin (section 38 of Law no. 12/2009 of 30 October 2009 on asylum and subsidiary protection, see paragraph 34 above). They could likewise have applied at the Spanish embassy in Rabat, the consulate in Nador (16.8 km from Melilla) or at the Beni Enzar official border crossing point, from where they would have been taken to the Melilla police station (section 21(1) of Law no. 12/2009, cited above).

The point was made about the lack of implementing regulations, however the Spanish government submitted that earlier regulations were in force and provided for the relevant process required in the Asylum Act.

224.  … That decree provided for a specific procedure enabling the ambassadors to establish whether asylum applications submitted at the Spanish embassies and consulates were genuine and, if appropriate, to arrange for the transfer to Spain of the persons concerned, by means of an urgent admission in the event of a high risk in a third country. It also provided that an administrative decision had to be issued within six months and was subject to judicial review. The applicability of this procedure was confirmed by a circular letter of 20 November 2009, sent by the government to all Spanish ambassadors and containing instructions regarding the arrangements for such transfers. This circular letter provides that “if in the exercise of his or her duties the ambassador considers that ‘there is a risk to [the asylum‑seeker’s] physical integrity’, he or she may secure the person’s transfer to Spain (this may entail issuing a visa and a one-way airline ticket to Spain, subject to prior approval by the Ministry)” (see paragraph 38 above). The applicants’ assertion that section 38 of Law no. 12/2009 was not applicable at the material time owing to the absence of an implementing decree is therefore erroneous.

The European Court of Human Rights accepted these submissions and so the Spanish government successfully resisted the case that ND and NT had been unlawfully removed.

In what may be described euphemistically as a ‘bold move’, the government almost immediately sought to argue the opposite position in a domestic case. The Supreme Court dismissed the government’s argument that the Asylum Act could not be used due to the lack of implementing regulations, in case 3445/2020 in October 2020.

This means that the right to apply for asylum at Spanish embassies and consulates does exist in Spanish law.

The process 

The current process for Spain has helpfully been set out in this European Commission document. If people are outside their country of nationality or residence and their life is in danger then they can make a request at a Spanish embassy.

The ambassador then assesses the risk faced and if satisfied the conditions are met they can advise that a person is transferred to Spain. Consular offices cannot do this, only the ambassador.

The next stage is that the Ministry of Foreign Affairs, European Union and Cooperation consults with the Ministry of Home Affairs about the merits of the prospective asylum claim. If the initial analysis of merits is positive then a decision may be made that the person can travel to Spain to submit their claim.

In order to enter Spain legally, a visa or “laissez-passer” will be issued. The person will be expected to make their own arrangements to travel to Spain, however it may be possible to get some assistance with costs.

However, it seems that in practice registration of asylum claims at embassies is still not happening. In November 2020 it was reported that of 38 requests made to Spanish consulates in Athens and Tangier, none had been responded to. It does not appear that anything has changed since then.

Conclusion

While it is certainly interesting to look at what has happened in Spain, options for people wanting to use this route seem to be mainly theoretical at this point, despite the legal successes. It seems that certainly at some point there was an intention on the part of Spain to make provision for some people to apply to enter in order to claim asylum. 

The EU document referred to above is also very interesting for a couple of reasons. The document is ‘Ad hoc query on submission of asylum applications at representations of Member State’, submitted by Latvia and responded to by 23 EU countries in 2022. Latvia made the query because of the number of people crossing from Belarus, and where they have declared a state of emergency for much of the past two years. It looks as though they may be seeking a better solution. France, Hungary and Lithuania’s responses are also worth looking at, as they seem to have provisions similar to Spain’s.

It is easy to identify issues with such a process, namely that it is easy to see large numbers of people applying and lengthy decision times leaving people in precarious situations. However if a perfect process was possible, one would hope that it would already be existence somewhere. Safe routes must be tried and innovations like this are useful, or would be if actually put into practice.

My final point is that a process like this would not stop all people who arrive irregularly. No safe routes would unless they were completely uncapped. It is therefore unhelpful to advocate for them them in that way.

Safe routes are better framed as harm reduction. If politicians and governments cared at all about safety of those people making the journey to the UK the government should be trying to open as many as possible. The question will always arise, though, of what really is ‘possible’. Opinions are going to differ on that.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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