ACCESS TO ASYLUM

Human Rights Watch interviewed a number of migrants who had been detained in one of the airport facilities upon arriving in Spain and reported being unable to apply for asylum, including several who later successfully applied and were admitted for consideration of their asylum claims.

In particular, migrants complained that they faced substantial language barriers when attempting to request asylum in both the police stations and in the airport detention facilities. As well, migrants said they found that the lawyers available to them were unable or unwilling to advocate on their behalf or to provide them with necessary information to access the asylum system.¹¹² Spanish law and international guidelines on asylum procedures, however, require the provision of legal and interpretation and translation services necessary for applicants to submit a claim to the authorities,¹¹³ as well as information on their rights in a language they understand.¹¹⁴

According to a man from Sierra Leone, after the Spanish Civil Guard picked him up from the sea off the coast of Fuerteventura in September 2001, he requested asylum, but his request was ignored, and he was immediately detained in the old airport facility. He told Human Rights Watch that the police did not provide him a lawyer and that he was unable to apply for asylum from the airport facility:

They're not speaking the language; they don't understand us. They just bring doctors to look after us. There was no communication with anyone. We could not leave the camp. We were there twenty-four hours a day. They gave us food three times a day and let us go to the toilet. Nothing. No communication for twenty-three days.¹¹⁵

Balthazar D.,¹¹⁶ a thirty-three-year-old from Togo, told Human Rights Watch he had difficulty applying for asylum because of language barriers and that when he was in Lanzarote he could not tell the judge that he wanted to apply because he was brought to the court with a large group of migrants and never had the opportunity to discuss his personal situation. Human Rights Watch researchers saw copies of the document (in Spanish) that he received from the court, which indicated only that he should be "expelled" by the process of devolución and transferred to an official detention center such as Barranco Seco in Las Palmas in the meantime. Balthazar explained that when he tried to request asylum at the Lanzarote airport facility the police told him he was lying and so refused to proceed with his application. After his release from detention Balthazar was able to apply for asylum in Las Palmas, but only after persistent efforts. He told Human Rights Watch that for several days in a row, authorities at the Las Palmas police station refused to act on his request to apply.¹¹⁷

Other migrants we interviewed reported ongoing difficulties applying for asylum. Jonathan N.,¹¹⁸ a thirty-two-year-old man from Gambia, for example, told Human Rights Watch that he had wanted to apply for asylum since the day he arrived but that he had planned to do it after he was released from airport detention when he could find a lawyer and get information about the process and his rights. He explained that once he was released the Spanish authorities and a lawyer in Las Palmas informed him that he was required to apply for asylum within the first month of arrival and was thus no longer eligible to make the application. Because Jonathan does not have documents or legal status in Spain, he cannot travel from the Canary Islands to seek other legal help or further information on his current options.¹¹⁹

Jonathan ran afoul of a Spanish law that requires migrants to apply for asylum within one month of their entry into Spanish territory, or risk prejudicial assumptions against their cases.¹²⁰ This law creates a serious procedural and legal barrier to potential asylum seekers arriving in the Canary Islands. Reported practices at police stations and during detention at the airport facilities indicate that for most asylum seekers arriving in the Canaries it is effectively impossible to get access to the procedure within the first month of their arrival in Spain. Only a minority are fortunate enough to be released and to find a lawyer in time to apply before the one-month deadline lapses. Moreover, although legally asylum seekers may still proceed with their applications for asylum after one month in Spain, as Jonathan found, few lawyers are willing to take these cases or argue that the delay should not be considered prejudicial given the circumstances. Consequently, the guideline for application within one month is now interpreted by many to be a steadfast rule prohibiting later application for asylum.

In some cases current practice in the Canary Islands, especially in Fuerteventura, appears to be even more stringent with regard to time limits on the ability to apply for asylum without prejudice. One lawyer told Human Rights Watch that:

[i]f they came looking for asylum, they are supposed to ask for it immediately. If they are in the airport two to three days then maybe they talked to someone; it's not a good request.¹²¹

The United Nations High Commissioner for Refugees (UNHCR) has expressed concern that the introduction of strict time limits for the filing of asylum requests "is contrary to accepted asylum and refugee protections."¹²² The Executive Committee (ExCom), which is UNHCR's governing body and whose conclusions are binding on Spain, has further expressed that:

[w]hile time limits may well be set for certain specific administrative purposes, the asylum seeker's failure to submit the request within a certain time limit should not lead to the asylum request being excluded from consideration.¹²³

Although Spanish asylum law does not, in fact, prohibit applications for asylum after the one-month "deadline," the law does stipulate that in such cases the Ministry of Interior and competent authorities for the processing of asylum claims may interpret the request as:

based on facts, information or allegations which are openly false, implausible or, because they are no longer valid or significant, do not constitute the basis of a need for protection.¹²⁴

This provision must be considered in light of article 31 of the Convention Relating to the Status of Refugees (Refugee Convention), which prohibits states from penalizing asylum seekers who present themselves to the authorities "without delay." Paragraph 4 of the UNHCR Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (UNHCR Guidelines), an authoritative interpretation of Spain's obligations under the Refugee Convention, provides that:

[g]iven the special situation of asylum-seekers, in particular the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of insecurity, and the fact that these and other circumstances may vary enormously from one asylum seeker to another, there is no time limit which can be mechanically applied or associated with the expression "without delay."¹²⁵

In short, Spain's one-month rule, even were it not being erroneously interpreted by lawyers as a strict time limit on applications for asylum, raises serious concerns about compliance with refugee protection standards.

The considerable obstacle asylum seekers face when attempting to apply for asylum in the Canary Islands, caused by misinterpretation of the one-month rule and the implicit penalization of asylum seekers who apply after one-month in-country, is further compounded by local perspectives on what constitutes a request for asylum. According to one lawyer working with arriving migrants in the Fuerteventura police station,

[w]e the lawyers, we can't say anything when they talk about their experience. They must say, "I want asylum." They have to say it. If they don't, we can't do anything for them.¹²⁶

Representatives of the Fuerteventura office of CEAR, a Spanish asylum and refugee organization, confirmed that the national police in Fuerteventura have a similar approach. Coordinator Pedro Santana observed that:

The problem is some of these people could be refugees. But, if they don't say the two magical words-asilo político-then the police are not obliged to open the process to them. If I am an immigrant and I say, "in my country we have a war. I have a lot of problems because of my political ideas and I could go to jail." . . . The police do nothing. Normally people stay here and then get transferred to Barranco Seco [the official detention center in Las Palmas]. Our CEAR office in Las Palmas gives them assistance there. But here, the proceedings are not started.¹²⁷

According to a Bar Association representative in Fuerteventura, if asylum is requested after the issuance of an order of retorno-one of the most common orders issued to migrants before their transfer to the airport detention facility (and issued within a few hours to a maximum of seventy-hours after their arrest)-deportation cannot be stopped or even suspended.¹²⁸ This interpretation is in conflict with Spanish and international asylum law with regard to the deportation of asylum seekers. Spanish law and international refugee standards prohibit the deportation of or refusal of entry to any migrant or refugee who has applied for asylum, pending the decision on his or her application.¹²⁹ The fact that the Spanish authorities have initiated procedures for deportation should not prohibit one from applying for asylum nor should it limit the protections afforded asylum seekers during the period pending a decision on their request.¹³⁰

If lawyers working with migrants interpret the law to bar asylum applications after the issuance of an order of retorno, migrants' rights to seek asylum are significantly narrowed. In effect, migrants arriving in the Canary Islands must apply for asylum (and convince lawyers or police of the merits of this claim) within a few hours to a few days, depending on the speed at which paperwork for their particular group of arrivals can be processed, without information on their right to apply or assistance through lawyers and translators. The variable time-line for the acceptance of applications for asylum depends largely on the speed at which the Spanish authorities in Fuerteventura process migrants' paperwork upon arrival and issue orders of deportation by retorno, not on the ability or will of migrants to apply for asylum. Consequently, migrants' access to asylum is substantially determined by external and unpredictable factors such as how many other migrants arrived that day, whether it is the weekend or a holiday, how full the airport facility is, or whether there are scheduled planes to one's country of origin or to Las Palmas slotted for use by police authorities.

In addition to the numerous procedural obstacles barring access to asylum procedures, many migrants arriving in the Canary Islands face serious substantive problems when attempting to apply for asylum because they do not possess official documents. Lawyers in Fuerteventura told Human Rights Watch that migrants must demonstrate proof of their country of origin and individual persecution "at the moment they apply for asylum."¹³¹

This is particularly problematic for migrants coming from the disputed territory of the Western Sahara, who cannot produce immediate proof that they are from the disputed territory. Numerous NGO and humanitarian aid workers with whom we spoke indicated that in the Canary Islands there is a strong presumption against the validity of claims that one is Sahrawi, which is only strengthened by the fact that Sahrawis frequently speak Arabic and are not readily distinguishable from Moroccans arriving in the Canaries. Moreover, in many cases, someone from the Western Sahara who has documents would be carrying a Moroccan passport, further solidifying the local view that people claiming to be Sahrawis are really just Moroccans trying to stay in Spain. Consequently, very few of these migrants are able to actually apply for asylum before they are deported back to Morocco.¹³²

NGO and humanitarian aid workers with whom we spoke also expressed serious concern that Spanish authorities were making preliminary determinations as to whether migrants from certain sub-Saharan African countries have a valid claim for asylum. These determinations are particularly prejudicial to Nigerians because Spain has signed a readmission agreement with Nigeria that enables the swift deportation of large groups of Nigerians back to Nigeria. Consequently, potential asylum seekers from Nigeria risk being deported before they are able to retain counsel or convince the authorities of the validity of their asylum claim. By contrast, deportation to Sierra Leone or other sub-Saharan African countries with which there is no agreement is significantly less frequent and more resource-intensive for the Spanish government.¹³³ The lack of transparency surrounding the processes affecting migrants arriving in the Canary Islands makes monitoring access to asylum difficult, but one aid worker suggested to Human Rights Watch that local police and lawyers, acting on presumptions or stereotypes, create serious obstacles to asylum in Spain:

They [the police] start from the base that they [sub-Saharan African migrants] are all Nigerian: if not, then prove it. Why should a Sierra Leonean who has lived in the bush all his life know what the biggest supermarket in Freetown is? A woman will say, for example, that she is from one country and the lawyer will say "no [you are not] because those marks on your left cheek are markings from Senegal."¹³⁴

Spanish asylum law stipulates that proof or documentation of one's country of origin and facts indicating personal persecution are critical to the success of an application, but the law does not require that migrants demonstrate proof of their country of origin or of individual persecution immediately upon arrival in the Canaries in order to apply for asylum.¹³⁵ Preventing migrants from applying on this basis would be in violation of Spanish and international law.¹³⁶ Furthermore, under international refugee law, the requirement that a refugee establish his or her "well-founded fear of persecution" is generally recognized to require proof of a fear of future persecution, not actual past persecution.¹³⁷ Any interpretation to the contrary by local police and lawyers conflicts with Spain's obligations under international refugee law.

In sum, Human Rights Watch's investigation revealed that migrants arriving in the Canary Islands face severe problems accessing the asylum system. There is little information available to migrants about the right to apply for asylum or the necessary steps in the application procedure. The quality and availability of translators is extremely limited, making it difficult for many migrants to even express a desire to apply for asylum or to ask for information that is not readily provided. Available lawyers are not specially trained in asylum and refugee matters nor do they appear willing to initiate claims and advocate on behalf of arriving migrants wishing to seek asylum in Spain, resulting in misinterpretations of the law to the detriment of potential asylum seekers. Moreover, local perspectives on what constitutes a legitimate asylum claim and preliminary determinations of the legitimacy of asylum requests compound these preexisting procedural barriers to applying for asylum.

Human Rights Watch raised these concerns in meetings with UNHCR (Spain) and the head of the Ministry of Interior's Office for Asylum and Refuge Documentation Department, Carlos Báez.¹³⁸ The Spanish branch of UNHCR told Human Rights Watch that it has received information about the Canaries situation from the asylum and refugee organization CEAR in Las Palmas and has plans to travel to the Canary Islands to investigate the situation facing asylum seekers there later this year if they are able to find sufficient funds for the project. Báez acknowledged that there are indeed comparatively few asylum applications filed in the Canary Islands but noted that there was little cause for concern. When we queried him on the extremely low number of asylum applications coming from the Canary Islands, he suggested we "ask the migrants. Maybe they think it is better to apply in Madrid."¹³⁹ Báez later added that in his opinion migrants arriving by patera do not typically have reasons to ask for asylum, as they come from richer sub-Saharan African countries and can afford to pay to cross by patera. With regard to procedural or practical barriers to applying for asylum in the Canaries, Mr. Báez assured us that in the last five years people have generally been able to ask for asylum and know where to go to apply, because the police "usually have a pretty good level of knowledge. Plus, if one asks the police, they will say where to go and the NGOs will inform the foreigner."¹⁴⁰ He stated unequivocally that he had no notice of cases in which migrants reported that it was difficult to apply because of practical barriers and that the police in Spain "have very precise instructions."¹⁴¹

112 Personnel of the local office of the Comisión Española de Ayuda al Refugiado (CEAR) in Fuerteventura reiterated these concerns, telling Human Rights Watch that they fear legitimate asylum seekers are unable to apply for asylum in the police station or at the airport facility in Fuerteventura. Human Rights Watch interview, Pedro Santana, Coordinator, and Itziar Díaz Soloaga, lawyer, CEAR (Fuerteventura), Puerto del Rosario, October 31, 2001.

113 Spanish Law 9/1994 (March 19) (published in Boletín Oficial del Estado, nos. 122 and 131), amending Law 5/1984 (March 26), Regulating Refugee Status and the Right to Asylum, Chapter Two, Article 4(1); Royal Decree 203/1995 (February 10) approving the Implementation Regulation [hereinafter "Implementing Decree"] of Law 5/1984 (March 26) regulating Refugee Status and the Right to Asylum, which was amended by Law 9/1994 (May 16) (published in Boletín Oficial del Estado, no. 52, 2 March 1995), Articles 8(4) (request made within Spanish territory) & 19(2) (requests made at border points); Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR, 1992), para. 192. The Handbook on Procedures and Criteria for Determining Refugee Status was written to guide governments in conducting their own asylum procedures. See Executive Committee of the High Commissioner's Programme, Conclusion No. 8 (1977), para. 53.6 (listing basic requirements for procedures for the determination of refugee status from which the Handbook on Procedures and Criteria for Determining Refugee Status was prepared). Since 1975, the Executive Committee (ExCom) has passed a series of Conclusions at its annual meetings. The Conclusions are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law. While the Conclusions are not legally binding, they do constitute a body of soft international refugee law and ExCom member states are obliged to abide by them. Spain is an ExCom member state; as such it is obligated to respect the international standards stipulated in the Conclusions.

114 Implementing Decree of Law 5/1984 (March 26) regulating Refugee Status and the Right to Asylum, which was amended by Law 9/1994 (May 16), Section 1, Article 5(1) stipulates that:

The Administration, in collaboration with the UNHCR and the non-governmental organisations that pursue such objectives as providing aid to refugees, must produce a brochure in several languages with all of the information useful to asylum-seekers. This document will be available at any of the governmental agencies mentioned in article 4 above [which includes border points and Provincial Police Departments or District Police Departments] and must be given to asylum-seekers when they submit their request so that they may contact those organisations that they deem necessary.

115 Human Rights Watch interview, thirty-five-year-old man from Sierra Leone, Madrid, October 27, 2001.

116 Not his real name.

117 Human Rights Watch interview, Las Palmas, November 3, 2001.

118 Not his real name.

119 Human Rights Watch interview, Las Palmas, October 30, 2001.

120 Spanish Law 9/1994 (March 19) (published in Boletín Oficial del Estado nos. 122 (27 March 1984) and 131 (6 June 1994)), amending Law 5/1984 (March 26), Regulating Refugee Status and the Right to Asylum, Chapter Two, Article 4(1) in combination with Section 1, Article 7(1) of the Implementing Decree of Law 5/1984 (March 26) regulating Refugee Status and the Right to Asylum, which was amended by Law 9/1994 (May 16).

121 Human Rights Watch interview, lawyer from the Colegio de Abogados (Fuerteventura), Puerto del Rosario, October 30, 2001.

122 Note on International Protection, Refugee Survey Quarterly, Vol. 18:2, 1999, 88-101, at p. 88 para. 18.

123 See Executive Committee of the UNHCR's Programme, Conclusion 15(i) (1979).

124 Implementing Decree of Law 5/1984 (March 26) regulating Refugee Status and the Right to Asylum, which was amended by Law 9/1994 (May 16), Article 7(2), citing Law 5/1984, Article 5(6)(d).

125 United Nations High Commissioner for Refugees, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, Geneva, February 1999.

126 Human Rights Watch interview, lawyer from the Colegio de Abogados (Fuerteventura), Puerto del Rosario, October 30, 2001.

127 Human Rights Watch interview, Pedro Santana, Coordinator, CEAR (Fuerteventura), Puerto del Rosario, October 31, 2001. The Spanish Red Cross also expressed concern that potential asylum seekers are being deported to their countries of origin on the basis of orders for repatriation by devolución or retorno or by expulsion orders before their asylum claims can be heard or processed. Spanish Red Cross officials noted that the local police perceives them as encouraging migrants to apply for asylum because they routinely provide information on the right to seek asylum and that consequently the police do not believe that migrants applying for asylum are legitimate asylum seekers. The Spanish Red Cross told Human Rights Watch that in fact many migrants do want to apply for asylum but are either afraid to ask the police or fail to "say the magic word to get the process rolling: refugiado." Human Rights Watch telephone interview, Spanish Red Cross, January 4, 2002.

128 Human Rights Watch interview, lawyer from the Colegio de Abogados (Fuerteventura), Puerto del Rosario, October 30, 2001.

129 Spanish Law 9/1994 (March 19) (published in Boletín Oficial del Estado, nos. 122 and 131), amending Law 5/1984 (March 26), Regulating Refugee Status and the Right to Asylum, Chapter Two, Article 5(1), "Consequences of the request for asylum." See also Executive Committee of the UNHCR's Programme, Conclusion No. 8 on Determination of Refugee Status (1977), which states that an applicant should be permitted to remain in the country pending a decision on his or her initial request and while an appeal is pending. Returning an asylum seeker without a full consideration of the asylum claim could amount to refoulement as access to full and fair asylum determination procedures is a necessary safeguard against refoulement, which is prohibited under article 33 of the Refugee Convention, article 3 of the European Convention on Human Rights, and article 3 of the U.N. Convention against Torture. See European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Article 3; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987), Article 3.

130 Implementing Decree of Law 5/1984 (March 26) regulating Refugee Status and the Right to Asylum, which was amended by Law 9/1994 (May 16), Article 7(2), citing Law 5/1984, Articles 5(6)(d), 11, and 12.

131 Human Rights Watch interview, lawyer from the Colegio de Abogados (Fuerteventura), Puerto del Rosario, October 30, 2001.

132 Human Rights Watch interview, Pedro Santana, Coordinator, and Itziar Díaz Soloaga, lawyer, CEAR (Fuerteventura), Puerto del Rosario, October 31, 2001; Human Rights Watch interview, Spanish Red Cross (Fuerteventura), Puerto del Rosario, October 31, 2001.

133 Ibid.

134 Human Rights Watch interview, Spanish Red Cross (Fuerteventura), Puerto del Rosario, October 31, 2001.

135 Implementing Decree of Law 5/1984 (March 26) regulating Refugee Status and the Right to Asylum, which was amended by Law 9/1994 (May 16), Section 1, Articles 8(3) and 9(1).

136 Ibid. See also Refugee Convention, Articles 1(a) and 31. Article 31 prohibits states from penalizing asylum seekers for the matter in which they enter a country, such as without proper documentation. Penalties imposed by states on asylum seekers could include: detention; rejection at the frontier; or negative impacts on asylum claims.

137 Refugee Convention, article 1(a). See also European Council on Refugees and Exiles (ECRE), Position on the Interpretation of Article 1 of the Refugee Convention, September 2000, which can be found at: http://www.ecre.org/positions/csrinter.shtml (accessed February 5, 2002).

138 UNHCR has only one office in Spain, in Madrid, but does conduct research and investigative missions to other parts of Spain when it is determined that there is a need for investigation and they are able to find funding in their budget. Human Rights Watch interview, UNHCR (Spain), Madrid, October 24, 2001; Human Rights Watch telephone interview, UNHCR (Spain), January 15, 2001.

139 Human Rights Watch interview, Carlos Báez Evertsz, Head of Documentation, Ministry of Interior (Office of Asylum and Refugees), Madrid, October 25, 2001.

140 Ibid.

141 Ibid.