The role of Spain as a gateway to the schengen area: Changes in the asylum law and their implications for human rights

International Journal of Refugee Law

Volumn 10, Issue 1-2, 1998, Pages 214-229

  Bazo, María Teresa Gil ^a  

^a UNIVERSITY OF DEUSTO   (Spain)

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EID: 0005530045     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/10.1.214     Document Type: Article

References (28)

1. This statement, however, is not incompatible with a negative migratory balance in certain years. For instance, the migratory balance for 1988 was -39,000 people, which means that Spain produced more emigrants that year than it received immigrants. See Gomel, G. and Rebccchini, S., Migrazioni in Europa: andamenti, prospettice, indicazioni di politica economica. Roma: Banca D'Italia, 1992, 13. The nationality provisions in the Civil Code reflect the need to use jus sanguinis as the main criterion for its transmission, in order to prevent the denationalisation of its population. Jus soils is used exceptionally, in order to avoid statelessness, when the country of origin of the parents does not grant any nationality to the child and when a child whose origin is unknown is found in Spanish territory. It is also used to prevent the perpetuation of generations of foreigners with strong links with the country; so if a child is born in Spain of foreign parents, he or she will have Spanish nationality if at least one of the parents was also born in Spain (art. 17 of the Civil Code).
2. In addition, unofficial data estimate that around 0.5% more of the population are irregular migrants. This makes a total of 1.5% of foreigners, of whom 50% are EU citizens.
3. Escobar Hernández, C., 'Asylum and Refugee Status in Spain', 4 IJRL 66 (1992).
4. About 13,000 people enjoy refugee status in Spain; another 0.03% of the total population.
5. Published in B.O.E. No. 81, 5 Apr. 1994, 10390-10422.
6. The obligations of Spain as a member of the European Union have imposed measures of adjustment in several other domains besides refugee law. The analysis of the reasons of such a strong desire of belonging goes beyond the purpose of this paper. See, Garcia, S., 'The Spanish Experience and its Implications for a Citizen's Europe', in Goddard, V., Llobera, J. and Shore, C., (eds.), The Anthropology of Europe. Identities and Boundaries in Conflict, Oxford: Berg Publishers, 1991, 255-74. On the supranational identification of the Spanish population, see Chapter G ('Identificación supranacional', 379-489) of the continuing reporting system on the Social Reality of Spain: CIRES, La realidad social en España 1993-1994, Bilbao y Madrid: CIRES, Fundación BBV, Caja de Madrid, Bilbao Bizkaia Kutxa, 1995.
7. The obligations of Spain as a member of the European Union have imposed measures of adjustment in several other domains besides refugee law. The analysis of the reasons of such a strong desire of belonging goes beyond the purpose of this paper. See, Garcia, S., 'The Spanish Experience and its Implications for a Citizen's Europe', in Goddard, V., Llobera, J. and Shore, C., (eds.), The Anthropology of Europe. Identities and Boundaries in Conflict, Oxford: Berg Publishers, 1991, 255-74. On the supranational identification of the Spanish population, see Chapter G ('Identificación supranacional', 379-489) of the continuing reporting system on the Social Reality of Spain: CIRES, La realidad social en España 1993-1994, Bilbao y Madrid: CIRES, Fundación BBV, Caja de Madrid, Bilbao Bizkaia Kutxa, 1995.
8. Recurso de inconstitucionalidad against the Act 9/1994, presented by the Ombudsman on 23 Aug. 1994.
9. Established by the Real Decrcto 490, 7 Apr. 1995.
10. CIRES, Baletin CIRES: Actitud hacia los inmigrantes, Bilbao y Madrid: CIRES, Bilbao Bizkaia Kutxa, Fundación BBV, Caja de Madrid, Marzo 1994, 30. However, the CIRES report shows that there is a growing fear that immigrants may affect the chances of employment for Spaniards: 57% think that there will be more unemployment against 39% who think immigration has no relevance (61), even though less than 5% of the people interviewed have worked or work with, North Africans, black Africans, South Americans, East Europeans or Asians (74).
11. Order of 16 May 1979, B.O.E. No. 124, 24 May 1979, 11485.
12. Spain had become a party to both international instruments on 22 July 1978. According to Spanish Law on Treaties, both instruments became immediately incorporated into municipal law.
13. Italics supplied.
14. Even though it is discussed whether the enjoyment of asylum may be a fundamental right, the Act establishes that the procedure to be followed before the courts shall be that contained in the Act for the Judicial Protection of Fundamental Rights. See Marino Menéndez, F., 'Algunas observaciones sobre la futura ley de asilo espanola', Revista de Estudios Internacionales, Vol. 2, No. 4, 1981, 955-65.
15. Article 81 of the Constitution.
16. Refusal of leave of entry.
17. Art. 17 is located within Title I, 'Fundamental Rights and Duties', which covers arts. 10 to 55, and its application to foreigners cannot be questioned since art. 13 of the Constitution states that 'foreigners shall enjoy in Spain the public freedoms guaranteed by this Tide in the terms established by the treaties and the law'. It is, then, clearly stated by the Constitution that the fundamental rights within Title I extend also to foreigners, and therefore art. 17 applies to foreigners. Even though the statement is categorical, not all rights included in Title I are covered by it, but when foreigners are excluded, the Constitution clearly says so (for example, art. 23 recognises the right to vote for all citizens, and art. 30 provides for the right and duty of all Spaniards to defend Spain); but no distinction is made between foreigners and citizens by the provision itself when it states that every person has the right to liberty and security. Even though customary international law does not impose a rule of equal treatment between foreigners and citizens, it does impose a minimum standard in the treatment of foreigners. Such standard includes the right to liberty. See Garrido Falla, F. Comentarios a la Constitución Española. Madrid: Civitas, 1980, 161.
18. Such 'suitable offices' are, many times, unlocked cells at the borders' police stations. Physically asylum seekers are in jail, juridically, they are not.
19. This article was object of examination by the Constitutional Court, which established in its Resolution 115/1987, of 7 July, that the measure did not violate the law as long as the detention was directed to the expulsion and it did not last longer than the necessary time to practise it.
20. For an analysis of the fact that foreigners at the border are within Spanish territory, see the Recurso de inconstitucionalidad against the Act 9/1994, presented by the Ombudsman on 23 August 1994. On the legal status of the international zones, see Julien-Laferrière, F., (dir.), Frontières du droit, frontières des droits. L'introuvable statut de la 'zone international', Paris: L'Harmattan/ANAFE, 1993. The European Court of Human Rights has ruled on the compatibility of such practices with the EGHR50, stating that 'the mere fact that it is possible for asylum seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty ... Furthermore, this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in': Amuur v. France, Judgment of 25 June 1996, Reports of Judgments and Decisions, 199G-III, para. 48.
21. For an analysis of the fact that foreigners at the border are within Spanish territory, see the Recurso de inconstitucionalidad against the Act 9/1994, presented by the Ombudsman on 23 August 1994. On the legal status of the international zones, see Julien-Laferrière, F., (dir.), Frontières du droit, frontières des droits. L'introuvable statut de la 'zone international', Paris: L'Harmattan/ANAFE, 1993. The European Court of Human Rights has ruled on the compatibility of such practices with the EGHR50, stating that 'the mere fact that it is possible for asylum seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty ... Furthermore, this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in': Amuur v. France, Judgment of 25 June 1996, Reports of Judgments and Decisions, 199G-III, para. 48.
22. Diez de Aguilar, I., 'La solicitud de asilo', in Mariño Menéndez, F.M. (dir.), Derecho de extranjería, asilo y refugio, Madrid: Ministerio de Asuntos Sociales, 1995, 578-9.
23. As Diez de Aguilar points out, this is the only procedure in the Spanish legal system expressly intended to the denial of a petition. Diez de Aguilar, I., 'La solicitud de asilo', above note 20, 559.
24. A full expulsion procedure, with all its guarantees, would be longer and more expensive than a non-formal refusal at the border.
25. Sanctions are in fact imposed every time an alien is refused access to the country, regardless of the reasons for the refusal.
26. Although the Supreme Court has not followed a coherent pattern on this matter, the latest jurisprudence is clear about it. Authors base this statement on the existence of just one jus puniendi for the State whose principles will be of application to all its different domains. See Nieto, A., Derecho administrativo sancionador. Madrid: Tecnos, 1992.
27. According to statements by police officers at the airport, it seems that companies are complying with these rules, and that no problems have arisen until now.
28. For a detailed account of the events, see Informe de CEAR a ECRE del primer semestre de 1996, pp. 15-16.