QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE : RECEPTION CONDITIONS OF 27 JANUARY May 2007

Transcription

1 QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE : RECEPTION CONDITIONS OF 27 JANUARY 2003 May 2007 IN: SPAIN By Ph.D. Irene Claro Lecturer on International Public Law University Pontificia Comillas iclaro@der.upcomillas.es 1. NORMS OF TRANSPOSITION Q.1. Identify the main norm of transposition (indicate the title, date, number, date of entry into force and references of publication into the official journal) and indicate its legal nature (legislative, regulatory, administrative); indicate in your answer if this norm was only devoted to the directive or if it has been included in a more general text and indicate in that case by quoting precisely the numbers of the provisions adopted to transpose the directive. On 7 January 2005, a new Aliens Regulation was published in the official gazette. [Royal Decree 2393/2004 of 30 December, which is an enlargement of the Organic Law No. 4/2000 of 11 January, on Rights and Freedoms of Foreigners in Spain and their Social Integration (which was amended by Organic Law No. 14/2003 of 20 November, and by he Organic Law 11/2003 of 20 September 2003)]. This Royal Decree entered into force the 7th February Along with it, several provisions of the 1995 Asylum Regulation [Royal Decree 203/1995 of 10 February] were amended. One of the reported intentions of the Government when drafting the amendments to the Asylum Regulation, was to transpose the Reception Conditions Directive, which was mainly done through the modification of article 15 of the Asylum Regulation, but also through an Additional Disposition, the number seventeen, to the Royal Decree by which the Aliens Regulation and amendments to the Asylum Regulation, were approved. In addition to these articles, articles 163, 164 and 165 of the 2004 Aliens Regulation deals with the establishment of Reception Centres for Refugees as a part of the public Migration Centres network The translation of the Articles into English in this report has been made by UNHCR. Reception Conditions National Reports 1359

2 Q.2. List by order of importance by using numbers (1, 2, 3) the others norms of transposition if there are more than one (indicate for each norm the title, date, number and references of publication into the official journal; include in your answer the administrative measures taken to ensure implementation of the directive and of the transposition norms like regulations, administrative circulars, special instructions, ) - Approved before the Reception Conditions Directive and still in force: Ministerial Order of 13 January 1989 (Social Affairs Ministry), regulating the Reception Centres for Refugees (CAR). Resolution 6 July 1998, General Department (Dirección General) of the IMSERSO (Institute of Migrations and Social Services depending on the Labour and Social Affairs Ministry), to develop the Ministerial Order of 13 January Ministerial Order of 18 September 2001 (Labour and Social Affairs Ministry), by which the economic quantities for the beneficiaries of the Reception Centres are established. - Approved after the Reception Conditions Directive: 1. Resolution 11 February 2005, General Department for Integration of the Immigrants (Dirección General de Integración de los Inmigrantes) (depending on the Labour and Social Affairs Ministry), by which the maximum quantities regarding the economic helps for the beneficiaries of the Reception Centres for Refugees are updated. Q.3. Explain which level of government is competent to adopt the legal norms on reception conditions for asylum seekers (specify in particular in case of a federal or regional State, if it is the federal/central power or the components; in case, specify below when it is impossible for you to answer a question because it is about the competence of the components and it is impossible for you to gather reliable information about all of them) The central Government is competent to adopt legal norms on reception conditions for asylum seekers. The Reception Centres for Refugees were created by a Ministerial Order. As a part of the public Migration Centres network, the Reception Centres for Refugees are depending on the Labour and Social Affairs Ministry, specifically on the General Department for Integration of the Immigrants (Dirección General de Integración de los Inmigrantes) (see articles 163, 164 and 165 of the 2004 Aliens Regulation). Q.4. Explain the legal technical choices done to transpose the directive (comment on the nature and level of the norms used to do the transposition: legislative, regulatory, administrative like instructions, etc). Add any other element about the technique of transposition of the directive which is interesting for the implementation of Community law. Reception Conditions National Reports 1360

3 To transpose the Reception Conditions Directive the Government amended the 1995 Asylum Regulation through the 2004 Aliens Regulation. Besides the previous internal and administrative norms, like the Ministerial Orders or the Instructions, are still in force. Q.5. Mention if there is a general tendency to just copy the provisions of the directive into national legislation without redrafting or adaptation them to national circumstances? If yes, give some of the worst examples and explain if there is a risk that those provisions remain unapplied or will create difficulties of implementation in the future. There is not a general tendency to just copy the provisions of this directive into national legislation. Q.6. Have all the texts necessary to ensure the effective implementation of the new rules of transposition been adopted, prepared or at least foreseen in the future (for example a regulation completing a new law and the necessary instructions telling the administration how to apply the new rules)? From the Governmental point of view, the transposition of the Reception Conditions Directive has been finished with the amendment of the Asylum Regulation and the internal regulations of the Ministry of Labour and Social Affairs. The directive has been transposed in general with the amendment of the Asylum Regulation and this is a correct way to transpose. The problem is related to the amendment of the internal regulations of the Ministry of Labour and Social Affairs. The internal regulations of the Ministry of Labour and Social Affairs have been used also to transpose the directive. In this regard we are waiting for the new Asylum Law, although probably the future Asylum Law will introduce no change or development of the reception conditions regime. At this moment the first draft of a new Asylum Law is being discussed at the Governmental level. Unfortunately the first draft is not yet available and we have had no access to the project of transposition rules. Reception Conditions National Reports 1361

4 2. BIBLIOGRAPHY Q.7. Has an in-depth preparatory study been made public about the changes at the occasion of the transposition? If yes, thanks for trying to provide us a copy (please contact to answer this question adequately the body and person who was responsible for the preparation of the transposition of the directive in the public administration). No in-depth preparatory study has been made public. Q.8. Quote any recent scientific book or article published about the directive, the transposition rules or the question of reception conditions for asylum seekers in general (answer even if this literature is only available in your language and provide the complete title in your language (without translation) with all references; indicate author, title, in case name of periodical, year and place of publication). Guía sobre el derecho de asilo Rafael K. Polo y Virginia Carmona (coords.), Ministerio de Trabajo y Asuntos Sociales, Final Report of the European Open Forum on Reception and Health Care of Asylum Seekers Vienna, January 2006 ( (information provided by Spanish Red Cross). About legal advice: Informe sobre asistencia jurídica a los extranjeros en España, Defensor del Pueblo (Spanish Ombdusman), Madrid, September About minors: Nuevos retos que plantean los menores extranjeros al Derecho IV Jornadas sobre Derecho de los Menores, Isable E. Lázaro e Irene Culebras (Coord.), Universidad Pontificia Comillas y Fundación SEUR, Q.9. Quote any interesting decision of jurisprudence based on the implementation of the new rules of transposition of the directive (indicate references of publication if any)? At this moment there is no decision of jurisprudence. Reception Conditions National Reports 1362

5 3. GENERAL INFORMATION ABOUT THE SYSTEM OF RECEPTION CONDITIONS The purpose of the following two questions is to help the reader to understand easily and quickly the system of reception conditions in your Member State and also to avoid that you have to repeat general elements in other parts of the questionnaire. Please do not write more than one or maximum two pages and do not include large historical developments. Q.10. Describe in general the system of reception conditions in your Member State (in particular which are the main actors in charge of reception conditions?) The Department for the Integration of Immigrants is the organism responsible for the design and management of programmes for attending to the applicants for asylum (Royal Decree 1600/2004, of July 2. Official State Gazette (BOE) of July 3, 2004). The programme for temporary hosting is carried out at the Centres for Hosting Refugees, at the places agreed to with the Centres for Temporary Stays and custody houses managed by the NGOs (ACCEM, CEAR and Red Cross). In order to enter a Centre, the following are taken into consideration: the family circumstances, the date of arrival in Spain, the country the person has come from, the grounds for the application for asylum, the financial situation, the projects for the stay in Spain and the psychological aspects. The main actors in charge of reception conditions are the following Reception Centres: - Public Reception Centres for Refugees (Centros de Acogida de Refugiados or CAR) (Alcobendas, Madrid, Mislata Valencia- and Sevilla are directly dependent on the Public Administration); - Reception Centres for Refugees (Centros de Acogida de Refugiados or CAR) under the supervision of NGOs (for example, Spanish Red Cross is running 7 reception centres, preferably for asylum seekers but to be also used for immigrants in case there are vacancies). - Temporary Reception Centres (Centros de Estancia Temporal or CETI) in Ceuta and Melilla. - Temporary Reception Centres (Centros de Acogida Temporal or CAT), under the supervision of the Spanish Commission for Refugee Assistance (CEAR) (6 around Spain). - Because of lack of vacancies, hotels or apartments. - When asylum seekers have family members living in Spain they can choose not to stay at the reception centre but to be hosted by their families. They can use the reception centres services or the ones placed at the Spanish Red Cross local branches. They can receive financial support for 6 months, max. 1 year the same period as if they were at a reception centre Information provided by the Spanish Red Cross at Reception Conditions National Reports 1363

6 Q.11. Q11. A. Explain if you have different types and levels of reception conditions following the different stages of the asylum procedure (this implies that you have to give briefly the necessary explanations about the asylum procedure). Make if relevant for reception conditions a distinction between the following procedural stages: determination of the responsible Member State on the basis of the Dublin II regulation, special procedures at the border (including transit zones in airports), accelerated procedures, admissibility procedures, eligibility procedures and the different possibilities of appeals (suspensive or not) against a refusal of the asylum request. Indicate what the main differences of reception conditions are between the different stages (if necessary by detailing between the different elements of reception conditions, in particular housing) and explain what the evolution of reception conditions is following the different stages of the procedure. Under Spanish legislation, an asylum seeker can apply for asylum at the border or within the territory. In both cases the asylum procedure has two stages. The first one, after the asylum claim is lodged, implies the admission or inadmission to the normal refugee status determination procedure. The second one, after the admission, implies the examination of the refugee status or, when it has been applied, also the humanitarian status (leave to remain for humanitarian reasons). When asylum seekers lodged their claim at the border, they are hold, not "detained", while the asylum office decides on the admissibility or inadmissibility of the asylum claim. If the decision, after 4 days, is non-acceptance for admission the asylum seeker can ask for a re-examination on his/her request within the next 24 hours. Within a period of 2 days the re-examination must be decided upon. If the decision is again negative, the applicant has to leave the border post and will be returned to their country of origin or to a third country (i.e. under readmission agreements, flight destination, visas on their passport ). The maximum length of time for the admissibility procedure at the border is 7 days, from the moment in which the asylum application is lodged. In case of a judicial recourse, this may be extended for one or two additional days. If UNHCR considers, against the criterion of the administration, that the application should be admitted to the regular Refugee Status determination procedure, the asylum seeker will be allowed to enter Spanish territory to lodge a judicial recourse against the Administration's decision. Should the inadmissibility be agreed by UNHCR, that applicant can still lodge the recourse and the judge will decide on its suspensive effect 677. Madrid airport is the point in the country where most asylum claims are submitted. The asylum seekers allowed to enter the country are referred to an emergency reception point at Madrid local branch where they are counselled. 677 Information provided by UNHCR. Reception Conditions National Reports 1364

7 They stay in a hostel for a short period and when clinical analysis results are ready they are referred to a reception centre like those who apply for asylum within the territory. When applicants apply for asylum within the territory, the Spanish Red Cross local branches are responsible for all the clinical analyses and the referral to a reception centre is made by the headquarters 678. The accomodation of an asylum seeker in a Reception Centre is not mandatory. According Article 4 of the Ministerial Order of 13 January 1989 regulating the Reception Centres for Refugees in order to be accepted in these Centres it will be required, besides the availability of places, to fulfill the following requisites: a) Be a foreigner. b) Have presented an asylum request or for the recognition of the refugee status in Spain, and that the administrative file has not been decided upon. c) Lack of economic means for the needs of his/her needs and of his/her family. ( ). According to Article 13 of the Resolution 6 July 1998, approved to develop the Ministerial Order of 13 January 1989, special cases will have priority (for example, couples with children under 18, persons or families with a serious risk for political reasons in their country of origin, persons with psychosocial problems, etc.). It should be noted that asylum seekers are allowed to remain in the Reception Centers for Refugees for a period of six months, which may be renewed (six months more) because of particular social circumstances or vulnerability. The Temporary Reception Centres in Ceuta and Melilla do not normally have the capacity to lodge all asylum seekers, some of which have to wait until places are free, in order to access the Centers. The situation of asylum seekers who are outside the Temporary Reception Centres because of lack of vacancies and the refusal of the Government to move them to the peninsula (Ceuta and Melilla are not Schengen territory), has been precarious.asylum seekers who lodge their applications in Ceuta and Melilla, remain in the respective Temporary Reception Centers (open Centers) until the admissibility of their claim is decided upon. If admitted to the procedure, they are then transferred to the Mainland where they may, according to the general requisites, be lodged in the Reception Centers for refugees679. When asylum seekers overcome the admissibility phase in Ceuta and Melilla (maximum 2 months) they are relocated to a Reception Centre in the mainland Information provided by the Spanish Red Cross at Information provided by UNHCR. 680 Information provided by the Spanish Red Cross at Reception Conditions National Reports 1365

8 Q 11. B. Indicate precisely for which stage(s) of the asylum procedure the answers on reception conditions you give below are valid. The answers covered both stages according to the Asylum Regulation (Article 15 introduced to transpose the Directive to the Spanish legislation). The first one, after the asylum claim is lodged until the admission or inadmission to the normal refugee status determination procedure. The second one, after the admission to the normal refugee status determination procedure and till the final administrative resolution granting or denying refugee status or, when it has been applied, also the humanitarian status (leave to remain for humanitarian reasons). However the practice is different. Asylum seekers are not beneficiaries of the reception conditions during the first stage. They are beneficiaries of the reception conditions only when their applications are admitted to the normal Refugee Status Determination procedure. In case of application of Dublin II Regulation, they are not beneficiaries of the reception conditions. 4. GENERAL RULES ON RECEPTION CONDITIONS Q.12. Q 12. A. Are material reception conditions provided in kind, in money or in vouchers or in a combination of these elements (see article 13, 5 which is an optional provision)? Distinguish between the different elements (housing, food, clothes, health, transportation, pocket money, ). If reception conditions are provided in money (in general or in some cases, for instance when no places are anymore available in accommodation centres), indicate the precise amount given to the asylum seekers. Indicate in your answer what is provided in general and if there are exceptional cases. Specify in your answer if reception conditions are different from the general system of social aid for nationals or aliens and if yes, if and when (which stage of the asylum procedure) can asylum seekers have access to the general system of social aid? Only after studying the cases on an individual basis and when there are special and extraordinary circumstances (usually because of psychiatric problems), it is possible to cover part of the material conditions (including some budget money) outside the reception centre. When there is no place available in any reception centre or it is considered no advisable to access, it is possible to cover part of the material conditions (including some budget money) outside the reception centre, (for example, in hotels or apartments). It is important to take into account that how the total quantities are distributed to the asylum seekers depends on the organisation (Public Administration or NGO) that manage the centre. For example, one NGO has reported that its policy is to give them a total amount of money at the beginning of the month/week as a salary for everything and they will have to learn how to manage their savings. Public reception centres reported that they have around 300 euros per asylum seeker, but this money is not given immediately to each one. Reception Conditions National Reports 1366

9 The total amount in and out the centre should cover certain allowances established by law [See Resolution 11 February 2005, General Department for Integration of the Immigrants, by which the maximum quantities regarding the economic helps for the beneficiaries of the Reception Centres for Refugees are updated]: The quantities are: Personal expenses and transport Asylum seeker: 46 euros/month Couple: 78 euros/month Minors under 18: 17/ euros/ month/ person Child over 18 and other relatives: 30 euros/month/person Transport: depends on the cost of a monthly ticket Wardrobe Clothes and shoes: 62/season/person Expenses for birth of a child: 162 euros/child Training and social and cultural skills Language courses: depending on the specific costs/person Nursery: depending on the specific costs for every child Cultural activities: depending on the specific costs Didactic school Material: 130 euros course/child Expenses for their support outside the centre One person: the minimum official wage, around 560 euros/month Family: Twice the minimum official wage, around 560 euros/month Family numerous: Twice and a half the minimum official wage, around 560 euros/month Q 12. B. Can the reception conditions in kind, money or vouchers be considered as sufficient to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence as requested by article 13, 2 of the directive (which is a mandatory provision but leaves a certain space to Member States)? In order to help to assess the respect of this rule when reception conditions are provided in money, include if necessary in your answer points of comparison with the minimum amount of social aid guaranteed for nationals in your Member State. The reception conditions in kind, money or vouchers can be considered sufficient, taking into account that all services are basically covered within the reception centres. In addition certain centres provide psychological assistance and if the centre does not provide the service the person will be sent to whoever may provide him with the proper treatment for free. Asylum seekers who need it, get their material needs covered through the administration and specialized NGOs that receive funding from the government. Referrals are made by asylum State organs. Reception Conditions National Reports 1367

10 Notwithstanding the situation of asylum seekers who are outside the Reception Centres for Refugees because of lack of vacancies is precarious 681. Spanish legal basis regarding Article 13(2) of the Reception Conditions Directive is Article 15 of the Asylum Regulation (as amended by the Royal Decree 2393/2004, of 30 December): 1. Asylum seekers, provided that that they do not have economic means, shall be able to benefit from the social, educational and health-related services rendered by the competent agencies of the Public Administration, within the means and budget availabilities of these agencies, to ensure a standard of living adequate and capable of ensuring their subsistence. The benefits given could be modulated when the asylum application is pending of admission to the normal Refugee Status Determination procedure, guaranteeing in any case the coverage of the basic needs of the asylum seekers. In general, access to education, to health care, to social security and to social services will be regulated, respectively, according to the dispositions in articles 9, 12 and 14 of the Organic Law 4/2000, of 11 January, on the Rights and Freedoms of foreigners in Spain and their social integration (in the wording given by the Royal Decree 2393/2004, of 30 December) ( ) 3. In providing the services which are referred to in paragraph 1 of this article, will be taken into consideration the specific situation of persons with a specific vulnerability, such as minors, unaccompanied minors, senior citizens, pregnant women, one-parent families with minor children, and persons who have been subject to torture, rape, or other serious form of psychological, physical o sexual violence, according with the directives that appear in the international recommendations used in harmonizing the treatment of these social groups of refugees or displaced individuals (in the wording given by the Royal Decree 2393/2004, of 30 December). 5. PROCEDURAL ASPECTS Q.13. Q 13. A. Does the national legislation specifically provide that a request for international protection is presumed to be under the Geneva Convention unless explicitly requested otherwise? (see article 2, b which is a mandatory provision) The national legislation establishes that an application for asylum is an application for the status of refugee under the Geneva Convention (article 2 Asylum Law 1994), unless explicitly required another status. At this moment the draft of a new Asylum Law is under discussion. This new Law is expected to transpose the Qualification Directive. It could introduce a change in this question. Unfortunately we have had still no access to the draft. Q. 13. B. Explain if the scope of application of reception conditions is extended to other asylum seekers than refugees in the sense of the Geneva Convention, in particular to persons asking for subsidiary 681 Information provided by NGOs. Reception Conditions National Reports 1368

11 protection or to other forms of protection like humanitarian statuses (see article 3, 4 which is an optional provision)? If not, explain briefly which the differences between these special regimes and the directive are. There are no different reception conditions. Asylum seekers and beneficiaries of subsidiary protection are covered by the legislation on Reception conditions. Q. 13. C. Are there specific provisions in national law for reception conditions in case of diplomatic or territorial asylum requests submitted through a diplomatic or consular representation (see article 3, 2 which is an optional provision)? There are not specific provisions in national law for reception conditions in case of diplomatic or territorial asylum requests submitted through a diplomatic or consular representation. Article 4.1 of the Ministerial Order of 13 January 1989 establishes that the beneficiary of the Reception Centres for Refugees must be a foreigner that has presented an asylum request in Spain (that means, at the border or within the territory). Each person can apply for asylum at the Spanish embassy if he/she is in a third country, different from his/her country of origin. In case of risk for the applicant article 16 of 1995 Asylum Regulation provides that the Interministerial Commission on Asylum and Refuge (Comisión Interministerial de Asilo y Refugio or CIAR), based on a proposal of the Asylum and Refugee Office (Oficina de Asilo y Refugio or OAR), can decide to move him/her to the territory of Spain. Q.14. Are reception conditions available as from the moment one asylum application is introduced? How is article 13, 1 which is mandatory legally understood? Do asylum seekers have to satisfy any other condition in order to get reception conditions? The article 13(1) of the Reception conditions Directive makes clear that the reception conditions are available to applicants when they make their application for asylum. Nevertheless, the recently modified article 15(1) of the 1995 Asylum Regulation establishes the possibility to modulate the social, educational and health-related services, when the asylum application is pending admission to the normal Refugee Status Determination Procedure. It has to be noted that prior to the December 2004 amendment of this article, only asylum seekers whose claims had been admitted to the procedure had access to benefits. While the new formulation opens the benefits to all asylum seekers, keeps the possibility of modulating them pending admission of the applicant. The contradiction goes further: article 13(2) establishes that the material reception conditions should be capable of ensuring the subsistence of applicants. It is difficult then to understand the standard set in article 15(1) of the Asylum Regulation when it says that the modulation of benefits for asylum seekers pending the admission of their application to the normal Refugee Status Determination procedure, in any case should cover their basic Reception Conditions National Reports 1369

12 needs. The only possible explanation is that the modulation could operate only in cases where the benefits for applicants admitted to the normal Refugee Status Determination procedure, are above the standard of ensuring their subsistence 682. Article 15 of the Asylum Regulation (as amended by the Royal Decree 2393/2004, of 30 December) provides that: 1. Asylum seekers, provided that that they do not have economic means, shall be able to benefit from the social, educational and health-related services rendered by the competent agencies of the Public Administration, within the means and budget availabilities of these agencies, to ensure a standard of living adequate and capable of ensuring their subsistence. The benefits given could be modulated when the asylum application is pending of admission to the normal Refugee Status determination procedure, guaranteeing in any case the coverage of the basic needs of the asylum seekers. ( ) (underlined added). However, as mentioned above, asylum seekers don t have access in the practice to reception conditions while they are not admitted to the normal refugee status determination procedure. Q.15. Explain when reception conditions end, for instance after refusal of the asylum request (include in your answer the link with the right of appeal against a decision of refusal of the status, in particular the question of its suspensive effect) Q.16 Are there special rules or practices regarding reception conditions in case of successive applications for asylum introduced by the same person? The mere repetition of an application for asylum already rejected in Spain is a reason not to admit the application to proceedings (article 5(6)(c) of the Law on Asylum of 1984 reformed in 1994). The only exception occurs when new circumstances arise in the country of origin which may entail a substantial change to the basis of the application. Q.17. Information of asylum seekers about their rights and obligations in terms of reception conditions, in particular about established benefits (see article 5 which is too large extend a mandatory provision; do not confuse this question with the information to be provided to asylum seekers about the asylum procedure): Q. 17. A. Are asylum seekers informed, and if yes about what precisely? Article 5 Asylum Regulation of 1995:. 2. Those asylum-seekers who are inside Spanish national territory will receive information on the need to provide evidence to support their request 682 Information provided by UNHCR. Reception Conditions National Reports 1370

13 from the governmental agency that they have addressed. This agency must also provide information on the rights to which asylum-seekers are entitled under Law 5/1984 regulating refugee status and the right to asylum. In particular, they are to be informed of the right to have an interpreter and legal counsel. Likewise, the authority to which they have submitted their request will provide the asylum-seeker with medical attention, when appropriate, and will provide guidance regarding the currently-existing social services intended to cover the asylum-seeker s immediate human needs (emphasis added). Asylum seekers are informed as soon as they allocated to a Reception Centre and the latest as soon as they arrive into the Centre. At the border point (and as mentioned before, the most asylum claims are submitted in Madrid airport), asylum seekers are informed about the asylum procedure, social workers canalise the demands to the police (change of lawer, medical demands,.), they are informed about their rights and obligations during their stay at the transit zone. Asylum seekers allowed to enter the country are referred to an emergency reception point at Madrid local branch where they are counselled. They stay in a hostel for a short period and when clinical analysis results are ready they are referred to a reception centre like those who apply for asylum within the territory. During this period they are informed about the Spanish health care and welfare system, the asylum procedure, their rights and duties, the necessity to be registered with the local population register ( padrón ) in order to be entitled to benefit from social benefits and the public health care system; if necessary, they can receive psychological support, etc. 683 Q. 17. B. Is the information provided in writing or, when appropriate, orally? The information is generally provided in writing in different languages as soon as they get into the reception centre. The information is provided orally when the information sheet is not available in a language understood by an asylum seeker. Q.17. C. Is that information in general provided in a language understood by asylum seekers? Specify the list of languages in which it is available Yes, there is an information sheet in different languages (French, English, Russian, Armenian, Rumanian, Georgian, Arabic and Spanish). If the asylum seeker has another language, he/she will be informed orally by an interpreter684. At the public Centres for Refugees the languages are French, English, Spanish, Arabic and Russian. 683 Information provided by the Spanish Red Cross, at Information provided by NGOs. Reception Conditions National Reports 1371

14 Q. 17. D. Is the deadline of maximum 15 days respected? The deadline of maximum 15 days is respected when the asylum seeker lodge its application at the Asylum and Refugee Office (OAR) or at Barajas airport. In and outside Madrid the written information is provided at the time of lodging the asylum application 685. At the 4 public Centres for Refugees the maximum is 10 days. Q.18. Information of asylum seekers about the existence of organisations or groups promoting their interest and defending their rights (see article 5 which is to a large extend a mandatory provision): Q. 18. A. Is there a list of organisations dressed by the authorities and if yes is it comprehensive? Is this in particular the case about the possibilities to get legal assistance and health care? In order to get legal advice the Asylum and Refugee Office (OAR) provides an information brochure where four NGOs (Spanish Red Cross, CEAR-Spanish Commission for Refugee Assistance, Rescate and ACCEM- Association of Spanish Catholic Commission for Migrations), the UNHCR Madrid Office and the details of the General Department of Immigrant Integration are mentioned. Q. 18. B. Is the information provided to the asylum seekers, and if yes, in writing or, when appropriate, orally? As mentioned before there is an information sheet in different languages (French, English, Russian, Armenian, Rumanian, Georgian, Arabic and Spanish). If the asylum seeker has another language, he/she will be informed orally by an interpreter. Q. 18. C. Is that information in general provided in a language understood by asylum seekers? Specify if possible the list of languages in which it is available. As mentioned before, they are informed by writing in through an information sheet in different languages (French, English, Russian, Armenian, Rumanian, Georgian, Arabic and Spanish). If the asylum seeker has another language, he/she will be informed orally by an interpreter (information provided by NGOs). Q. 18. D. How many organisations are active in that field in your Member State? Spanish Red Cross, CEAR Spanish Commission for Refugee Assistance, Rescate Internacional and ACCEM Association of Spanish Catholic Commission for Migrations, and the UNHCR Madrid Office. 685 Information provided by UNHCR. Reception Conditions National Reports 1372

15 Q.19. Documentation of asylum seekers (see article 6): Q.19. A. What kind of document is delivered to the asylum seeker? Explain the legal value of this document (just a certification of the status as asylum seeker or also prove of identity?) (see 1 of article 6 which is a mandatory provision) Article 13 of Asylum Regulation provides: 1. The asylum-seeker will be provided with a duly stamped receipt of his request for asylum. He must attach this receipt to his passport, thereby enabling him to remain in Spain for a term no longer than sixty days. He must notify the competent authority whenever he changes his place of residence. 2. Once the request for asylum has been admitted to the regular refugee status determination procedure, authorization to remain in the country will be accredited through the issuance of a document to the asylum-seeker, thereby enabling him to remain inside Spanish territory while his file is being processed. The practice is that the receipt and the document are given at the time of formalizing the asylum application and of the notification of admission to the procedure, respectively. Q.19. B. Are there situations or specific cases in which another equivalent document or even no document is issued? (in particular is there an exception for procedures to decide on the right of the applicant legally to enter the territory as made possible by 2 of article 6)? Q.19. C. For how long is this document in principle valid and is it necessary to renew it after a certain period? Article 13 of Asylum Regulation establishes that: 1. The asylum-seeker will be provided with a duly stamped receipt of his request for asylum. He must attach this receipt to his passport, thereby enabling him to remain in Spain for a term no longer than sixty days. He must notify the competent authority whenever he changes his place of residence. 2. Once the request for asylum has been admitted to the regular refugee status determination procedure, authorization to remain in the country will be accredited through the issuance of a document to the asylum-seeker, thereby enabling him to remain inside Spanish territory while his file is being processed. (underlined added). Q.19. D. What is the deadline for the delivery of that document? Is the mandatory deadline of 3 days set by article 6, 1 respected 686? The mandatory deadline of 3 days is respected in the practice. Asylum seekers usually receive the document when they apply for asylum or when they receive the notification of admission to the normal refugee status procedure. Reception Conditions National Reports 1373

16 Q.19. E. Is it possible for an asylum seeker to get a travel document for serious humanitarian reasons (see 5 of article 6 which is an optional provision)? Q.19. F. Is there a central system of registration of asylum seekers and is it or not separate from the registration of aliens? If yes, describe it briefly (content) and indicate in particular if it is an electronic database. Q.20. Residence of asylum seekers : Q.20. A. Is in principle an asylum seeker free to move on the entire territory of your Member State or only to a limited part of it and in case, which part? (see article 7, 1 which is a mandatory provision) The asylum seekers who lodged their applications within the country or at borders and have been admitted to the regular Refugee Status Determination procedure, have freedom of movement. Q.20. B. About the place of residence (see 2 of article 7): explain to which extend the person is free to choose her residence and if this depends of the stage of the asylum procedure (for instance before and after admissibility); if there are constraints limiting the choice, explain which ones and their reasons (for instance processing of application, attribution of reception conditions, ). Article 5 of the Asylum Law: Consequences of the request for asylum at the border: 7. ( ). While the request for asylum or for re-examination is being processed, the asylum-seeker must remain at the border point. Adequate facilities will be provided for this purpose. ( ) Regarding asylum applications within the territory Article 14 of the Asylum Regulation establishes: (Precautionary measures) If the asylum-seeker does not possess the official documents required to reside in Spain, the Ministry of Justice and of the Interior may set an obligatory place of residence for the individual concerned until a final decision on his file is handed down. The asylum-seeker must be informed of the decision to set an obligatory place of residence by the Governor of the province in which he is located. Likewise, for reasons of public safety, the Minister of the Interior has the authority to adopt any of the measures stipulated in article 6 of Constitutional Law 7/1985 (July 1) regarding the Rights and Freedoms of Aliens in Spain. (emphasis added). It should be noted that this article has never been used Information provided by UNHCR. Reception Conditions National Reports 1374

17 Q.20. C. About the place of reception (meaning where the asylum seeker has to stay to benefit from reception conditions) (see 4 of article 7): explain which are the general rules about the determination of this place (to which extend are the decisions determining the place taken individually and do they take into account the personal situation of the asylum seeker?) and to which extend the person is free to choose it and if it depends of the stage of the asylum procedure (for instance before and after admissibility); if there are constraints limiting the choice, explain which ones and their reasons (for instance attribution of reception conditions, processing of the application, ). Madrid airport is the point in the country where most asylum claims are submitted. The asylum seekers allowed to enter the country are referred to an emergency reception point at Madrid local branch where they are counselled. They stay in a hostel for a short period and when clinical analysis results are ready they are referred to a reception centre like those who apply for asylum within the territory. When applicants apply for asylum within the territory, the Spanish Red Cross local branches are responsible for all the clinical analyses and the referral to a reception centre is made by the headquarters. When asylum seekers have family members living in Spain they can choose not to stay at the reception centre but to be hosted by their families. The can use the reception centres services or the ones placed at the Spanish Red Cross local branches. They can receive financial support for 6 months, max. 1 year the same period as if they were at a reception centre 688. The accomodation of an asylum seeker in a Reception Centre is not mandatory. According Article 4 of the Ministerial Order of 13 January 1989 regulating the Reception Centres for Refugees in order to be accepted in these Centres it will be required, besides the availability of places, to fulfil the following requisites: a) Be a foreigner. b) Have presented an asylum request or for the recognition of the refugee status in Spain, and that the administrative file has not been decided upon. c) Lack of economic means for the needs of his/her needs and of his/her family. ( ). An asylum seeker will be informed and adviced about the Reception Centres for Refugees by the Unit of Social Work placed at the OAR (Asylum and Refugee Office). Afterwards he/she lodge his/her application to be admitted in a Reception Centre. After an interview and taking into account the situation of the applicant, the Reception Centre makes a proposal to the General Department for Integration of the Immigrants, which is the responsible of the final decision of admission (Article 21 of the Resolution 6 July 1998). 688 Information provided by the Spanish Red Cross at Reception Conditions National Reports 1375

18 According to Article 13 of the Resolution 6 July 1998 special cases will have priority (for example, couples with children under 18, persons or families with a serious risk for political reasons in their country of origin, persons with psychosocial problems, etc.). Q.20. D. If all asylum seekers are not placed in accommodation centres because of capacity limits, explain how the persons are distributed between accommodation centres and other accommodation facilities (which authority takes the decisions, on the basis of which elements, can that decision be appealed by the asylum seeker, ) Q.20. E. How can an asylum seeker ask to leave temporarily the place of residence or of reception or an assigned area? How is the individual AND impartial character of the decision ensured? (see 5 of article 7 which is a mandatory provision) The accomodation of an asylum seeker in a reception centre is not mandatory. An asylum seeker has the duty only to inform the competent authority of any changes of address as soon as possible (article 4(6) Asylum Law and article 9(2) and 13(4 )of Asylum Regulation). Q.21. Q.21. A. Do rules on reduction or withdrawal of reception conditions exist in internal legislation and if yes in which cases (mention in particular if there are cases not foreseen by article 16, 1 and 2 which are optional provisions)? Distinguish in your answer between cases of reduction and withdrawal and explain which conditions can be reduced and if access to emergency health care is always ensured as requested by article 16, 4, last sentence. There are no dispositions in the Asylum Law or Regulation on the withdrawal of benefits for asylum seekers. The only reference to this matter refers to the possibility to modulate the benefits for asylum seekers pending their admissibility to the normal Refugee Status Determination. The recently modified article 15(1) of the Asylum Regulation establishes the possibility to modulate the social, educational and health-related services, when the asylum application is pending admission to the normal Refugee Status Determination Procedure 689. However it must be taken into account that asylum seekers don t have reception conditions before their applications are admitted to the normal refugee status determination procedure (admissibility phase). Access to emergency health care is always ensured. 689 Information provided by UNHCR. Reception Conditions National Reports 1376

19 Q.21. B. Has article 16, 2 dealing with refusal of reception conditions for unreasonably late applications for asylum been transposed by your Member State (or was this case already applicable before transposition)? Are there cases in practice? Article 16(2) has not been transposed. The 1995 Asylum Regulation mentions since its approval that the asylum seeker has one month to apply for asylum within the territory (Article 7). Q.21. C. How is it ensured that decisions of reduction or withdrawal are taken individually, objectively AND in particular impartially (for instance through and independent arbitrator) (see article 16, 4 which is a mandatory provision)? Q.21. D. Is statement 14/03 adopted by the Council at the same moment as the directive respected (see the document attached to our sending)? Q.21. E. Are there already administrative appeal decisions or judgements on cases of reduction, withdrawal or refusal which have been taken, and if yes, what has been the outcome? Q.22. Q.22. A. Appeal against a negative decision relating to the granting of benefits or based on article 7 (see article 21 which is a mandatory provision): indicate against which decision an appeal can be introduced, describe the system of appeal in general and include in particular in your answer the information given to asylum seekers about possibilities of appealing, deadline for appealing, if the appeal has or not a suspensive effect, if there are different steps (for instance first an administrative appeal and in particular if the guarantee of an appeal before a judicial body in the last instance is respected)? There are no legal or by-legal provisions concerning appeals on negative decisions on grant of benefits or on reception conditions, except on cases of article 7 paragraph 3 of the Directive (confinement of the asylum seeker in a particular place).the confinement or detention shall be decided by a judge, and hence appeals are possible according to the general procedural laws. The confinement or detention of asylum seekers normally takes place in the context of a trial for the expulsion or devolution of the asylum seeker that has entered or been caught in the process of entering illegally Spain. Normally the judge will decide on the confinement or detention prior to the lodging of the asylum application, which usually is made in the Internment Centre for Foreigners. In these cases, the admissibility procedure, which in Spain can take up to a maximum of two months, is shortened in order to end before the 40 days maximum confinement. If the asylum seeker is admitted to the procedure he/she is let free Information provided by UNHCR. Reception Conditions National Reports 1377

20 Q.22. B. Explain which are the possibilities for asylum seekers to benefit from legal assistance when they introduce such an appeal (see article 21, 2 which is a mandatory provision but leaves space to Member States)? Articles 8(4) and 19(2) of Asylum Regulation establish the right to legal assistance for asylum seekers. Article 2(f) of Organic Law 1/1996 of 10 January, and article 22(1) of Aliens Law establish free legal assistance for asylum seekers. Q.22. C. Are there already administrative appeal decisions or judgements which have been taken and if yes, which are the main important ones? At this moment there are no administrative decisions or judgements. Q.22. D. Is a mechanism of complain for asylum seekers about quality of receptions conditions in general (even if they are not personally concerned) organised? If yes, before which authority? Is it linked to the system of guidance, control and monitoring of reception conditions (see below question n 39)? If asylum seekers would like to put forward a complain they could send a letter addressed to the General Department for Integration of the Immigrants, the body in charge and dependant of the Ministry of Labour and Social Affairs. The Subdirección General de Intervención Social (at the General Department for Integration of the Immigrants depending on the Labour and Social Affairs Ministry) is the office responsible for management of reception conditions. The Asylum and Refugee Office (OAR) is responsible for housing. The Social Work Unit (Unidad de Trabajo Social) receives the complains. This Unit belongs to the Labour and Social Affairs Ministry (MTAS), although it is placed at the Asylum and Refuge Office (OAR) (which belongs to the Ministry of Interior). 6. RIGHTS AND OBLIGATIONS OF ASYLUM SEEKERS Q.23. Family unity of asylum seekers: define how a family is defined in relation with article 2, (d) which is a mandatory provision and explain how housing is provided to a family (see articles 8 which is a mandatory provision but leaves space to member States and 14, 2, (a) which is a mandatory provision). Article 5(7) of the 1994 Asylum Law provides for asylum applications lodged at border that: 7. ( ). While the request for asylum or for re-examination is being processed, the asylum-seeker must remain at the border point. Adequate facilities will be provided for this purpose. Reception Conditions National Reports 1378