Our colleague Nuria Hernández García has attended the XX Congress of the Asociación de Constitucionalistas de España (ACE) organized by the University of Extremadura and held at the San Francisco Cultural Complex (Cáceres).
This publication consists of the first of three chapters to be published on the communications made by our colleagues attending the XX Congress of the Asociación de Constitucionalistas de España (ACE), Nuria Hernández García, Susana Sanz Caballero, Marta Pérez Gabaldón and Joaquín Marco Marco, which deal with the Rule of Law.
Nuria Hernández has participated in Roundtable 1: Rule of Law and Fundamental Rights in which she has presented her paper “The Rule of Law and Access to the Right of Asylum: the case of Spain and Morocco.”
In this work our colleague has started from the interconnection and interdependence that exists between the concepts of Rule of Law, Human Rights and Democracy to later delve into the relationship between Rule of Law and fundamental rights. Specifically, she has focused on the right to asylum understood in relation to the elements of national security and legitimate interest that States have to protect their borders. For this reason, she has used two case studies, first, access to the right to asylum in Spain and, secondly, the case of Morocco to determine how the externalization of borders can affect access to asylum and can create a dilemma between the right to asylum and the Rule of Law.
1.Rule of Law and Fundamental Rights: the right to asylum
Firstly, Nuria Hernández has explained how the Rule of Law is configured around fundamental rights and how they are embodied in the Constitution. To this end, she has referred to the dual dimension of the Rule of Law, i.e. the formal dimension understood as the submission of Power to Law (the only function of Law is to generate security or stability), and the material dimension referring to the content of the rules and their qualification.
It is within the material dimension that fundamental rights are integrated, in the words of our colleague, “a State that is a State governed by the rule of law must recognize and guarantee the fundamental rights embodied in the Constitutions, which include a specific section on the recognition and protection of rights.”
In this sense, in the Spanish Constitution, the right to asylum constitutes a fundamental right, as set forth in Art. 13.4 and subsequently developed by Law 12/2009 of October 30, regulating the right to asylum and subsidiary protection and the recently approved Royal Decree 220/2022 of March 29, approving the Regulations governing the system of reception in matters of international protection.
In addition, at the international level this right is recognized in:
- Art. 14 of the Declaration of Human Rights (UDHR)
- The 1951 Geneva Convention
- The 1967 New York Protocol
- Art. 18 of the Charter of Fundamental Rights of the European Union
- Chapter 2 “Policies on Border Controls, Asylum and Immigration” (Title V) of the Treaty on the Functioning of the European Union (TFEU)
“THERE IS A RIGHT TO SEEK ASYLUM, HOWEVER, THERE IS NO HUMAN RIGHT TO ASYLUM, BUT IT IS CONDITIONED TO THE EXISTENCE OF A LEGAL NORM, TO THE RECOGNITION BY THE STATES AND TO THE RIGHTS THAT THE STATES CONSECRATE FOR THE REFUGEES”
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Nuria Hernández has clarified that in practice the institutions of asylum and refuge are equated and that they only recognize the right to asylum for a specific group, i.e., refugees, in accordance with the norms of international law. Therefore, both UNHCR and numerous authors understand that when States recognize refugee status, it is a declaratory and not a constitutive issue.
In the case of Spain, in order to recognize such status, it must follow a review process whose legal framework is configured by the Geneva Convention, the Common European Asylum System (CEAS) and its own internal regulations. This procedure serves to limit the actions of the State and to ensure that it complies with certain guarantees, where the principle of non-refoulement provided for in Art. 78 of the TFEU becomes important.
According to this principle “no State may return a refugee, under any pretext whatsoever, to another country (neither to the country of origin nor to a third country) where he or she is at risk of persecution”, so that in situations where refugee status is not recognized when all the requirements are met, this principle is not complied with.
2.Access to the right of asylum in Spain
Dr. Hernández has explained that both migration policy and refugee and asylum policy are part of the Area of Security, Freedom and Justice (AFSJ), a competence that the EU shares with its Member States. However, the competence on national security issues is exclusively that of the States as stated in the EU Treaty and as reflected in the CEAS (it leaves room for States to base their decisions on access to this right of asylum on national security grounds). This means that there are no common rules and problems of coordination of competences arise.
As for the right to asylum, it has a dual dimension:
a) The protection of human rights in accordance with international and European standards.
b) The legitimate right of every State to seek and maintain peace and security within its territory, as well as to establish the conditions for foreigners wishing to reside in it.
What affects access to the right to asylum in Spain?
I. The regulations
The CEAS is composed of a set of EU directives and regulations governing this right. With respect to Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and measures promoting a balance of effort between European Union countries, as it is addressed to a specific group of persons, there is no case-by-case study (as with refugees).
According to the Dr., “in practice it does not respond to access to the right of asylum, and it is really an extra and independent protection of the right of asylum and therefore it is not directly demandable by displaced persons, as international protection is”, so that she understands that “the problem in access to the right of asylum comes from the management of borders and the regulations relating to determine which State is responsible for processing the asylum application, those known as EURODAC and Dublin.”
These two regulations make up the CEAS and are the first step to be able to access asylum, they determine which State is responsible for processing the application. However, in the absence of legal and safe ways to seek asylum in the EU, the usual way to access a Member State is by irregular border crossing.
Following the EURODAC reform proposal endorsed by the European Council on June 22, 2022, Member States will set up an independent monitoring mechanism to ensure that fundamental rights and the principle of non-refoulement are respected throughout the process.
In the case of Spain, the process of recognition of international protection to a refugee begins when he/she applies for it, being an indispensable requirement to do so in national territory. However, in relation to asylum, Art. 38 of the Spanish Asylum Law establishes a legal and safe way to apply for international protection through Spanish Embassies abroad.
II. The management of access
Nuria Hernández has raised the following question “Can asylum seekers who meet the required conditions ensure their arrival on national territory? The answer is no.” For this reason, irregular routes of entry to the European Union are used where the “Europe fortress” lies along with the pacts that their States have with other neighboring countries of transit or origin.
In this regard, the majority of irregular entries occur through five routes:
- The Balkan route
- The Western African route to the Canary Islands
- The three main Mediterranean routes: the western, central and eastern routes.
Regarding the Mediterranean routes, the main countries affected and which are external borders for the entire EU are Spain, Italy, Greece, and Malta. The western route was the most used from 2018 accumulating more than 50% of the arrivals through the Mediterranean, until 2019 when the Union approved an aid of 140 million euros for border management in Morocco along with 36 million directed to Spain to manage its southern border.
The externalization of borders has become a common practice within the European Union. Dr. Hernández explained that immigration has always been one of the main issues to be dealt with in bilateral Spanish-Moroccan relations. In fact, in recent years there have been increasing warnings about the instrumentalization of immigration by Morocco, which poses a risk to access the asylum system.
“MOROCCO HAS BECOME A BUFFER STATE FOR IRREGULAR IMMIGRATION TO EUROPE, WHERE REFUGEE AND ASYLUM MANAGEMENT HAS BEEN SUBORDINATED TO MIGRATION CONTROL”
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As indicated by our colleague, the problem of this externalization is the empowerment received by the countries of origin or transit, in the case of Morocco it receives funding, support in its domestic policy and concessions regarding Western Sahara. The consequence of this is that in 2022 the Western Mediterranean route was the least used in relation to the rest of the Mediterranean routes, only in this route the figures decreased compared to the previous year.
The policy followed by Spain has consisted of paying Morocco 30 million euros over four years in direct aid to deploy border surveillance operations and fight against irregular immigration, immigrant smuggling and trafficking.
3.Conclusion
In the access to the right of asylum, security prevails over fundamental rights and this is due to “the lack of coherence and normative development, of concretion in regulations and of course the absence of legal and safe ways to apply for asylum show that it is very difficult and dangerous to access the right of asylum.”
Nuria Hernández has ended her paper by clarifying that although we cannot speak of a direct denial of the right to seek asylum, there is an indirect action that ultimately harms refugees.
“If in parallel other options are not established to promote or ensure the application for asylum through legal and safe channels, for example, in embassies or consulates in an effective manner, there is a shirking of this responsibility towards refugees contrary to international, European and national law. The State has the right to protect its borders, but it has not granted asylum because it has prevented them from applying for it, shirking its responsibility.”
