Spain does not currently have any legal channels for people fleeing war and persecution to take refuge in its territory. That is why the men, women and children whom, according to international law and Spanish law, the State is obliged to take in, are left in the hands of gangs or risk their lives at sea, as we are now seeing in the Canary Islands. But the association Stop Mare Mortum has just managed to get the Supreme Court to recognise a small door that could provide an answer to some of the cases that have so far come up against the wall of migration policy: the court has agreed with the entity, against the criteria of the State Attorney, that victims of war and persecution must be able to ask for protection in Spanish embassies or consulates when they are in a third country.
This would be a way out, for example, for the 2,500 people from Mali, who suffer one of the entrenched wars of the Sahel, who embark in Senegal or Mauritania on the dangerous route to the Canary Islands. They could present their requests for asylum to the embassies in Dakar or Nouakchott and wait for the response from the Spanish authorities, who, if they met the requirements, could give them a visa that would allow them to arrive in Spain by plane and start to rebuild their lives.
One of the problems is that the current asylum law in force in Spain does not have a regulation to develop it. The law dates back to 2009 - it was passed at the end of Socialist José Luis Rodríguez Zapatero's term in office - and it was expected that in six months its regulations would be approved. But, almost eleven years later, this regulation still does not exist. One of the few legal channels of entry is provided for in article 38, which says that asylum seekers who see their physical integrity in danger may ask for protection from Spanish embassies and consulates of a country other than their country of origin.
A refugee family separated for three years
Since 2017, Stop Madre Mortum has made it easier for refugees trapped in Greece to ask the Spanish embassy in Athens for protection under Article 38, and one of these cases has reached the Supreme Court. This is a Kurdish-Irakian family that arrived in Greece and then took advantage of the EU refugee relocation system. The woman and daughters were taken in by Spain but the man was not. Neither did the Greek authorities offer him protection, and with the advice of the entity the man submitted an asylum request to the Spanish embassy in Athens which was never answered. He appealed to the High Court in March 2019, which agreed with him. But the State's attorney filed an appeal, claiming that the regulations were not developed. Three years later, the Supreme Court ordered the government to study the father's request for asylum, and everything points to the family being able to be reunited.
"This ruling is a milestone because it tells the government that asylum requests submitted to embassies and consulates cannot be ignored: that the authorities have an obligation to respond and that article 38 is an appropriate way for those who meet the requirements of the law: it is a procedural victory because we activate a legal way of access," says David Moya, a law professor at the University of Barcelona. "It's much more reasonable than forcing people to risk their lives at sea and then processing petitions that may end up being rejected.
For Moya, "the State lawyer has been trying to prevent this route from being activated and forming a regulated mechanism accessible to asylum seekers". "This does not mean that now anyone can ask for a transfer from the embassies, but it does mean that there is a mechanism and criteria to ask for it. And that the government will have to develop and delimit it. And also, and very importantly, that the administration is responsible for acting in accordance with the law to give effect to this ruling, doing so in good faith and with full cooperation. Let us not forget that we are talking about situations where people's lives and integrity are at stake."
Sònia Ros, from the legal team at Stop Madre Mortum, says that the organisation will ensure that the Spanish government sends instructions to embassies and consulates to deal with asylum requests.