Updated: Nov 14
Author: Sandra Akushika
Date of publication: 05/09/2022
I feel the most devastating situation one could ever experience is to leave your own country by force. This mainly happens when you no longer feel safe there. However, the scariest part is moving to a foreign country where you feel safe, but there is a guarantee of protection. So first, let us explore who is a refugee by Law and the kind of protection given to them.
Who is a Refugee?
Internationally, a refugee is a person with the fear of being persecuted. This might happen because of their race, religion, nationality, membership in a particular social group or political opinion. Refugees may request asylum in a safe country. Thus, they have the right to seek refuge in another country if their State's authorities cannot provide adequate protection.
As a matter of fact, the type of protection guaranteed in a safe country is international protection. This is provided under the principle of non-refoulement. Thus, no one can be deported, returned or extradited until the protection request is resolved. In addition, there is a European rule known as the "Dublin Regulation". This establishes that the first Member State in which a person arrives and issues a visa or residence permit is responsible for the asylum of this person. Therefore, if one is an asylum applicant in Spain, one cannot do so in another country later. So now, let us narrow it down to the Spanish refugee protection. Spain is the fourth highest among European countries regarding the number of asylum applications.
THE SPAIN REFUGEE REGULATION
The current regulation of the right to asylum in Spain, dates back to the 19th century. In 1984, regulating the right to asylum and refugee status developed the mandate in section four of article 13 of the Constitution of Spain.
Usually, international regulations become national laws. This is because international laws are void if there isn't a member state to implement those laws. Actually, a European asylum policy developed, starting with the Amsterdam Treaty of 1997, produces an extensive list of community regulations. These must be incorporated into the national legal system.
Some of these regulations are the Council Directive 2004/83/EC of April 29. These establish minimum standards relating to the requirements for the recognition and status of third-country nationals or stateless persons. And most of the member states follow this directive.
Moreover, one is a refugee at Spain's borders following the international provisions mentioned in earlier paragraphs. This takes place under the Spanish Law 12/2009 regulating the right to Asylum and Subsidiary Protection. Note that the Spanish Law explicitly includes people who flee out of fear of gender-related persecution and persecution based on sexual orientation or gender identity. Thus, persecutions against LGBTI – lesbian, gay, bisexual, trans and intersex individuals.
Agents of protection.
They may provide protection:
a) the State, or
b) parties or organisations, including international organisations, control the State or a considerable part of its territory.
For instance, the International Organisation for Migration, known as IOM under the United Nations System, has been the leading inter-governmental organisation since 1951. The IOM promotes humane and orderly migration management with its presence in most member states. In addition, since 2001, the IOM Development Fund has provided an extensive resource to strengthen the Member States' migration management capacity.
In general, refugee protection exists when the above agents mentioned adopting reasonable and practical measures. These mainly aim to prevent persecution or suffering severe harm. Hence, member states establish an effective legal system for the investigation, prosecution and sanction of actions constituting persecution or severe damage.
The international protection granted with the right of asylum and subsidiary protection consists of the non-return or expulsion of the people recognized as refugees. Also, the adoption of the measures contemplated in article 36 of Organic Law 12/2009 regulating asylum rights and subsidiary protection, Articles 3, 5 and 36 (Spain). Furthermore, as mentioned earlier, the regulations developed are from the European Union's rules and the international conventions ratified by Spain.
Right To Request International Protection And The Procedure Involved
1. Non-EU nationals and stateless persons in Spanish territory have the right to request international protection in Spain.
2. For its exercise, applicants for international protection will have the right to health care and free legal assistance. This will extend to the formalisation of the application and the Procedure. The terms are provided in Spanish legislation. The legal assistance referred to in the previous paragraph will be mandatory when the requests are formalised. Also, they need to follow the Procedure indicated in Article 21 of this Law.
3. The application's presentation will entail the assessment of the circumstances that determine his or her status and the granting of subsidiary protection. The applicant will be duly informed of this point.
4. All information related to the Procedure, including the request presentation, will be confidential.
The 1951 Geneva Convention
The Amsterdam Treaty of 1997