Spain

Spain’s record on accession to relevant international instruments is relatively good, having recently acceded to the 1961 Convention. However, it is not party to key regional instruments, including the European Convention on Nationality. Some data on the stateless population in the country is available, but there are gaps and inconsistencies, and data on stateless people held in immigration detention is not published. Spain’s statelessness determination procedure presents some elements of good practice, but there are also gaps. Access is facilitated to some extent, but it is not possible to apply from detention, and the application must be made in writing in Spanish via a technical form. Legal aid is limited, there is no right to an interview and some protection may be granted during the procedure, but there are delays in access to social assistance. If granted, stateless status entails indefinite residence, a work permit, and most Convention rights, but naturalisation is not facilitated.

Stateless people may be at risk of arbitrary immigration detention in Spain, as there is no requirement that a country of removal is identified prior to detention, statelessness is not routinely identified in detention decisions, many more people are detained for removal than are actually removed, and there are barriers in practice to access to legal aid, interpreters and effective remedies. However, in many ways, Spain is an example of good practice when it comes to the prevention of statelessness. Children born in Spain who would otherwise be stateless acquire nationality automatically at birth, and refugee children born in Spain may naturalise after one year’s residence. Safeguards are in place to ensure foundlings acquire Spanish nationality, and that adoption does not present a risk of statelessness. Birth registration is assured regardless of parents’ status and legal deadlines, and appropriate procedures are in place regarding the child’s nationality.

Last updated: 
Feb 2020
Next scheduled update: 
Mar 2021
Country expert(s): 

Fundación Cepaim, Jesús Tolmo & Nacho Hernández (Leads) with Aleksandra Semeriak (Individual), Arsenio Cores (Individual) and Pedro Sanz (Catalan Commission for Refugees - CCAR)

Additional resources

ASSESSMENT KEY

++POSITIVE
+ SOMEWHAT POSITIVE
+-POSITIVE and NEGATIVE
- SOMEWHAT NEGATIVE
--NEGATIVE

ADDITIONAL INFO

-NORMS & GOOD PRACTICE

 

International and Regional Instruments

Assesses whether countries are state party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

Spain is state party the 1954 Convention and recently acceded to the 1961 Convention, but it is not party to the European Convention on Nationality nor to the Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession. Spain’s record on other relevant international and regional instruments is generally good, though it is not party to the Convention on the Rights of All Migrant Workers and Members of their Families.

  • Spain is State party to the 1954 Convention, and it has direct effect.  It retains one reservation (to Article 29), but this does not have significant impact.
  • Spain is state party to the 1961 Convention, and it has direct effect. A declaration and reservation were entered at the time of accession, but these do not have significant impact.
  • Spain is not state party to the two Council of Europe statelessness conventions, the European Convention on Nationality and the Convention on the Avoidance of Statelessness in Relation to State Succession.
  • Spain is bound by the EU Returns Directive and is state party to all other relevant human rights instruments (with no reservations), except for the International Convention on the Rights of All Migrant Workers and Members of their Families.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries and migration databases. Notes whether statelessness has been mapped in the country and whether there are effective measures in place to count stateless people in detention.

There are several sources of data on the stateless population in Spain, including the census, which allows people to self-report nationality and includes a ‘stateless’ category. Other sources include Ministry of Interior data on applications for Stateless Status, data on migration and asylum, and Eurostat. However, potentially overlapping categories are used in the census and no detailed information is available on the origins of the stateless population in Spain. The Ministry of Interior records how many people identified as stateless it detains in immigration detention centres, but these figures are not published.

  • There are several sources of data on the stateless population in Spain, including the census, which allows people to self-report nationality (160 people reported they were stateless in the last census in 2011). The census survey for people in collective accommodation establishments includes a category 'stateless'. 
  • However, there are several categories in the census that might overlap with stateless people, including categories for 'countries without diplomatic relations' in each region of the world. 
  • UNHCR reported 1,596 stateless persons in Spain in 2017. 
  • Eurostat reports 1,276 stateless persons in Spain in 2018. 
  • Other sources of data include the annual report of the Ministry of Interior on the number of applications for stateless status and recognition rate as well as their report on migration.
  • According to the last report, between 2009 and 2018, 10,144 applications were submitted for stateless status. In 2018, 932 applications were decided: 859 grants and 71 refusals. In addition, two people were recognised as stateless by the courts in 2018.
  • According to the latest report on migration in Spain, the Ministry of Interior reported that 1,232 stateless persons were living in Spain in 2017.
  • No detailed information is available on the background or origins of the stateless population in Spain, which limits visibility and understanding of the cause and consequences of statelessness.
  • The Ministry of Interior records how many stateless people it detains, but it does not publish this information.
  • Following an information request, the Ministry of Interior stated in October 2019 that no stateless people were held in immigration detention in Spain.

Statelessness Determination and Status

Identifies whether countries have a definition of a stateless person in national law that aligns with the 1954 Convention, and whether they have a dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and legal status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place, those with other administrative procedures, those with a status but no clear mechanism, and those without any status or mechanism. Where a procedure and status exist, these are assessed against norms and good practice, and the rights granted to recognised stateless persons are examined.

The definition of a stateless person and exclusion provisions in Spanish law align with the 1954 Convention, and a dedicated statelessness determination procedure is established by Royal Decree although detailed procedural rules are not set out in law. Applications can be lodged centrally or locally, there is no fee nor lawful stay requirement (a requirement that the application be lodged within a month is not implemented in practice), the burden of proof is shared, interpreting is available, and decisions are given in writing. However, applications must be made in writing in Spanish using a specific form, and neither an interview nor free legal aid are guaranteed. Protection during the procedure may be accessed and there is a right to appeal but delays can be lengthy. A grant of stateless status automatically leads to indefinite residence, the right to a travel document, family reunification, work, education, social security and healthcare. However, there is no facilitated route to naturalisation for stateless people, who must wait for ten years and meet all other standard eligibility criteria in law before qualifying to apply for Spanish nationality.

  • The definition of a stateless person and exclusion provisions in domestic law align with the 1954 Convention.
  • Spain has a statelessness determination procedure established by Royal Decree; however, detailed procedural rules are not set out in law.
  • SDP applications are reviewed by a centralised authority (Asylum and Refugee Office (OAR)).
  • Applications can be submitted at the OAR office in Madrid, or any police station or immigration office around the country. However, applications under the SDP cannot be submitted at the border nor from immigration detention centres (unlike applications for refugee status).
  • Some information is accessible online about how to apply, and brochures about international protection are available at some police stations and immigration offices in French, Spanish, English and Arabic. 
  • Applications must be made in writing on a specific form, which is only available in Spanish. The form contains complex legal questions and space for entering information is limited. 
  • There is no fee for the application nor any lawful stay requirement. 
  • There is an obligation in law on the authorities to consider the application and a deadline of three months for making a decision, but this timeframe is not complied with in practice.
  • The law sets a maximum of one month of irregular stay during which an application must be submitted, but this is not currently applied in practice. 
  • The law permits applications to be made ex officio but this is only exceptionally used in practice. 
  • The law establishes that the competent Public Administrations shall inform the OAR about any procedure or fact that may affect applicants for stateless status.
  • UNHCR Spain organises events and trainings for civil society organisations and relevant stakeholders, which the OAR sometimes attends.
  • The burden of proof is shared between the applicant and the OAR. 
  • The law does not state the standard of proof, but case law has established that it is enough for the applicant to 'manifest their lack of nationality'.
  • There are no specific provisions in place to guarantee substantive equality for women, children, and other groups at risk of disadvantage in the procedure. 
  • There is no publicly available guidance for decision makers. The OAR has internal handbooks, e.g. relating to the Saharawi. For other countries of origin, they use UNHCR's Handbook, and instructions on access to citizenship issued by the Directorate General of Registries and Notaries.
  • The law does not provide for free legal aid for stateless applications, but applicants to the SDP may be admitted to asylum reception centres, in which case, they would be able to access legal aid on the same basis as asylum seekers.
  • Applicants do not have the right to an individual interview - an interview may be held if it is deemed essential by the decision maker, but this rarely happens in practice.
  • Free interpreting is available.
  • It is not clear whether quality assurance audits are undertaken - none are publicly available.
  • UNHCR does not have a designated role in the procedure, but they may request access to files and monitor cases.
  • There is a time limit for decisions of three months, but it is not complied with in practice.
  • Decisions are given in writing with reasons.
  • No official referral mechanism exists. If international protection is refused, the OAR can initiate the SDP ex officio but this rarely happens in practice."
  • There is no evidence of the Government undertaking quality assurance audits.
  • According to law, temporary stay can be granted to applicants who are not subject to deportation proceedings. Applications by those subject to deportation proceedings are deemed manifestly unfounded.
  • Applicants may receive an identity card ('green card'). If they do, in practice, it can take months to receive this. 
  • Applicants do not receive the same treatment as asylum seekers - they are not allowed to work, there is no explicit protection against deportation, and, although they may enter the national reception system for asylum applicants, they are excluded from the initial stage of the three-stage process. 
  • Applicants receiving support under the asylum reception system have access to free legal advice, psychologists, employment consultants, trainers and tutors; they are accommodated in regular housing facilities overseen by technical staff composed of social workers and mediators. During their first six months in the system, they are provided with accommodation, food, clothing, and cash assistance to cover their most basic needs, apportioned according to the number of people in the household. From the seventh to eighteenth month, they receive economic grants for basic needs (350€/month for an individual) and get a maximum of 376€/month (individual) to pay rent. They all have an individual pathway of integration and they are supported by staff during their stay.
  • Applicants who have an ID document proving temporary stay cannot be detained, but those awaiting proof of temporary stay may be at risk of detention.
  • There is an effective right of appeal to an independent body against first instance decisions, however, judicial review is a lengthy process as there is just one competent body in charge of the procedure. The appellant may be left unprotected in the interim. 
  • There is a two-month deadline for administrative appeals, a one-month deadline for an optional appeal and a four-year or three-month deadline for an extraordinary appeal for review depending on the circumstances of the case. 
  • Legal aid is mandatory and free for those without financial means for appeals (though not in the first instance).
  • There is no fee for the appeal application, but if the individual loses their cases, procedural costs may apply.
  • There is evidence of errors in decision-making following court decisions that have yet to be implemented by administrative decision-makers.
  • Recognition of statelessness results in automatic permission to stay and an indefinite right to reside. The foreigner's identity card (Tarjeta de Identidad de Extranjero) must be renewed every five years, but the authorisation itself is permanent. 
  • Travel documents are issued to recognised stateless people and are valid for two years. 
  • Stateless people have a right to family reunification, to work, to primary, secondary and higher education, to social security and to healthcare. 
  • Residence rights may be revoked when obtained in a fraudulent manner, when there has been an order of expulsion in situations ordered by law, when the person is absent from the territory of the European Union for 12 consecutive months, when the person has acquired long-term EU residence in another Member State, when residence has been obtained by a person recognised as a beneficiary of international protection in another Member State and when there is an absence from Spanish territory of six years.
  • Continuous, legal residence is required immediately prior to an application for naturalisation and during the process, which can be lengthy (up to three years in some cases).
  • For stateless people, the timeframe is 10 years, the same as for foreigners in general. The timeframe is reduced for refugees (five years) and for people from Latin American countries, Sephardic Jews, Andorra, the Philippines, Equatorial Guinea and Portugal (two years), but not for stateless people.
  • Nationality may be denied for reasons related to public order or national interest and the applicant must also justify 'good civic conduct' and a sufficient level of integration into Spanish society.
  • An integration exam and language test must be passed (at additional cost - approx. 85 EUR for integration exam and 130 EUR for language text) and there are no exemptions for stateless people. 
  • The fee for naturalisation is 102 EUR and there are no exemptions.

Detention

Analyses law, policy and practice relating to immigration detention generally, focusing in on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, whether alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release and whether statelessness is considered juridically relevant in bilateral return and readmission agreements.

Immigration detention powers are provided for in law, but practice suggests an excessive use of detention as many more people are detained for removal than are removed. There is no specific provision to identify a country of removal prior to detention and people are often detained without identifying their protection needs, including statelessness. It is not possible to apply for stateless status from detention, although cases of stateless people in detention have been reported. The law provides for alternatives to detention, but these are rarely implemented in practice. Some procedural safeguards are in place but there is no regular periodic review by an independent authority, and barriers have been reported to accessing legal aid and appeals. People are generally released from detention with only an expulsion order (unless they have claimed asylum) and very basic rights.

  • Powers for immigration detention are provided for in law and restricted to purposes allowed under Art. 5(1(f) ECHR. However, in practice, of 8237 people detained for expulsion in 2017, only 3041 were expelled, suggesting an excessive use of detention powers. 
  • There is no specific provision in law requiring a country of removal to be identified prior to detention for removal, although a judge should take into account the lack of a proposed country of removal in deciding whether to detain someone. However, there are cases of people being detained at the border with little individual consideration of the likelihood of removal.
  • Statelessness is juridically relevant in administrative immigration detention decisions in that a recognised stateless person may not normally be detained, and statelessness should be relevant to the ability to remove someone. However, in practice, the authorities often do not identify people in need of protection prior to detaining them, there is no specific mechanism to identify statelessness, and it is not possible to apply for determination of statelessness from detention. Cases of stateless people in detention have been reported by NGOs.
  • According to the Constitutional Court, immigration detention must be considered as an exceptional measure, and decisions must be made based on the principle of proportionality. 
  • Vulnerability assessments are carried out and the detention of certain groups is prohibited (including pregnant women and unaccompanied minors) but statelessness is not considered a relevant factor.
  • The Immigration Law provides for several alternatives to detention and authorises the competent judge to order any measure not provided in the law that may be considered appropriate and sufficient. 
  • However, these measures have not been developed and are rarely used in practice, except for the withdrawal of a passport.
  • The maximum length of detention under the Immigration Law is 60 days.
  • The Immigration Law provides that the competent judge will communicate the reasons for detention to the individual in writing, but it does not specify that this must be done in a language they understand and in practice it is delivered in Spanish.
  • Upon detention, every affected person has the right to be assisted by a lawyer and an interpreter and the centre regulations provide that all detainees must be informed about their rights and duties in an understandable language. There is no reference to the SDP, however.
  • There are no regular periodic reviews unless the circumstances justifying detention no longer exist or new circumstances arise. 
  • Detainees can appeal the detention order to a higher court, which can have suspensive effect, but this rarely happens in practice. 
  • It is not clear whether there are guidelines in place for the process of redocumentation or ascertaining nationality.
  • The right to legal aid to challenge detention is provided for in law where the person lacks financial means, but NGOs and lawyers report barriers in practice due to communication problems and geographic restrictions.
  • People released from detention do not receive any identification documents (unless they have claimed asylum) and are generally released with an expulsion order. In the absence of any other legal status, people released from detention will have only basic rights since their administrative situation remains irregular.
  • Cumulative time is counted towards the maximum time limit for detention and there is protection against re-detention for people who have reached the maximum limit.
  • Information about bilateral return and readmission agreements is not always public. In the agreements consulted, there were no specific references to stateless people. 
  • NGOs have reported cases of Sahrawi people being returned to Algeria and Morocco under corresponding readmission agreements, but there is no reliable data available to corroborate this.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy and practice on birth registration, including access to late birth registration, reduction measures taken by states to prevent statelessness among groups at high risk, and provisions regarding withdrawal of nationality.

Spain has strong safeguards in its nationality law to prevent statelessness, granting nationality automatically at birth to children born on the territory who would otherwise be stateless and to Spanish parents abroad, with no discriminatory conditions. Additionally, children born in Spain to refugees can naturalise after one year of residence. Foundlings may acquire Spanish nationality by origin until they are 18 and safeguards are in place to prevent statelessness in adoption cases. All births are registered, and birth certificates are issued regardless of parents’ status or the legal deadline for registration. Nationality is only recorded at birth if the child is Spanish. In the case of a child born stateless, a procedure is in place to record the child’s Spanish nationality as a rebuttable presumption. There is a safeguard to prevent statelessness in all cases of loss of nationality by origin, but not in all cases where nationality was acquired by naturalisation, although there are procedural safeguards in place.

  • The Civil Code attributes Spanish nationality automatically at birth to all those born in Spain to foreign parents 'if both parents lack a nationality or if the legislation of both of their countries of origin does not attribute a nationality to the child', which in theory prevents statelessness at birth. 
  • There is no legal requirement for children to prove they can't access another nationality. In certain specific circumstances, civil registrars may require this, but it is not legally enforceable.
  • There is no requirement to fulfil a period of residence by the child or the parents and no age limit for acquiring nationality.
  • A child born in Spain to refugee parents may naturalise as Spanish after one year of residence in the country.
  • Foundlings (children whose filiation is undetermined) acquire Spanish nationality by birth. 
  • If the place of birth is unknown, the law establishes that it will be presumed that minors whose first known place of residence is Spain, will be considered to have been born in Spain.
  • Up to 18 years-old, the application for Spanish nationality can be presented at any moment and automatic acquisition will apply. Upon reaching the age of majority, the person will have two years within which to opt for Spanish nationality.
  • Nationality cannot be withdrawn from foundlings if this would result in statelessness.
  • The nationality by origin of a Spanish child adopted by foreign parents can only be lost if the adopted person is an adult (or emancipated) and is not from a Latin American country, Andorra, Philippines, Equatorial Guinea or Portugal. Any loss is subject to procedural guarantees.
  • A foreign minor who is adopted by a Spanish national acquires Spanish nationality upon adoption. If the adopted person is an adult, they can acquire Spanish nationality by origin within two years of the adoption being constituted.
  • A child born abroad to a Spanish mother or father acquires Spanish nationality automatically and there are no discriminatory conditions.
  • The law provides that all births on Spanish territory are registered and all children are issued with birth certificates upon registration. 
  • The child’s nationality is recorded at birth registration only in cases of minors born in Spain to a Spanish mother/father; minors born in Spain to foreign parents where at least one of them was born in Spain; and minors born in Spain whose parentage is undetermined. In the case of minors born in Spain to foreign parents who lack a nationality or are unable to confer nationality to their child, it is necessary to undertake a procedure for requesting nationality as a rebuttable presumption, relying on the Law on Civil Registry.
  • There are no reports of children being prevented from registering because of their parents' legal status. 
  • There are no mandatory requirements upon civil registry officials to report the presence of people with irregular status. 
  • Although deadlines for registration exist (72 hours, 10 days and 30 days), even when these are surpassed, it is possible to file for an out of time registration before the civil registry. In no case would a birth remain unregistered.
  • There are no current programmes to promote civil registration. 
  • Groups thought to be affected by statelessness or at risk of statelessness in Spain include Sahrawi, Palestinians, Romanian children born in Spain, some people in Ceuta and Melilla who were never registered, and Syrian children born in Spain or abroad to Syrian female-headed households.
  • Spain has taken some specific actions aimed at reducing statelessness in recent years: it acceded to the 1961 Convention on the Reduction of Statelessness in 2018; it resolved a problem faced by Romanian children born in Spain who lacked documentation by reaching an agreement with the Romanian Government to amend their law in order to provide a case-by-case solution to this issue; and it co-hosted the regional preparatory meeting in April 2019 for the High Level Segment on Statelessness with UNHCR.
  • Provisions for loss of nationality are set out in the Civil Code.
  • The law contains a safeguard against statelessness in all cases of loss of nationality by origin. 
  • In cases of loss of nationality acquired by naturalisation, there is no explicit safeguard against statelessness. Loss in this case occurs when the person exclusively uses the nationality they renounced in order to acquire Spanish nationality for three years; when a person enters the armed forces or exercises political office in a foreign state against the wishes of the Government; or when nationality has been acquired through fraud or deceit. Any loss in these circumstances does not affect any third person acting in good faith (e.g. children). 
  • The General Directorate of Registries and Notaries is the competent authority (in practice civil registries and consulates abroad). There is a possibility to appeal any decision administratively before the Directorate within a month. If the denial is upheld, it can be appealed through contentious-administrative proceedings before the Administrative Dispute Chamber of the National Court within two months, in which case free legal aid would be available.

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