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Update from June 2022:
Several institutions reported increased figures for the total number of stateless people in Spain in 2020 compared to 2019 (Eurostat: 1,952; National Statistics Institute: 2,812; UNHCR: 6,092). In 2021, the number of stateless people as reported by the National Statistics Institute further increased to 3,156. The Ministry of Interior’s annual report in 2020 indicates that for the period 2001-2020, 13,992 applications for statelessness status were submitted, 1,803 decisions granted statelessness status and 352 refused it. With regard to immigration detention, in 2020, despite the COVID-19 pandemic, of 2,224 people detained in Immigration Detention Centres for expulsion, only 1,248 were expelled, still suggesting an excessive use of detention powers.
Since March 2022, with the approval of the Royal Decree 220/2022, applicants for statelessness status who were previously excluded from the national reception system for asylum applicants, may access now this system, including education for child applicants and their inclusion in integration programmes. The new 2021 “Comprehensive Protection of Children and Adolescents Law” represents a step forward in the protection of minors in many aspects of the international protection procedure, which may also benefit children in the statelessness determination procedure.
Spanish courts have recently published landmark case law on children’s birth registration and access to nationality. In October 2021, a first instance court held that, to respect the child’s right to be registered as soon as possible after birth, the Spanish authorities should register the child’s birth, as even though the child had been born abroad they had not been registered in any other country. In May 2022, in a case where the child was born en route and their birth was never registered, another court recalled the principle of the best interests of the child and found a violation of the child’s fundamental rights, declaring that the child held Spanish nationality.
On naturalisation, a new law passed in June 2021 provides that minors under 14 who apply for Spanish nationality no longer require the authorisation of the Civil Registry.
New resources on Spain now available include:
- 2021 Statelessness Index Survey
- ENS blog, Landmark judgment from Spain: court grants Spanish nationality to a stateless child born en route (a case of “invisible children”) (July 2022)
- Provincial Court of Guipúzcoa, no. 341/2022, 11 May 2022
- Auto Juzgado de Primera Instancia de Montilla, 15 October 2021
- ENS blog, Stateless people at the border: the scenario in Spain (April 2022)
- ENS blog, Political limbo and statelessness in Africa’s last colony (April 2021)
- Case law from the Spanish courts on the interaction between the international protection procedure and the statelessness determination procedure highlighting challenges in protection: Audiencia Nacional, no. 136/2018, 12 May 2021; Audiencia Nacional, no. 1317/2021, 26 February 2021; Audiencia Nacional, no. 40/2021, 9 March 2021
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, 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. Positively, with the approval of Royal Decree 220/2020, applicants have access to the national reception system. If granted, statelessness 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. Spanish courts have recently published case law that positively reinforces children’s right to birth registration and to a nationality, including for migrant children born en route. Provisions on deprivation of nationality are in line with the 1961 Convention, but there is no safeguard against statelessness in case of deprivation of Spanish nationality of naturalised nationals.
Information below by theme was last updated in March 2021.
Ignacio Hernández, Fundación Cepaim
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