In recent years, Latin America has been one of the regions that has seen a significant increase in asylum applications in Spain. Citizens from many countries have been forced to emigrate due to the difficult social, political, and economic situations in their countries of origin. With this article, we help you understand how to deal with a denial of asylum and ensure your rights with our expert immigration team.
Admission to Processing of Asylum Application
Once the asylum application is submitted, it undergoes a process of study and evaluation to determine its acceptance or rejection. In most cases, applications are accepted for processing as long as they are properly substantiated and supported with the necessary evidence. If admitted, the applicant will be granted a «White Card» containing a foreigner identification number (NIE) and authorizing them to work and reside legally in Spain, both as an employee and as a self-employed individual, on the dates provided in the same card.
The white card has a temporary validity and is renewed periodically until the case is definitively resolved, where in the periodic renewals, you are granted different cards, known as red cards.
What happens if my asylum application is denied? – Hypothetical Denial of Asylum
What to do in the face of a denial of asylum decision?
Currently, approximately four out of every five asylum applications are denied in Spain. Faced with an unfavorable decision, the foreigner has options that may determine their future situation:
Option 1: Accept the decision of non-granting of asylum and face an irregular situation in Spain. In this case, you will have 15 consecutive days to leave the country voluntarily.
Option 2: If you disagree with the denial, you have the possibility to submit an appeal for reconsideration within the next natural month following the notification of the negative resolution.
The appeal process may take several months, and if the decision is also unfavorable, a lawsuit can be filed with the contentious-administrative jurisdiction, whose resolution may take between six months and a year. In case the judicial decision confirms the denial resolution, an expulsion procedure could be initiated.
It is important to note that expulsion is not automatic in both mentioned scenarios, but an additional administrative procedure is required, which may take several more months. Likewise, against the decision that orders the expulsion, the corresponding appeals can be filed.
Optional Appeal for Reconsideration for political asylum
In the event that the asylum application is denied, even if the applicant holds the provisional «Red Card,» an Optional Appeal for Reconsideration (art.29 Law 12/09) can be filed within one month from the notification of the resolution. There is also the option to file an Administrative Litigation Appeal before the National Court, always with the legal advice and representation of a lawyer and solicitor.
Remember Your Legal Options
The Asylum Law establishes that, in case of denial of the application, the applicant may find alternative ways to stay in Spain. Some of the scenarios in which they may remain in the country include:
- Meeting the requirements to obtain a stay or residence permit in Spain for humanitarian reasons.
- Recognition as a victim of certain serious crimes requiring special protection.
- Demonstration of suffering from a serious illness requiring specialized medical attention not available in their country of origin.
- Risk to their safety or that of their family if returning to the country of origin to obtain a corresponding visa.
Expulsion Procedure for Denial of Asylum
If expulsion is ordered after the denial of asylum, the Ministry of the Interior will establish a period of 15 days for the applicant to leave Spain. During this period, an Administrative Appeal for Reconsideration or Appeal may be filed, as appropriate. If the decision of the appeal confirms the expulsion, a lawsuit can be filed with the contentious-administrative jurisdiction.
Can I work with the asylum appeal for reconsideration?
As established in Directive 2013/33/EU of the European Parliament and of the Council, during the appeal process, asylum seekers whose requests have been denied are allowed to continue working. The execution of the denial resolution is suspended while the appeal is being processed.
Continuing to work while the appeal is pending:
However, although the regulation allows it, the General Treasury of Social Security does not always recognize this right, notifying companies that the worker cannot continue their work activity, even with the appeal filed, and proceeding to extinguish the contribution periods from the denial resolution.
Fortunately, following the intervention of the Ombudsman, the Ministry of Inclusion, Social Security, and Migration has issued instructions for Social Security not to deregister asylum seekers who have been provisionally denied asylum and not definitively.
Thousands of families can now continue residing, working, and contributing to Social Security while awaiting final resolutions. Additionally, this decision will also have a positive impact on the healthcare they are entitled to.
Do I have other options to legalize my status in Spain?
In case of denial of the asylum application, the applicant may consider other alternatives to legalize their status in Spain. They may access a Residence Permit for Exceptional Circumstances (Social Integration) if they meet the established requirements. They can also apply for a Residence Permit for Labour Integration if they have resided continuously in Spain for at least 2 years and have worked for a certain period.
It is important to note that to apply for a Residence Permit for Labour Integration, it is necessary to withdraw the Asylum and International Protection application or, if applicable, the Appeal for Reconsideration filed against the denial resolution of the asylum application, as the foreigner must be in an irregular situation.
Questions and Answers about the Asylum Process in Spain:
What to do if my asylum application has been denied in Spain?
If your asylum application has been denied, you have two options: you can accept the decision and face an irregular situation in Spain, or you can file an appeal for reconsideration within a month from the notification of the negative resolution.
What happens if I file an appeal for reconsideration against the denial of asylum?
The appeal decision process may take several months. If the appeal decision is also unfavorable, you can file a lawsuit with the contentious-administrative jurisdiction, whose resolution may take between six months and a year.
Can I continue working while the appeal is pending?
Yes, while the appeal is being processed, you have the right to continue working in Spain. The execution of the denial resolution is suspended during the appeal process.
What is an asylum appeal for reconsideration?
The appeal for reconsideration is an administrative procedure by which an asylum seeker can challenge a denial resolution by submitting new allegations and evidence to the same authority that made the initial decision.
What can I do if my asylum application is denied in Spain?
If your asylum application is denied in Spain, you have the option to file an appeal for reconsideration within the next month following the notification of the negative resolution. If the appeal decision is also unfavorable, you can file a lawsuit with the contentious-administrative jurisdiction.
What happens if someone is denied asylum?
If someone is denied asylum, they have the option to file an appeal for reconsideration or, subsequently, an administrative litigation lawsuit to try to reverse the decision.
How long does an immigration appeal take?
The time it takes for an immigration appeal can vary depending on the complexity of the case and the workload of the courts. Generally, it can take between several months and a year.
How long does it take to get a response to an asylum appeal for reconsideration?
The deadline to obtain a response to the asylum appeal for reconsideration can be several months. The administration has a set time to resolve, but sometimes it may require more time due to workload.
What happens if an asylum appeal for reconsideration is not resolved?
If the asylum appeal for reconsideration is not resolved within the set deadline, it may be considered dismissed by administrative silence. In this case, the applicant could proceed to the contentious-administrative route.
What comes after the asylum appeal for reconsideration?
After exhausting the appeal for reconsideration and, if the decision is again unfavorable, the next step would be to file a lawsuit with the contentious-administrative jurisdiction to review the decision.
Marta Palacios Cuesta is the founder and principal consultant of Es Abogado Extranjería, a law firm specializing in immigration law in Madrid and Seville. With an impressive academic background, Marta offers expert advice on immigration procedures, residency processes and obtaining Spanish nationality. Committed to providing personalized and up-to-date solutions, her firm stands out for its detailed and professional approach. If you need legal guidance regarding your status in Spain, contact Marta for a personalized consultation at Es Abogado Extranjería.
