To defend the decision to send back dozens of Sahrawis, Fernando Grande-Marlaska took refuge this Tuesday in the role played by the United Nations High Commissioner for Refugees (UNHCR) in the process of analyzing asylum requests. The Minister of the Interior stressed that his department maintains “permanent communication, coordination and cooperation” with the UNHCR in the individualized study of each request. He did not, however, declare that in his attempt to return several Sahrawis, he ignored the UN agency’s request to allow their entry into Spain, particularly those seeking recognition of their statelessness.
The UNHCR legal teams in Spain sent to the Office of Asylum and Refuge, dependent on the Interior, several individualized reports on some of the Sahrawis detained in Barajas, with the aim of sharing with the ministry their position concerning each of them . Although each document is different from each other since it is analyzed on a case-by-case basis, there is one element that is usually repeated in each of them. According to the criteria of the United Nations Agency, if the Sahrawis requested at the airport, beyond asylum, recognition of their situation of statelessness – the absence of nationality, given that they do not do not identify with Moroccans -, this person should get it. authorization to enter Spain and not to be returned before knowing the outcome of said request, given that its deadlines are generally longer than those of asylum.
“Taking into account the limited time limits for the statelessness procedure and that it is not possible to resolve it within a reasonable time during the applicant’s stay at the airport, the applicant’s entry into the territory is authorized in order to continue the statelessness procedure”, maintains a writing, to which elDiario.es had access, sent by UNHCR Spain to the attention of the deputy director general of Asylum, Cruz Fajardo.
The report specifically refers to the case of Hamou Ali, a 30-year-old Sahrawi who formalized a request for asylum in Barajas in September and, at the same time, a request for recognition of statelessness or lack of nationality. The man is deaf and suffered from cancer at several points in his life, which is why he was treated in the occupied territories of Western Sahara, according to several medical reports consulted by this media.
UNHCR reminds Interior in its letter that the 1954 Convention relating to the Status of Stateless Persons “includes guarantees on the non-expulsion of stateless persons.” It specifically refers to its Article 31, whereby “the Contracting States shall not expel any stateless person who is lawfully in the territory of those States, except for reasons of national security or public order”. It also mentions the UNHCR manual on the protection of stateless persons. According to this document, “States are advised to refrain from expelling a person from their territory pending the outcome of the determination process” of possible statelessness status “in order to ensure that the procedures are fair and effective”.
The UNHCR reiterated this recommendation on the case of Hamou Ali in at least three letters sent to the Interior on September 12, 14 and 23, in which it also added another reason for his entry into Spain: his situation resulting from the illness from which he suffered and. the disability he suffers from, which is why he may encounter obstacles in carrying out his interviews at the airport since the young man needs an adapted interpreter who understands his language, Hassania, adapted to sign language.
Despite repeated requests from the UNHCR for his entry into Spain, Hamou Ali is one of the Sahrawis whom the Interior tried to send back without success last Sunday, with dozens of Sahrawis. According to judicial sources, most of them resisted getting on the plane until they managed to avoid returning to Morocco.
Other cases
Among those about to be fired that night was also Rachida Amador. The 32-year-old woman asked Barajas for recognition of statelessness because she is Sahrawi, in addition to a request for asylum due to the situation of persecution she claims to suffer in the occupied territories of Western Sahara. .
On this subject, the UNHCR also sent a report to the Asylum Office with the same recommendation issued in the case of Hamou Ali: “This Office recommends that, taking into account the time limits of the statelessness procedure and the impossibility of resolving it within a reasonable time during the applicant’s stay at the airport, the applicant’s entry into the territory is authorized in order to continue the statelessness procedure included in RD 865/2001 and in accordance with the recent decision of the Supreme Court on the possibility of initiating a statelessness procedure while the applicant is at a border post processing an international protection procedure,” insisted the UN agency in a report also ignored by the Interior.
Although the asylum application was rejected by the government, the demand for statelessness continues. Her response will take time, but the department led by Fernando Grande-Marlaska continues to try to repatriate her, as well as many other Sahrawis detained in Barajas in a similar situation, for whom the UNHCR also requests their entry into Spain in writings sent to their lawyers. and which They end up being incorporated into the protection files sent and ignored by the Interior.
Elena Muñoz, head of the legal sector of the Commission for Assistance to Refugees (CEAR), confirms the recurring position of the UNHCR in the cases of Sahrawi statelessness applicants that the organization serves at Barajas airport. “In the cases we deal with, the situation of individualized persecution varies greatly and common elements cannot be established. But there is a common element: they are Sahrawis who live in the occupied zone of the occupied Sahara and request statelessness. And in the majority of these cases, the reports requested from the UNHCR coincide in recommending the entry into Spain of these people, because these are longer processes, to analyze their request with all the guarantees,” maintains the lawyer.
In 2020, the Supreme Court confirmed the right of statelessness applicants to register their application at the Barajas airport given that previously, as CEAR explains, this type of application was generally not admitted for treatment. The resolution of a case brought by CEAR to the High Court confirmed this right. “The judgment stipulates that when the Office of Asylum and Refuge detects a situation of statelessness in an asylum application, it must automatically initiate this other procedure,” explains Muñoz, who adds that he is a path that involves a study period. and cannot be achieved via the accelerated system applied in airports. “It can’t be done in the 4 or 8 days it takes to resolve asylum claims at the border, in fact it usually takes six and a half months or two years,” he says.
In this sense, in its cases defended in Barajas, CEAR also bets on the request for entry into Spain of those who declare themselves stateless at the airport. “Since these people are requesting statelessness, the regulations allow their stay in Spain to be authorized and documented as such, and since it can be processed correctly, it is more appropriate for the applicant to enter and have their case studied while he is on Spanish soil, otherwise it could become complicated. And this criterion is also supported by the UNHCR.
From her experience, the CEAR lawyer maintains that in general the Interior does not accept the entry of these people into Spain and, despite the recommendations of the UNHCR, it also begins the process of returning stateless applicants. This is not a new criterion resulting from the change in position of the Spanish government on Western Sahara, defends the lawyer. The NGO claims to have been fighting for years in court against the interpretation made by the Interior of requests for statelessness made at airports.
“The Interior could do it because the statelessness regulations allow it and because of the immigration regulations, which determine that if there are humanitarian reasons, international commitments, it could authorize their entry even if they do not meet all the conditions,” argues the lawyer. “In addition, Spain has signed the Convention on Statelessness, so we will have to guarantee that these people are not expelled, and there are humanitarian reasons for the situation they are experiencing in the occupied territories of the Sahara,” explains the lawyer, explaining the legal basis by which they defend the entry into Spain of Sahrawis.
However, Spanish regulations, although not preventing the entry of these cases into Spain, do not require that their entry be authorized, given that the principle of non-refoulement only concerns people already recognized as stateless persons, and not the applicants of said stateless person. law. “What we interpret is that it should also cover them by the obligation that the public administration has to eliminate all obstacles in the study of the petition: if it is not in the territory Spanish, it is difficult to process, requesting additional documents is generally more complicated and makes the procedure very difficult,” he adds.
The Supreme Court ruling which confirmed in 2020 the right to open the statelessness procedure from an airport did not refer to the question of whether the Spanish authorities should authorize their entry into Spain, as defended by the UNHCR . On this point, CEAR presented another appeal in 2022 before the High Court, pending its admission for processing, which could definitively remove doubts.
