International protection provides shelter to individuals fleeing their country for non-economic reasons, granting refugee status or subsidiary protection. Residence may also be granted for humanitarian reasons.
- Refugee Status: Recognized for individuals who fear persecution due to race, religion, nationality, political opinion, membership in a social group, gender, or sexual orientation.
- Subsidiary Protection: For those who do not meet the refugee requirements but face serious risks such as the death penalty, torture, or indiscriminate violence in their country.
- Humanitarian Reasons: Residence is granted for reasons such as a serious illness without treatment in the country of origin or danger upon return.
Application for International Protection:
Must be requested by appointment. After submitting the application, a provisional document is issued, suspending any expulsion process. On the appointment day, the Declaration of Intent to Submit an Application for International Protection will be provided. This document already includes the date and place of the interview (formalization of the application), identity details, a photograph, and the documents required for the interview.
Formalization and Interview:
During the interview, the reasons for fleeing are detailed, presenting identity documents and evidence. Rights, contact with UNHCR, and NGO support are explained.
Procedure:
- Admission: A decision on whether to admit the application is made within one month. If admitted, after five more months, the applicant will automatically receive authorization to work in Spain for three additional months, after which the application receipt must be renewed.
- Processing: The application is thoroughly examined. The Asylum and Refuge Office (OAR) in Madrid is responsible for processing international protection applications.
- Resolution: The Interministerial Commission and the Minister of the Interior make the final decision.
Documentation as an Applicant:
- Declaration of Intent to Submit an Application.
- Application Receipt.
- Red Card (allows work for six months).
Rights and Duties:
- Rights: Stay in Spain, legal and medical assistance, and identification as an applicant.
- Duties: Provide an address, cooperate, provide fingerprints, and allow recordings.
Family Unity Maintenance:
Allows reunification with ascendants, minor descendants, spouses, and other dependent family members.
Difference Between Application Receipt and Red Card:
- Application Receipt: A provisional document issued after the interview, identifying the international protection applicant for one month, extendable up to nine months. It allows work after six months.
- Red Card: Identifies the applicant and permits residence and work in Spain for six months while the application is being processed.
Impact of the New Regulation on International Protection Applicants (Asylum and Refuge)
One of the most controversial aspects of the regulation is its effect on international protection applicants, meaning those who have sought asylum or refuge in Spain. Until now, many people applied for asylum as a way to obtain work authorization while awaiting a decision.
- Article 126 of the new regulation states that certain permits cannot be accessed while an asylum application is pending.
- However, “escape routes” have been created, allowing alternatives for regularization if the asylum application is denied or if the applicant chooses another route, such as social roots or socio-formative roots.
- The regulatory change particularly affects citizens from countries such as Colombia, Peru, and some African nations, which have a high number of asylum applications.
- The case of Venezuela is different, as most cases receive humanitarian protection.
The Problem of Processing Times and System Overload:
Previously, many people applied for asylum because, even if they had a low chance of being recognized as refugees, they could still obtain the right to work while waiting for a response. Due to the overload of Spain’s asylum system, some appointments took up to 8 or 9 months to be granted, allowing applicants to work during this time.
The new regulation seeks to prevent the use of asylum applications as a means to obtain work permits, which has led to criticism because it limits regularization options for many individuals.
Conditions for Applying Under Transitional Provision Five
Transitional Provision Five of the new immigration regulation provides a regularization pathway for certain individuals in irregular situations in Spain. However, its application is subject to specific conditions:
- Irregular Status as of May 20, 2025
- The individual must be in an irregular situation on this date, which marks the entry into force of the regulation.
- Irregularity Must Be Due to a Final Rejection of International Protection
- The irregular status must result from a final rejection of an international protection request, either administratively or judicially.
- Those who are irregular for other reasons, such as a denied residence permit renewal, cannot apply.
- Duration of Irregular Status
- The applicant must prove at least six months of irregular status before applying.
- Requirements for Those Who Withdraw an Appeal
- Individuals who withdrew an appeal against an implicit denial (i.e., without a firm resolution) cannot apply.
- Those who withdrew an appeal against an explicit denial can apply, as in this case, the negative resolution becomes administratively final.
Key Deadlines for Applying Under Transitional Provision Five
- Application Period: May 20, 2025 – May 20, 2026.
- Possibility of Extension: Possible but unlikely.
- Key Date: March 20, 2025:
- A denial of asylum becomes administratively final if not appealed within two months.
- Therefore, to qualify for Transitional Provision Five, a denial must have been notified before March 20, 2025, allowing two months for it to become final before May 20.
Final Considerations
Transitional Provision Five represents an opportunity for regularization for those who become irregular due to a final rejection of international protection. However, its application is limited and subject to strict deadlines, making it crucial to analyze each case carefully before deciding to withdraw an appeal or wait for a final resolution.
By: Giulia Nutu