‘Thou shalt not judge’ … Spanish judicial decision-making in asylum and the role of judges in interpreting the law

Abstract

Spain has traditionally been a country of emigration. However, during the mid 1980s, a regular trend of increasing immigration emerged that over time has modified the demographic composition of the country. The number of non-nationals living in Spain has been rising quickly and at 1 January 2009 more than five and a half million foreigners (5,598,691 people) were registered as living in Spain. Of them, 40.18 per cent had received a residence card under European Community (EC) law and 39.73 per cent under the general immigration regime. Accordingly, 20.09 per cent of the foreigners registered in the country at that time were not lawfully resident (although this figure includes lawfully present individuals whose claims were still pending). Given that the Spanish census at 1 January 2009 recorded a population of more than forty-six and a half million people, about 12 per cent of the Spanish population at that time were non-nationals. Since then the figure has continued to rise and the number of non-nationals lawfully resident in the country increased to 4,495,349 foreigners lawfully resident at 31 December 2009. These figures are relevant, not only as they reveal a clear immigration trend, but also in so far as they include individuals whose grounds for residence arise from a protection claim other than refugee status under the 1951 Convention Relating to the Status of Refugees (Refugee Convention). Therefore, individuals granted subsidiary protection or other protection-related statuses are included in these statistics.