“THE TERMINAL” IN BARCELONA - a client stranded in transit for weeks
And it was my bad, but in the end, a triumph.
I was hired in order to assist an Afghan national, in order to prevent by all legal means available the return to the place of origin, i.e. TUNISIA. Client feared that, if returned, he might face imprisonment, and he had no valid documentation. Well, actually no documentation whatsoever.
If possible, I should try to have the client released in Spanish Territory.
Alas, this last possibility was barren from the beginning: since the client was seized with a forged passport, should the Border Police or the Judge in charge let him access Spanish territory, he would be immediately arrested for counterfeiting official documents. He’d be most likely processed in a speedy trial and sentence would suppose immediate expulsion.
However, we kept this option open: it might be leastways better than immediate expel to Tunisia.
The goal was getting him back to Afghanistan.
Premises of the equation I was immersed in:
The client was already being processed for immediate return. A public defendant assisted him with no success.
The client had also claimed right to asylum. He was assisted by another public defendant. Claim -administrative- was dismissed, therefore the only available recourse would be filing an appeal before the central courts in Madrid (Audiencia Nacional). This claim takes long and it does not stop the return procedure.
The return procedure was not quite finished though, and it was used in our advantage. But again, it would not suspend per se the return order.
As things were, my intervention took place when return order was in place and asylum procedure rejected (by administrative authorities). But, since the detention would foreseeably take longer than 72 hours, Police needed Court permission to intern the detainee in an immigration center, until a return flight was available.
Opposition in the Court appearance had little chance to succeed, it was just bureaucracy. However, I filed the next morning a plea for amendment (recurso de reforma) and subsidiary appeal (recurso de apelación). This was just a manoeuvre with little chance of success. Notwithstanding that, it kept the judge busy, and I seized the opportunity to submit also a request for urgent injunction on cautionary measures, based on the intention to file an asylum appeal before Madrid Courts, providing as evidence a copy of the asylum granted to the brother.
Mind you, this piece of evidence was very weak: it was just a printed image of a letter from the UK government, granted to a relative which is neither ascendant or descendant of the client, dated more than a decade ago.
It worked nonetheless.
The Judge granted cautionary measures, thus suspending the return procedure and “leaving with no effect the internment measures”. This implied releasing the detainee.
And then, the movie begins: Police interpreted the decision in a very restrictive way. They would release the detainee, but he would not be allowed to enter Spanish territory, without valid documentation.
Therefore, the client was released in the international waiting terminal at the Airport.
This is most extraordinary and it has not happened in decades in Spain, according to judges and police officers this counsel has spoken to.
I was left with very little devices to fight with. On the bright side, client was virtually free. At least, free to go. Therefore, it was possible for him to leave the country, if the means were available.
Alas, client had no ID documentation whatsoever. With assistance of other people, it has been possible to get a safe passage issued by the embassy. First draft was faulty for it lacked photograph and it was only written in Spanish. As a consequence, airline rejected such document as valid for boarding.
Time was running out: cautionary measures had already been raised to the competent courts for their review. If reviewed, they would most likely be rejected/dismissed, and therefore original return order would again be in force and implemented.
In the meantime, I submitted a final recourse against police order, for it was necessary in order to take the return order to Court.
Let me clarify this: the only thing Court decided up to that moment -and temporarily- was to suspend the expel order, but no further procedure was lodged, because the path was not available yet. On the one hand, public defendant had started with the previous steps for asylum procedure in Madrid, but it would take time (I kindly asked the public defendant to go on instead of me because it would be faster in any case). Public defendant was most helpful on this regard.
On the other hand, the return procedure per se could not be challenged in Court without the final Police decision (hence the recourse). Problem is, such decision is usually deemed a dismissal “by silence”, i.e. without ruling. Such lack of ruling is legally interpreted as denial and leaves the path free for challenge in Court. Then again, it would take a little longer than a month.
In the meantime, client would surely be expelled, for only the cautionary measures prevented the inexorable execution of the order. No Court procedure would otherwise stop the return.
Even if it looks nonsensical, the Court procedures can go on without stopping the administrative decision.
Only cautionary measures in force could prevent that, and as I explained, they had already been requested. There was no time in the Asylum procedure to submit another request for similar measures.
Without additional documentation, the review of the precautionary measures was going to be dismissive.
Such as things were, the only actions I tried were desperate and somewhat unorthodox. On the one hand, I requested from the Court on duty the next weekend whether it was possible to submit a writ of Habeas Corpus. Habeas Corpus is an extraordinary demand, for cases where detention/arrest is somewhat illegal or faulty.
Judged dismissed the request, because formally the client was not even detained. I claimed that freedom of movement was restrained and that my client’s situation was against the most basic human rights.
It did not work.
Then I submitted a writ requesting review and clarification of the original cautionary measures, enquiring whether police misinterpreted the ruling, for such order implied immediate release in Spanish territory and any other interpretation would go against my client’s rights. I submitted additional arguments, but the basics were those.
It did not work. Not because of the arguments, but just because the Judge put forward the argument he was no longer in charge of the issue. The Court in Barcelona (the one with final review decision) should provide the clarification.
Mind you, I was most reluctant to appear before this Court in Barcelona, for it would speed up the review of the cautionary measures. And as I said, they would very probably be annulled.
All this delaying and embroiling worked nevertheless: it gave time to get a proper safe passage issued by the Embassy.
On Friday 24 at 16:00 (i.e. two weeks after client landed in Barcelona) I was given the safe passage documentation. I was driven to the airport and given some money, in case client would need additional cash to purchase a ticket.
He had enough money and I used it to exchange it to EU currency and paid the ticket. Police helped (they really wanted to get rid of the “problem”).
At 17:50 I gave the ticket and remaining cash to client (the extra cash I was given was returned to the person that gave it to me in case it was needed, afterwards).
At 18:05 the client was escorted to the boarding gate by the Police, back to his country, as it was intended, instead of being sent to Tunisia, where he would most likely be jailed without documentation.
Final note: the cautionary measures where finally dismissed on Monday 12:00, that means three days later, but only 4 working hours after client left the Country.
Client had spent almost two weeks in transit. Not in the detention area or in a center, where he would be assisted and have access to some facilities.
He spent all those days in the waiting zone, paying for food and cleaning up... well, you know.
It was my bad, I guess. But thanks to that we managed to have him back home, instead of being sent to where he came from, where he would have faced a dreadful situation.
Now I am in the process of submitting writs for withdrawal in all proceedings (cautionary measures procedure, challenge and appeal recourses), since they have become pointless.
Now, please find the gems of luck in this story, for there were some circumstances and strikes of fortune that really really really made the outcome possible.