The applicant, Colombian national, applied for international protection on 4 September 2019 and he was informed on the same day of his rights in the asylum procedure, including the right to free legal aid from the state in case he lacked sufficient financial resources. The applicant was handed over a form where he could tick the services he requires. He requested an interpreter, but the form was left blank on the part of lawyer assistance.

The application for asylum was rejected as unfounded because the determining authority found no nexus between the alleged persecution and the political opinions of the applicant. In the appeal, the applicant claimed amongst other reasons, that he did not benefit of legal aid, and this affected his rights before the determining authority. The first instance court rejected the appeal and mentioned that the applicant has been duly informed of his rights and expressly on the possibility to apply for legal assistance but since he did not request so. The fact that he was informed about his rights is demonstrated by the fact that he requested and ticked the box in the form for interpretation services.  In addition, the first instance court found that the case of the applicant did not fall under the situations where legal aid is mandatory.

The applicant’s lawyer submitted an appeal on points of law claiming that the absence of legal aid infringed his right to an effective judicial protection.  The appeal on points of law was admitted for the purpose of clarifying and setting the case law on the issue whether, in cases where legal aid is not mandatory, implicit or presumed waivers of that right may be admitted on the part of applicants for international protection, or on the contrary, there must necessarily be an express waiver of that right, as well as the impact that should be given in this matter to the information provided on the right to such assistance.

The Supreme Tribunal reiterated that Article 22 of L.O. 4/2000 on the rights and freedoms of foreigners in Spain and their social integration, provides that ‘third country nationals in Spain are entitled to legal assistance in administrative procedures that may lead to their refusal of entry, return, or expulsion from Spanish territory and in all procedures relating to international protection, as well as to the assistance of interpreters if they do not understand or speak the official language used. These aids will be free of charge when they lack sufficient economic resources according to the criteria established in the regulations governing the right to legal aid’.

The tribunal further noted that the case file showed that the applicant was informed of the rights, obligations and assistance requested. It resulted precisely that he was informed of the right to legal assistance for the purpose of formalising the application and throughout the course of the procedure, with the observation that legal aid will be provided free of charge by the Spanish State when he lacks sufficient financial resources. However, there was no record or no indication of the result of the information on the right to legal assistance whereas the request for interpreter assistance and the delivery of an information leaflet were expressly recorded in the section of the assistance requested, but the boxes corresponding to the NO were left blank. In such case, it is difficult to know whether the asylum seeker requested the assistance of a lawyer, of his choice or of his own motion, or whether he renounced that assistance.

The tribunal has limited the procedural debate to the cases where legal aid is not mandatory, as in the present case where the application for international protection was lodged within the national territory and analysed whether implicit or presumed waivers of the right to legal aid may be allowed, or on the contrary, the file must necessarily include the express waiver of such right. It was first mentioned that compulsory legal aid is provided only for applications made at the border, which is not the present case.

The tribunal concluded that in cases where there is proof of complete and correct information provided to the applicant— in writing signed by the foreigner — of the rights in the international protection procedure and of the assistance requested, failure to mark any of the boxes must be interpreted as a valid tacit waiver of such assistance, where it is not mandatory.