1. Introduction

The Ukrainian refugee crisis of 2022 put one of the most pressing problems of contemporary asylum systems in the spotlight of academic and public debates: discriminatory treatment based on nationality. The application of various criteria in nationality-based asylum policies, as is the case with migration control and integration policies, is one of the most widespread practices in the world. These differential treatments based on various rationalities are expressed and legitimised by States through certain discourses. They conclude that the distinction being made is not only justified, but they argue the need for such distinctions for the asylum system to function more effectively. However, the way in which asylum seekers are treated in an exclusionary, unequal and unfair way according to their nationality has often been flagged as discriminatory (Sow, 2022; Costello & Foster, 2022).

The aim of this paper is to analyse how the governments of Spain and Mexico have implemented discriminatory institutional practices in their respective asylum systems according to nationality; and how this has impacted people from certain countries through processes of exclusion and inclusion, both in recognition and in the type of protection recognised. Likewise, this study highlights the existence of the political agendas of States (and international organisations), which establish who deserves or does not deserve refugee status among those seeking protection. The criteria applied contravene the principles established—such as the principle of equality—in international documents such as the Geneva Convention, as well as in the domestic legislation of countries and their respective asylum laws.

The Spanish and Mexican asylum systems present certain features that make them particularly conducive to examining current trends in asylum regimes around the world. Firstly, in both countries there has been a significant increase in the number of people arriving in their territories in search of international protection over the past decade. The so-called migration and refugee crises, which underwent major impetus in their respective regions (Pries, 2018; Selee, 2023), meant that figures leapt from a few thousand asylum applications in 2013 to more than 100,000 by 2022 (Ministerio del Interior, 2013-2022; UPMRIP et al., 2019; COMAR, 2023). Although in the Spanish case there is greater heterogeneity of origin, both countries have been characterised by a great intensification in the arrival of refugees from Latin America during the period studied (2013-2022). Secondly, certain legislative changes have been enacted since the 2010s: in Spain, Law 12/2009 of 30 October, regulating the right to asylum and subsidiary protection; and in Mexico, the Law on Refugees, Complementary Protection and Political Asylum of 2011. Thirdly, these two contexts allow us to contrast what is largely a country of destination (Spain) with primarily a country of transit (Mexico). Fourthly and finally, the most relevant aspect of this study is the fact that both the governments of Spain and Mexico have been meticulous in differentiating between the treatment of those seeking international protection on the basis of nationality (La Spina, 2022; Sánchez & Freier, 2022).

To achieve the intended purpose of this research, firstly, we propose an analytical model based on two concepts that we consider key when it comes to conducting a critical examination of contemporary asylum systems: discrimination on the grounds of nationality; and processes of exclusion and inclusion. We should clarify that exclusion and inclusion are not understood as totalising, but that States establish selective filtering mechanisms of control within and outside the Nation State (Mezzadra & Nielson, 2017). And according to this screening, there are different types of exclusions and differential inclusions, which can lead to the recognition of categories of protection that guarantee rights and civil liberties to a greater or lesser extent. Beyond the recognition of refugee status (also called refugee recognition) through asylum, we need to broaden the discussion by bringing up other legal instruments of protection. The second section of this paper sets out the methodology used in this research. Thirdly, on the basis of statistical and administrative data on asylum applications and decisions, as well as a review of the available documentation and literature, we analyse the functioning of both asylum systems. Special attention is paid to the institutional practices established according to the nationality of the applicants in the different phases of asylum—access, processing and resolution. Fourthly, we discuss empirical findings on the asylum systems of both countries in comparative terms, giving an account of the different forms of exclusion and inclusion in the implementation of asylum policies. We also address some of the chief reasons for discrimination according to nationality. Finally, we set out the main conclusions reached.

2. Theoretical framework. Discrimination on the grounds of nationality as a source of exclusion/inclusion

The global governance of migration, which largely involves policies of control, is principally based on discrimination. Discriminatory treatment occurs in at least two ways. On the one hand, due to the processes of categorisation and the false dichotomy between migrants—for economic reasons—and refugees—fleeing political persecution—that overshadows and excludes forced migrants who do not fit with the standard definitions of refugee (McAdam, 2006; Ceriani, 2016). On the other hand, as a result of multiple factors that modulate and imply discrimination in asylum policies (or other forms of protection) according to nationality. We must not forget that laws and practices also intersect with other categories, such as social class, gender, sexual orientation or ethnicity/race. However, this paper focuses on the category of nationality because it is one of the central elements in this differentiation in the implementation of asylum policies and the recognition of protection in both countries.

The European courts state that when people are treated differently according to their nationality, there must be strong reasons otherwise discrimination will be apparent (Castilla, 2022). However, as practice reveals, the differences made on the grounds of nationality in the management of migratory flows highlight that the principle of equality is considerably limited in the field of migration (Farcy, 2020). Thus, several jurists question the existence of adequate legal mechanisms to remedy discrimination based on nationality incorporated into regulations and proceedings. On the contrary, legal texts and the bodies that wield legislative and judicial power would be supporting such discrimination (Castilla, 2022; La Spina, 2022).

From a social and political perspective, the positions of the different social actors diverge. Governments and international organisations build arguments in favour of differentiated treatment by nationality. They class people from certain countries as fundamentally “economic migrants”, that is, not deserving of such protection. At the same time, they make vague allusions to national security and public interest (Woollard, 2018; Schmidtke & Gutiérrez, 2021). The academic community, on the other hand, finds multiple instances of discrimination in the design and implementation of asylum management (Castilla, 2022; La Spina, 2022). Differentiation on the grounds of nationality has come to be seen as a covert form of racial or ethnic discrimination. For this reason, some countries have moved to immigration systems based on universal and meritocratic criteria (Farcy, 2020).

This paper argues that differentiated treatment by nationality is discriminatory, insofar as the differences do not correspond to the protection needs of applicants and the fulfilment of human rights. On the contrary, these discriminatory practices are justified in an arbitrary and discretionary manner, according to national interests and population control, such as international relations, geopolitics, ideological questions, cultural proximity or labour reasons. In practice, officials in asylum offices responsible for making decisions on asylum cases decide in a “legally inexplicable way” by deliberately acting against cases brought by migrants, in accordance with what asylum means for the country in economic and political terms (Morales-Vega, 2021, p. 44).² In this regard, we must examine how the varied discriminatory institutional practices throughout the different stages of the asylum process translate into various forms of exclusion and inclusion of asylum-seekers (see Figure 1).

Figure 1. Analytical framework

The different exclusion and inclusion processes are constituted by three variables in this research. Firstly, being more or less likely to be excluded or included under a certain instrument of protection. Secondly, the degree of access to the successive phases of the asylum system: whether applicants are helped or hindered, sooner or later, to continue with their respective asylum applications. In other words, their applications are pushed through or held up, leading to their exclusion or inclusion processes coming sooner or later. This issue is not trivial since merely getting through certain stages of the asylum procedure allows the applicant to enter the country and remain in the territory, at least for a while their application is resolved. This guarantees protection, temporarily at any rate, as well as coverage by certain social services, training, employment and study opportunities, or finding other ways to obtain documents to achieve settlement in the country.

Thirdly, the fact that governments recognise various categories of protection, beyond refugee status, which entail fewer rights and levels of protection (Menjívar, 2006; Espinar, 2010). The main differences between these categories are: the scope of the recognition of rights; the durability of protection, if it is temporary, indefinite or permanent; and the revocability of protection. The different categories of protection in each country are briefly outlined below.

The regulatory framework of the asylum law in Spain contains three legal protection statutes: i) refugee status as defined in the Geneva Convention of 1951; ii) subsidiary protection (SP)—for those who do not comply with the definition of the Convention, but returning to their country would endanger their life or physical integrity. It must be remembered that both categories, refugee status and SP, are what is known in Europe as International Protection. Exceptionally: (iii) protection for humanitarian reasons, with the aim of preventing the person from suffering inhumane treatment if returned to their country of origin. This latter form of protection is recognised, where appropriate, following a decision denying international protection and if the conditions of applicability are developed in the relevant legislation on immigration (Organic Law 4/2000). The Spanish refugee statute guarantees the authorisation of residence and permanent work, freedom of movement, the right to family unity, among others (see Article 36 of Law 12/2009). These rights are also contemplated for those who with recognised SP, although there are differences between the two forms of protection. In contrast, protection for humanitarian reasons generally comes with a one-year residence and work permit, which can be extended for a further year if the circumstances justifying the awarding of such a permit are maintained. In addition, temporary protection is included despite the fact that it is not covered by the asylum law but rather through the Regulation implementing the Temporary Protection Directive (2001/55/EC). This protection follows another alternative procedure, although it not mutually exclusive from the international protection procedure, both of which may be requested. This protection guarantees residence and work for one year, and can be extended for a further two years (Ministerio de Inclusión, Seguridad Social y Migraciones, 2022).

Since the legal changes made in 2011, Mexico has renewed and created different categories of protection to safeguard migrants arriving in its territories. The most prominent one is known as refuge, which we refer to as asylum in this paper for the sake of ease. It incorporates both the definition of the Geneva Convention of 1951 and the Cartagena Declaration of 1984. Persons who are recognised as refugees in Mexico are granted legal permanent residence, which allows them to reside and work in the country indefinitely. When the person is not recognised as a refugee, the same resolution should consider granting complementary protection (CP), based on the fact that returning to their country of origin would pose a risk to their life, or the danger of being tortured or ill-treated. People who obtain CP have the right to permanent residence, but they are not granted the same benefits as refugees. In parallel to their asylum processes, applicants may apply for a visitor’s card owing to humanitarian reasons (VCHR) from the offices of the National Migration Institute (INM, for its acronym in Spanish) (Migration Law, 2011). These cards offer temporary legal security, providing a work and residency permit for up to one year, freedom of movement through Mexico, the option of leaving and re-entering the country multiple times, and renewal of the card while the process remains unresolved. It should be noted that, with some exceptions, applicants for refugee status in Mexico must complete their proceedings in the same place where they begin (Ortega, 2022).

3. Methodology and sources

For the systematic and thorough analysis of how discriminatory practices based on nationality in the asylum process have led to exclusion and inclusion processes, we posed the following questions in the three stages of the asylum procedure (see Figure 2). In the last phase, a question was added that incorporated temporary protection instruments into the discussion, which followed separate processes from the asylum procedure.

Figure 2. Questions at the various stages of the Asylum procedure

To answer the above questions, we analysed both quantitative and qualitative data in a logic of complementarity and triangulation of the various data sources. We collated and consulted recorded asylum figures in Spain and Mexico between 2013 and 2022. Subsequently, we conducted a descriptive statistical analysis, focusing on asylum applications and decisions by nationality, as well as on each of the recognised legal categories of protection. For Spain, we used data from the Spanish Home Office (Ministerio del Interior), specifically reports on Asylum in Figures and the Statistical Yearbook. In the case of Mexico, the data come from the Mexican Commission for Refugee Assistance (COMAR, for its acronym in Spanish). In addition, we have analysed the statistics of the Unit for Migration Policy, Registry and Identity of Persons (UPMRIP, for its acronym in Spanish) and figures from the INM for VCHR cards. The choice of the period studied is due to the fact that data are available for Mexico from 2013 onwards. Furthermore, it allows us to observe the importance in terms of the figures of the legislative changes that have taken place with regard to asylum since 2010.

Regarding the limitations of the study, in comparative terms, it should be borne in mind that Mexico has no public statistics on the number of rejections. This would be important to record, especially since such exclusions could be discriminatory on the basis of nationality. Therefore, only the rejections in the case of Spain are analysed. The ‘inadmissibility and refusal procedure’ provided for in Spanish asylum legislation implies that any applications that the authorities deem do not deserve to be processed or studied, or which do not correspond to Spain under the Dublin Regulation, are directly rejected (Article 9 and 21 of Law 12/2009). Secondly, withdrawal rates from the asylum procedure in Mexico are very high because of the obstacles faced in continuing the procedure, or because the applicants intend to travel through Mexico to reach the United States—either undocumented or using a VCHR to move to the North. This situation affects the acceptance and rejection rates of the Mexican system, which only consider those who continued with their applications until a resolution is obtained. This contrasts with Spain, where most of those who initiate their asylum application see it through to the final resolution.

Finally, to achieve the objectives of this research, we consulted and examined secondary sources, such as legal texts on international protection and migration, official government documents, reports from non-governmental organisations and newspaper articles.

4. Results. Analysis of Discrimination by Nationality in the Stages of the Asylum Procedure

4.1. Access

In Spain, the possibilities of applying for asylum are marked by the place where applicants enter Spanish territory. Most applicants cross the air border, with Madrid-Barajas airport being the main gateway to the country due to its higher number of international flight connections. Since 2009, the asylum law has established a two-pronged system between those who enter Spanish territory and can file their applications within Spanish territory, and those who file their applications at border posts, that is, at airports, ports, land borders and immigration detention centres through the procedures of inadmissibility and refusal to process. Regarding the first route, most asylum applications were admitted for consideration (85 per cent of applications admitted; Ministerio del Interior 2010-2021). In the second route, a much higher percentage were declared inadmissible or rejected outright. Since the enactment of Law 12/2009, applications submitted to immigration detention centres have been processed using an “accelerated procedure”. In other words, in administrative terms, they were considered to have been made “at the border” even though the applicants were already inside the territory. This means that applications made in such centres have had fewer guarantees in the asylum procedure, and thus applicants have encountered greater difficulties in having their applications considered legitimate.

The figures for refusals at initial decision available for the period 2013 to 2021 for the 26 countries with the highest number of applications (accounting for around 95 per cent of the total) affected African countries the most. North Africans (Tunisia, Algeria and Morocco), who are most likely to file applications due to the geographical proximity of these countries to the southern border of Spain, registered the highest percentages of refusals at initial decision (50.4%, 39.4% and 22.8%, respectively).³ In addition, several countries in sub-Saharan Africa also have relatively high percentages of refusal at first decision (Gambia, 11.7%; Senegal, 10.7%; Guinea, 9.8%; and Cameroon 9.7%). This practice by State institutions and authorities has been accompanied by a discourse that labels applicants of primarily African origin as economic migrants who do not require protection. In contrast, applicants from countries in Latin America, Europe and Asia, which register some of the highest asylum applications made, have much lower refusal rates. The five countries that have registered the highest number of applications from these regions (accounting for approximately two thirds of the total number of applications) have very low percentages of refusal at initial decision: Venezuela, 0.1%; Colombia, 1.2%; Syria, 0.9%; Honduras 1.9% and Ukraine 1.0%.

Furthermore, a significant proportion of those in need of protection who accessed Spain via Ceuta and Melilla, especially from Africa, did not apply for asylum to avoid having to wait for months or even years in those cities until their applications were resolved. They could choose to remain in an irregular administrative situation, to be transferred to mainland Spain more quickly. However, asylum legislation determines that asylum-seekers have the right to move freely through Spanish territory (Barbero, 2021).

Table 1 shows that the majority of asylum seekers come from the Latin American region: Venezuela, Colombia, Honduras, Nicaragua, El Salvador and Peru; from the African continent, North Africa: Algeria and Morocco; Sub-Saharan Africa: Mali and Senegal; as well as Syria and Ukraine (Ministerio del Interior, 2013-2022). These twelve nationalities represent more than 84% of the total applications made in Spain.

In Mexico, most of those in need of protection arrive in the country irregularly through the strip of its southern border bordering Guatemala and seek asylum in Chiapas; these are migrants who have difficulty obtaining conventional documents to access the country as tourists or through work visas. This is the case for the vast majority of people who arrive in Mexican territory from the countries of Northern Central America (NCA), Honduras, El Salvador and Guatemala. Given their condition of irregularity, immigration control policies at the southern border meant that, on numerous occasions, potential asylum seekers were detained and deported before contacting the COMAR authorities to file their applications.

If the person is not detained they can go, within 30 days of internment in Mexican territory, to the offices of COMAR—in Tapachula, Palenque, Tenosique, Acayucan, Mexico City, Guadalajara, Tijuana, Ciudad Juarez, Saltillo and Monterrey, or in places where COMAR is not present, to the offices of the INM (UNHCR, n.d.) and follow the procedures in place there. On the other hand, migrants can apply for asylum in migrant holding centres if they are being detained.

In smaller numbers, migrants arrive by plane as tourists to the airports of Mexico City or Cancun and then file their applications. Although those who access the country in this way are not as exposed to deportation proceedings, there are cases of the authorities blocking entry into the country for some applicants who arrived by air (Vargas León, 2021). In 2022, according to figures from COMAR, the majority of applications were made in states bordering Mexico with Guatemala: 70.9% in Chiapas (with 76,261 applications) and about 5% in Tabasco (with 5,718) (COMAR, 2023). In recent years, due to the difficulties of following the processes in cities on the country’s southern border, a growing number of migrants have chosen to make their own way further north either alone or in caravans to apply for asylum in Mexico City.

Following the legislative changes introduced in 2011, the number of applications submitted up to December 2022 stood at almost 420,000 (see Table 2). The following countries accounted for more than half of all applications: Honduras (32.8%) and Haiti (19.1%), followed by El Salvador (10.2%), Venezuela (10.2%), Cuba (10.0%) which make up a further 30%. Of these, countries such as Honduras and El Salvador have been two of the main sources of applicants from the outset; Venezuela achieved a prominent place from 2016 onwards, but especially in 2017; while Haiti and Cuba joined later, from 2019 onwards.

4.2. Procedure

According to Spanish legislation on Asylum (Royal Decree 203/1995), the asylum process consists of the following stages: 1) submission of the application; 2) admission or refusal to process the application; 3) examination of the case, where the history of the case is studied in depth; 4) and final resolution, indicating recognition or denial of refugee status. The Office of Asylum and Refuge (OAR) is responsible for examining and processing asylum applications. The OAR sends applications to the Inter-Ministerial Commission on Asylum (CIAR, for its acronym in Spanish), which is responsible for assessing the examination of the case.⁴ CIAR then makes a proposal to the Spanish Home Office, which grants or denies asylum under the Legislation on Asylum (articles 2 and 3 of Royal Decree 203/1995).

According to Spanish legislation on Asylum, the maximum period for processing an application is six months. However, this time limit is frequently exceeded, sometimes with delays of more than two years (Defensor del Pueblo, 2016; Amnesty International, 2016). In contrast, applications for temporary protection for people who arrived in Spain from Ukraine from 10 March 2022 were processed and resolved within approximately 24 hours (La Moncloa, 2022).

In addition to the problem of delays in the Spanish asylum system, applications from certain populations are often put on hold to avoid recognition of refugee status. In keeping with the so-called precautionary principle, the OAR tends to delay the cases of certain populations when it is unclear how long the armed conflict will last. This has occurred over various periods with nationals from the Ivory Coast, Central African Republic of Congo, Mali, Venezuela, Iraq and Ukraine (before the outbreak of war in 2022) (Favieres, 2015; El Defensor del Pueblo, 2016; CEAR, 2017). In the case of Mali, the report on the situation in the country prepared by the European Asylum Support Office (EASO) and UNHCR's position on returns to Mali (CEAR, 2022) meant that from 2020, its procedures would no longer be suspended.

In the Mexican asylum system, after an application is admitted for processing, an eligibility interview is held—in which the applicant is questioned about the reasons for leaving their country of origin, providing any documentation deemed appropriate—and finally a resolution is reached (UNHCR, n.d.). In contravention of the provisions of the law on refugees, which specifies a maximum period of 45 calendar days to reach a resolution, the system often takes several months or even years to complete these two steps. While waiting for their asylum applications to be resolved, applicants encountered significant difficulties in finding employment, especially in cities in southern Mexico (Ortega, 2022). Moreover, some of the proceedings are conducted with migrants deprived of their liberty in migrant holding centres. In such centres, many potential applicants are pressured by the authorities to accept assisted return processes (expulsion to their countries of origin) (Hoffmann & Rodríguez, 2021; Bourgeois, 2021). Some programmes allow people to leave holding centres to continue with their application procedures without remaining under detention.

In order to reduce the problem of delays in proceedings, since 2018 the Mexican authorities have established a series of fast-track procedures for Venezuelan, Honduran and Salvadoran migrants. In the simplified procedure, COMAR first analyses eligibility according to the extended definition of refugee set out in the Cartagena Declaration; otherwise the conventional definition is applied (Schmidtke & Gutiérrez, 2021). COMAR uses three tools to streamline these processes: 1) a document that provides information from the country of origin containing in-depth and specialised investigations; 2) an eligibility interview guide that allows COMAR to identify the legal and empirical grounds for evaluating the case; 3) Model resolution, which is applicable to most cases (Schmidtke & Gutiérrez, 2021). The merged procedure, as its name suggests, combines two stages of the process into a single one, where both the data and information from the application registration form and the information collected in the eligibility interview are collated. All this reduces processing times from several months or more than a year to a few weeks (Schmidtke & Gutiérrez, 2021).

4.3. Resolution

Favourable recognition rates are very low in the case of Spain: just over nine per cent of all people who have applied for asylum have been granted international protection. This means, in absolute terms, that only 20,633 were granted refugee status and 27,977 were granted SP status (see Table 3). Likewise, there are notable differences according to the different origins. Among the main nationalities by number of applications made, the countries with the highest percentage of recognitions were: Honduras (7.2 per cent), Syria (5.6 per cent), El Salvador (4.7 per cent), Morocco (4.5 per cent) and Nicaragua (4.4 per cent). In terms of SP status, the following countries of origin had much higher percentages than the rest: Mali (40.6%), Syria (35.7%) and Ukraine (10.3%). Therefore, these last three countries would stand out in percentage terms about more durable legal protections.

However, the picture of protection afforded in Spain would not be complete without observing the other legal categories that confer relatively short stays in the country. With regard to humanitarian protection, 99 per cent were granted to 113,486 Venezuelans for humanitarian reasons between 2019 and 2022 (Ministerio del Interior, 2019-2022). Furthermore, 180,785 Ukrainians were granted temporary protection between 9 March 2022 and 26 July 2023 (La Moncloa, 2023).

Different discourses from government actors sought to justify the unequal application of these temporary protection instruments. Regarding the Venezuelan population, the then president of the government formed by the conservative Partido Popular (PP) party, Mariano Rajoy, wrote an opinion piece in the national press in which he expressed: “We want Venezuelans. We cannot be indifferent to the humanitarian, political and economic plight they are suffering every day in our sister country” (Rajoy, 2016). As for the situation of Ukrainians after the beginning of the war, the president of the Congress, Meritxell Batet, of the socialist Partido Socialista Obrero Español (PSOE) party expressed “[Spain] stands with the country [Ukraine] that has seen international law, the rule of law and human rights violated … For all these reasons, Spain stands by Ukraine, Spain feels Ukraine” (La Vanguardia, 2022).

Various migrant and refugee associations, as well as human rights organisations, criticised such discourse and policies, denouncing discriminatory treatment and demanding equal treatment for all applicant populations. Although these are precarious and temporary legal statutes, it is clear that the citizens of these two countries are treated favourably compared to the situations of nationals from other countries, even though the latter who are denied protection have also escaped conflict and situations of persecution and violence.

In Mexico, acceptance rates can be considered high or very high with more than 70% favourable results in the period 2013-2022 (see Table 4). However, this figure must be weighed against the fact that many applicants do not get a decision during the period, as explained above. More than half gave up during the procedure. In any case, in absolute terms, Mexico has granted refugee status to 94,179 people and CP to 8,920 people.

The acceptance rates for asylum applications submitted to the Mexican authorities vary considerably by nationality. Applicants from Venezuela obtained the highest favourable resolution rate, most of whom had been granted refugee status. Honduras and El Salvador follow with percentages close to 80% favourable resolutions. Cuba, Guatemala and Nicaragua have between 49 and 63 per cent favourable outcomes. In the case of Haiti, 28.4% received some kind of protection, around 40% of which were granted CP. The outcomes of asylum applications in both absolute and relative terms are best understood through three decisions of the Mexican government: 1) That the definition of refugee set out in the Cartagena Declaration should be applied to Venezuelans since they began to submit their applications and that it should be applied, to a greater extent, to Salvadorans and Hondurans from 2018 onwards (Schmidtke & Gutiérrez, 2021; Sánchez & Freier, 2022). Decisions in favour of these nations had to do not only with the application of legal definitions regarding the country of origin and the conditions of the applicant, but also implied other reasons, including cultural, social or religious proximity. As the general coordinator of COMAR, Andrés Alfonso Ramírez Silva, noted: “There has not been a single year that Honduras has not been affected by an extremely complicated economic, social and political situation within this sister Central American country” (Sánchez, 2021). 2); that fast-tracked procedures should start to be applied to these same three countries (Schmidtke & Gutiérrez, 2021); and 3) that Haitians should be classed as “economic migrants”, under the argument that they reside in third countries in South America (mainly Brazil and Chile) (Infobae, 2022).

With regard to the temporary protection granted by Mexico, it should be noted that between 2014 and 2022, successive Mexican governments have granted more than 226,000 VCHR cards. Statistics from INM and UPMRIP show that between 2020 and 2022, more than 151,000 VCHR cards were granted; a figure clearly lower than the number of applications in those three years, which would be around 290,000. These cards protect against detention and deportation during their validity period until the person has obtained more stable leave to remain, such as permanent residence following recognition of refugee status.

5. Discussion. Convergences and divergences in the asylum systems of both countries: exclusion/inclusion

This next section analyses the similarities and differences between the two asylum systems, highlighting how discrimination on the basis of nationality results in exclusion/inclusion of certain populations. Dissuasive practices have made it difficult to access Spanish and Mexican asylum systems, preventing those seeking international protection from entering the territory, or once they are there, restrictive measures have been implemented to prevent them from entering the asylum procedure. This trend is observed for many other countries (see, for example, Fitzgerald, 2019).

In the access phase, the two countries orchestrate an exclusion of applicants as far as possible, especially for those who have entered irregularly through the southern border, risking their lives during the journey. In addition, in the case of Spain, given its geographical location and those of its enclaves in Ceuta and Melilla, as well as the Canary Islands, its asylum system has operated with exclusions such as the process of labelling the African population as not deserving of protection. On the other hand, other groups of migrants, for example, Latin Americans or Ukrainians, have to some extent had greater power to enter the country and then apply for asylum. In Mexico, since the southern border is very porous, migrants face fewer difficulties gaining entrance to the territory and applying from within. However, there have also been immediate arrests and returns in the case of the Central American population, without guaranteeing the right to seek asylum. This has been especially reported in the case of the caravans of migrants who have arrived in Mexico since 2018.

The figures for refusal of applications at first decision in the case of Spain were significantly tilted towards people of African origin who applied for asylum at border posts. The figures for refusals in the period 2013-2021 suggest that the asylum system at Spain’s southern border operates as a control instrument to prevent applicants from accessing Spanish territory. In a geopolitical logic, the closest countries (in Africa) are targeted the most in seeking to prevent this route.

Another of the similarities in both countries has been the management of resolution time frames in asylum procedures. As several studies have shown, it is a key instrument of control and deterrence (Miranda, 2023; Torre, 2023). In both the Spanish and Mexican asylum systems, a large proportion of applicants must wait much longer than their respective legislation stipulates. Spain is particularly prone to applying prudence to justify putting certain nationalities fleeing conflicts on hold.

Recent changes in the Mexican asylum system could lead to the implementation of time frames more suited to the needs of the applicants. For example, the fast tracking of processing, at least for certain nationalities, has reduced time frames from months and years of waiting to just a few weeks, in the case of applicants from Honduras, El Salvador and Venezuela. This offers them a clear advantage compared to applicants from other countries. However, the quicker processing times for these countries would also have a positive effect on reducing waiting times for other nationalities by reducing the backlog of pending cases. In Spain, albeit outside international protection afforded by the Temporary Protection Directive, other safeguarding measures have been applied very explicitly to a record number of people from Ukraine, despite the fact that the system of international protection was supposedly collapsed before the war.

The slow pace of asylum processes in both countries means that those requiring international protection face greater difficulties in their integration processes in the medium and long term. Paradoxically, in the case of Spain, delays in deadlines can allow the person to access temporary residence on the grounds of working, family and social ties. Some authors highlight the importance of the latter figure in the case of asylum, and the four key eligibility requirements applied: prove a continuous stay of at least three years, have no criminal record, have a pre-employment contract and demonstrate certain links with the country (García-Juan & Alonso, 2023).

When analysing the recognition of applications between the two asylum systems, we clearly see, on the one hand, that Spain has been a destination country for several decades whereas Mexico, with around half of applicants not reaching the end of the process, is a transit country and only just starting to be seen as a destination country. At the same time, there is an important similarity between the two countries in the normative development of legal instruments that grant less protection than the recognition of refugee status. Although the two countries differ in how the various instruments of international and temporary protection are used. Spain recognises a low percentage of applications for refugee status, and a similar percentage of SP. The population with the highest number of applicants has very low recognition rates, while some countries do have a higher percentage of recognition for SP status (Mali, Syria and Ukraine). In Mexico, refugee recognition rates are considerably higher (even if the total number of initial applicants were included in the denominator) with three nationalities clearly standing out (El Salvador, Honduras and Venezuela). In Spain, temporary forms of protection are an alternative that has been used chiefly with two countries: Venezuela (protection for humanitarian reasons) and Ukraine (temporary protection). In Mexico, VCHR cards are granted indiscriminately to all asylum seekers.

In short, while in Spain recognition has been given mostly through temporary protection, Mexico has tended to offer more permanent protection. Spain has followed the tendency of receiving countries to take more advantage of temporary instruments that place migrants in a situation that compels them to continue fighting for indefinite leave to remain in the destination country. In the case of Mexico, a country where immigration flows are still relatively low, the asylum system has made it possible for people from certain countries to reside. However, beyond these differences between the two countries, it is important to note that all these instruments of permanent and temporary protection are applied in a discriminatory manner according to nationality.

In conclusion, it is interesting to briefly revisit the various reasons why governments admit or deny asylum to certain populations according to nationality, such as international relations, geopolitics, ideological issues, cultural proximity or employment reasons. Firstly, international relations and asylum are closely linked. Spain and Mexico showed greater openness, through their asylum systems, to people from Venezuela. This is partly explained by the fact that both governments maintained a political position against the Venezuelan government. In the Mexican case, the pressure exerted during the government of Enrique Peña Nieto on the Venezuelan government was flagged as a position of complacency with the United States (Lozano, 2019). In the same vein, Spain, in alignment with the European position, expressed rejection of the Russian government in relation to the invasion of Ukraine. In short, inter-state relations—bilateral or multilateral—reveal the ideological interest in receiving those fleeing persecution. A second factor that modulates asylum policy is geopolitics and geographical proximity, as a central element in understanding a faster and more favourable response that sometimes happens with applicants from closer countries compared to those from more distant countries. Another third factor is “cultural and social proximity.” One example of this is the Mexican reference to its historical brotherhood with North Central America or the close historical, cultural, linguistic or religious ties between Spain and Latin America; or in the case of Ukrainians in Europe, “as Europeans, Christians, ‘civilised’ and middle class” in the words of Blanca Garcés-Mascareñas (2022, p. 1, original emphasis). In short, identity issues seem to be prioritised when justifying certain policies to citizens. Along these lines, it is necessary to delve into how structural racism operates in the management of asylum, and how the category of ethnicity/"race" also transects the shaping of asylum policies. This is reflected in the discriminatory, unequal and unfair treatment of people from some African countries in the Spanish case, or Haitians in the Mexican case. Fourthly, economic reasons. Although the right to asylum, a priori, should be independent of economic interests and labour demands, it cannot be understood separately. For example, the Spanish government has proposed the factor of employability as one of the requirements to take into account when selecting refugees or asylum seekers for resettlement from Latin America (Vargas Martín, 2023). While in Mexico, there have been some links between the recognition of refugee status and specific work programmes in the south of the country.

6. Conclusions

This study contributes to broadening the discussion from a critical perspective of asylum systems through a comprehensive empirical basis. Comparative analysis shows three fundamental aspects of international protection policies in Spain and Mexico—which can be extrapolated to other countries: firstly, asylum management has been conditioned by restrictive, deterrent and immigration control policies, especially for those who are forced to enter irregularly. Both countries have adopted differentiated treatment according to nationality in access to asylum, which confirms the unequal treatment that occurs in the asylum system, as in the migration system (specifically in relation to tourist and work visas). Secondly, both asylum systems use time to manage refugee flows (streamlining or delaying their processes), which has directly impacted access and recognition of rights. Time is a key variable that favours or harms the aspirations of applicants from one nationality over those from another, also showing the importance of political will in the implementation of asylum. Thirdly, both countries, despite the divergences in the withdrawal rate and the applicability of the categories of protection—permanent or temporary—have implemented selective, differentiating and discriminatory mechanisms based on nationality, establishing a stratification between persons seeking asylum and recognising (or denying) various levels of protection.

In short, the way States operate makes asylum systems arbitrary and discretionary in their implementation. The discriminatory treatment given by governments has more to do with the interests of the host State than with the causes of those who are displaced at a given time and socio-historical context. This can be seen more clearly by outlining the reasons for the discriminatory practices described above, where considerations of international relations, geopolitics, ideological interest, cultural proximity or economic reasons prevail, over and above ensuring the safety and protection of refugees through the effective implementation of the rights contained in the Geneva Convention. Ultimately, States have the power to decide who enters and remains in their respective territories in pursuit of their national interests (Posada, 2009; Castles, 2010). Consequently, the refugee category is shaped through an artificial representation at the institutional level that does not correspond to the multiple realities and experiences of those who are exiled, meaning that a large part of the people fleeing persecution and violence remain invisibilized (Moreno-Amador, 2023).

Therefore, further research is needed on how these categories of protection are built within specific socio-historical moments and contexts. Likewise, more work is needed to explore the various causes of discrimination based on nationality, and how they relate to structural racism. For this analysis, it is essential to continue investigating from an intersectional perspective that encompasses other categories of analysis together, such as ethnicity / “race”, social class, gender, sexual orientation; and how they modulate and delineate asylum policies and respective international protection systems. It is worth mentioning that at present the various applicant populations, including populations that receive more favourable treatment by international protection systems, are facing multiple obstacles in their asylum processes and in the post-resolution stages. Hence, it is important for future research to focus on what happens both with populations that are excluded—in the absence of recognition—and those that are included—within international protection systems. It should also analyse the extent to which these exclusion or inclusion processes continue to operate after passing through asylum systems, and how people achieve recognition and effective access to their rights through resistance practices and political struggles.

Acknowledgements

We would like to express our gratitude to the anonymous reviewers for their constructive comments. This paper was developed within the framework of Project 1680. Refugio y otros mecanismos de protección: poblaciones migrantes necesitadas de protección en México y Estados Unidos of El Colegio de la Frontera Norte. It also received support from the European Union's Horizon 2020 Research and Innovation Programme (HumMingBird; grant agreement 870661), as well as from the Department of Social Work and Social Services of the Universidad Pablo de Olavide.

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