Spain - High National Court, 23 March 2011, nº 1423/2011

Country of Decision:
Country of Applicant:
Date of Decision:
23-03-2011
Citation:
1423/2011
Court Name:
High National Court. Chamber for Contentious Administrative Proceedings, 4th section (Rapporteur: José Luis Requero Ibáñez)
National / Other Legislative Provisions:
Spain - Ley 5/1984
Spain - reguladora del derecho de asilo y de la condición de refugiado (Act regulating the right to asylum and refugee status) - Art 5(6)
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Headnote: 

The case refers to an appeal before the High National Court brought by the Appellant against the decision of the Central Court for Contentious-Administrative Proceedings to uphold the Ministry of the Interior’s denial of asylum.

The Appellant is a Nigerian national.In the application she claimed that when her father died, she was left in debt to the chief of the tribe to which they belonged.In order to settle the debt, the Applicant was forced to marry the tribal chief and was kept as a prisoner.

Therefore, the High National Court upheld the Applicant’s appeal as it deemed the situation suffered by women in Nigeria, and particularly forced marriage, constitutes a form of persecution for membership of a particular social group.

Facts: 

The Appellant is a Nigerian national and claimed that when her father died, he left unpaid debts to a man who was the chief of the tribe to which they belonged.In order to settle the debt, the Applicant was forced to marry the tribal chief in 2005. This man kept her prisoner until she managed to escape in 2009. 

Decision & Reasoning: 

The High National Court rejected the decision by the Central Court for Contentious-Administrative Proceedings and also reversed the challenged judgment as it deemed the Appellant’s narrative of persecution to fall within the definition of a refugee in asylum law and did not present grounds of inadmissibility (as established by the Court of First Instance). Therefore, the purpose of this appeal is the admissibility of the application based on the aforementioned grounds of persecution.

 

In effect, according to the reasoning of the decision-making body, the allegation of persecution arising from tribal customs and beliefs (such as circumcision, forced marriage, witchcraft etc.)is not in principle excluded from the ambit of asylum or the recognition of refugee status, providing all other elements of the definition and legal requirements are present (individual persecution, tolerance thereof or lack of protection by the State, etc.).  

 

Furthermore, the High National Court based its decision primarily on the Supreme Court’s case law criteria which establishes that the "absence of protection and the social, political and legal marginalisation of women along with the evident, severe violation of their human rights” constitutes grounds for asylum as they are within the framework of gender based and social persecution.Additionally, the decision was based on the UNHCR reports on the situation of women in Nigeria which the Supreme Court has also adopted as legal criteria for reference in this matter.According to these reports, women in Nigeria routinely suffer violations of their fundamental rights. For example, child marriages are common, women do not have any inheritance rights, and some estimates indicate that the majority of women undergo genital mutilation.

Outcome: 

The appeal was upheld and therefore the challenged judgment was reversed.

Observations/Comments: 

The object of this appeal was the decision by the Central Court of Contentious-Administrative Proceedings number9 in the Summary Proceedings 227/2009, which rejected the appeal brought by the Appellant against the Ministry of the Interior’s decision of 26th May 2010 denying recognition of refugee status.

 

In regards to the judgment under discussion, it appeared that section (b) of Article 5.6 of Act 5/84 of 28th March (amended by Act 9/94 of 19th May) provided cause for inadmissibility because none of the grounds which would allow refugee status to be recognised had been invoked, such as fear of persecution on grounds of race, ethnicity, religion, membership of a particular social group, or political opinion.We find that the only reason for the finding of inadmissibility of the application for international protection is tied to questions of merits and that is why the High National Court evaluated whether the application had any relation to the groundswhich would allow recognition of refugee status.

Other sources cited: 

- UNHCR report of 22nd April 2009

- UNHCR reports on the situation of women in Nigeria

Case Law Cited: 

Spain - Supreme Court, 19 December 2008, No. 7166/2005

Spain - Supreme Court, 29 February 2008, No 6596/2004

Spain - Supreme Court, 19 May 2008, No. 9877/2004

Spain - Supreme Court, 31 May 2005

Spain - Supreme Court, 7 July 2005

Spain - Supreme Court, 15 February 2007

Spain - Supreme Court, 6 October 2006

Spain - Supreme Court, 28 February 2006