Spain - High National Court, 11 July 2011, 315/10

Country of Decision:
Country of Applicant:
Date of Decision:
11-07-2011
Citation:
315/10
Court Name:
High National Court
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Spain - Asylum Law 12/2009
Spain - Asylum Law 12/2009 - Art 46
Spain - Asylum Law 12/2009 - Art 47
Spain - Asylum Law 12/2009 - Art 48
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Headnote: 

At issue in this case was whether the applicant qualified for subsidiary protection or protection for humanitarian reasons, considering her personal circumstances of extreme vulnerability.

Facts: 

The applicant escaped from Nigeria where she had been abandoned by her husband. She had also had difficulty with her husband’s six other wives. She arrived in Algeria where she met her future second husband who was deported. They met again in Morocco. She gave birth to a child in Morocco and, after many difficulties, she arrived in Spain with her child where she gave birth to a second child. During this period she suffered considerable hardship.

The application for refugee status was refused. The Ministry of Interior held that a well-founded fear of being persecuted had not been established, and that grounds for subsidiary protection were not identified.

Decision & Reasoning: 

The appeal challenged the Ministry of Interior’s decision requesting, inter alia, that subsidiary protection or protection based on humanitarian considerations be granted.

The Court stated that the applicant’s reasons for leaving Nigeria did not correspond to persecution but to a situation of adversity and poverty. It was not proven, not even by “slight evidence”, that she had been persecuted.

When analysing the possibility of granting protection for humanitarian reasons, the Court examined the new Asylum Law 12/2009 [transposing the Qualification Directive] and its provisions concerning special consideration to “Minors and other vulnerable people” (Section V, Arts. 46 to 48).

The Court affirmed that the applicant could be defined as a vulnerable person as she was on her own in Spain, in an uncertain and adverse situation with two children.

In considering the provision on humanitarian considerations in Art. 46 of the new Asylum Law 12/2009, the Court stated that the applicant should be granted protection (based on humanitarian considerations), as otherwise a strict interpretation of this provision would deprive it of its meaning and purpose which is different to subsidiary protection status. The Court noted that the decision was based on the specific circumstances of the applicant.

Outcome: 

The decision was partially successful: refugee status was not granted but the applicant and her children received protection in the form of authorisation to stay for humanitarian reasons.

Observations/Comments: 

This decision is important as it provides an interpretation of Asylum Law 12/2009 which is not clearly defined in law. The introduction of subsidiary protection status has been identified as an obstacle to the application of Asylum Law 12/2009 due to its narrowing of the focus of humanitarian protection (which had a wider interpretation in the former asylum law.)