Spain - High National Court, 5 September 2010, 42/2009

Country of Decision:
Country of Applicant:
Date of Decision:
05-09-2010
Citation:
42/2009
Court Name:
High National Court
National / Other Legislative Provisions:
UN Convention on Stateless Persons 1954
Spain - Royal Decree 865/2001 of 20 July
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Headnote: 

The applicant lodged an appeal before the High National Court against the decision issued by the Ministry of Interior to refuse granting stateless status. At issue in the case was whether the reasons given by the Ministry were lawful: if the applicant had already received protection from Algeria and if he fell within the scope of the exclusion clause because of the protection already granted by organs of the UN other than UNHCR.

Facts: 

The applicant submitted his claim for stateless status in Spain in April 2008 based on the following facts: he was born in Western Sahara and lived in the refugee camp of Tinduff (Algeria); his parents and grandparents were born in Western Sahara; he left Algeria in March 2008 seeking an improvement of his living conditions; he did not receive protection from UN organs other than UNHCR; he had an Algerian passport and Western Saharan identification.

The Ministry of Interior refused to grant stateless status alleging that the applicant couldn’t be considered as a stateless person since Algeria, as a first country of asylum, had provided protection to the applicant as it did with all Western Saharan refugees; this protection granted to the applicant meant that he did not need to claim stateless status in Algeria. Also, the United Nations entity in the area provided protection to Western Saharan refugees.

Thus, people coming from refugee camps settled in Algerian territory were provided with the main instruments of international protection assured by 1951 Refugee Convention.

Decision & Reasoning: 

The applicant appealed the decision claiming that having an Algerian passport and having received material assistance did not prove that he had obtained Algerian nationality. Relating to protection granted by United Nation’s organs, specifically, the United Nations Mission for the Referendum in Western Sahara (MINURSO), it has to be considered that its mandate does not include a requirement to provide protection to Western Saharan refugees.

The High National Court held that Algeria had never manifested the intention to recognise Algerian nationality to those Western Sahara’s citizens living as refugees in the camps of Tinduff.

Concerning the protection granted by the MINURSO, the applicant could not be included under the scope of the exclusion clause as someone who was currently receiving “protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees” according to  the 1951 Refugee Convention and 1954 New York Convention (Art 1F(d)).

The Court based its reasoning on the Security Council’s Resolution nº 690 by which the MINURSO was established. The mandate of the mission did not include the protection and assistance cited by the aforementioned exclusion clause but its objectives were very different, among others: to assure the ceasefire, to execute the repatriation program and to prepare the celebration of a free and fair referendum.

Outcome: 

The appeal was successful and the stateless status was granted.

Observations/Comments: 

There is a specific Royal Decree on statelessness which is different to Spanish Asylum Law: Real Decreto N° 865/2001, de 20 de julio, por el que se aprueba el Reglamento de Reconocimiento del Estatuto de Apátrida [Royal Decree 865/2001 of 20 July approving the Regulation for the Recognition of the Status of Stateless Persons].

The conditions required to establish statelessness are outlined in Art 3. The Spanish system on statelessness guarantees a high level of protection.