Spain - High National Court, 8 July 2011, 302/2010

Country of Decision:
Country of Applicant:
Date of Decision:
08-07-2011
Citation:
302/2010
Court Name:
High National Court
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Headnote: 

The applicant claimed asylum in November 2009 alleging a well founded fear of persecution for reasons of race and religion. The application was refused by the Ministry of Interior on the grounds that the application did not amount to persecution in accordance with the 1951 Refugee Convention. On appeal, the High National Court re-examined the application and held that the conflict which had arisen in the Ivory Coast had to be taken into account and on that basis subsidiary protection should be granted.

Facts: 

On the 5th November 2009, the applicant claimed asylum alleging the following facts: his grandparents were nationals of Mali and he had always been considered a foreigner in the Ivory Coast. Moreover, he belonged to the dioula ethnic group. In September 2002, the conflict in Ivory Coast broke out and governmental and civil entities began to detain and execute foreigners and members of the dioula ethnic group; his family was threatened and urged to leave the region of Danane. On the 22nd September the house was burnt down by the military and his father disappeared. The applicant thinks he was executed. In October 2002 he fled to Mali, then to Senegal and Mauritania, facing real hardship. In July 2009 he entered Spain.

The Ministry of Interior refused the application declaring that the acts alleged did not amount to persecution, the facts alleged were inconsistent, membership of the dioula ethnic group had not been sufficiently proven, some months had elapsed since he entered Spain before he submitted the application and he could have availed of protection in a safe third country.

Decision & Reasoning: 

The High National Court held that the appeal against the refusal to grant refugee status could not succeed since the allegations made by the applicant could not be considered as individualised persecution under the 1951 Refugee Convention.

Nevertheless, when assessing if the applicant qualified for subsidiary protection, the Court relied on a report issued by UNHCR (UNHCR Position on Returns to Côte d'Ivoire 20th January 2011) stating that serious human rights violations were taking place due to the conflict in Ivory Coast. These violations had been inflicted by both Gbagbo’s government and Ouattara’s political opposition. Also, the recommendation by UNHCR in the above report to cease forced returns to Ivory Coast had to be taken into account.

The Court held that there was a real risk to the applicant if returned to his country of origin. Therefore, subsidiary protection could be granted since the applicant faced a real risk of suffering serious harm (Art.4, Law 12/2009), particularly, on the grounds of “serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of internal armed conflict”.

Outcome: 

The appeal was partially successful: refugee status was refused and subsidiary protection was granted.

Observations/Comments: 

This decision was the first time (because of the armed conflict in Ivory Coast) that subsidiary protection under the new Spanish Asylum Law 12/2009 was applied. Prior to this case the provision on ‘human considerations’ was applied in a broader and more uncertain manner, and was different from what is defined the Qualification Directive.