Spain: The Spanish National Court. Chamber for Contentious-Administrative Proceedings, 11th October 2016, JP, Appeal No. 30/2016

Country of Decision:
Country of Applicant:
Date of Decision:
11-10-2016
Court Name:
Audiencia Nacional. Sala de lo Contencioso
National / Other Legislative Provisions:
Spain - Article 20.1a) of Act 12/09
dated 30th October on the Right to Asylum and Subsidiary Protection
Spain - Regulation of the Organic Act 4/2000
Spain - Article 126 of the RD 557/2011
Spain - Article 46.3 of Act 12/1999
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Headnote: 

The applicant appeals the ruling of the Directorate-General for Domestic Policy, made on 16th February 2015, which denies leave to proceed (inadmissible) for international protection, claiming that another Member state (Poland) and not Spain is responsible for the examination of the asylum application as, on 3rd February 2015, Poland granted the applicant a visa.

The Member State before which the request for international protection is presented has the power to authorise temporary residence for the applicant, at their discretion, if the applicant is suffering from a serious illness which requires medical attention. In this case, the applicant is suffering from an illness but, according to the National Court, it is not a serious illness which requires specialised medical assistance. 

Facts: 

On 1st July 2014, the applicant who is from Ukraine obtains a short-term visa for Poland, making Poland the Member State responsible for the examination of his request for international protection.

He then requests temporary residence in Spain on humanitarian grounds. Temporary residence can be granted to foreigners who are suffering from a sudden, serious illness, which requires specialised medical assistance, not available in their country of origin.

On 19th February 2015, a medical report is released in which the illness suffered by the applicant is described. The Chamber concludes that “this is not a serious illness requiring specialised medical care, the applicant simply requires regular check-ups and there is no evidence to suggest that these cannot be carried out in Poland.” 

Decision & Reasoning: 

The trial ruling states that “the decision contested by the applicant denies his request for the right to asylum in Spain on the basis of Article 20.1a) of Act 12/09, dated 30th October on the Right to Asylum and Subsidiary Protection, which establishes that “1. The Spanish Ministry of Interior, at the recommendation of the Asylum and Refuge Office, may, by coming to a reasoned decision, deny leave to proceed when any of the following circumstances applies: 1 When the Member State lacks jurisdiction to examine the application: a) when Spain is not responsible for the examination of the application.

The EC Regulation no. 604/13 of the European Council and Parliament, dated 26th June 2013 establishes the criteria and mechanisms for determining which Member State will be responsible for the examination of any given application for international protection in a Member State, submitted by a citizen from a third country or a stateless person. Article 12.2 provides that: “2. If the applicant has a valid visa, the Member State that issued the visa will be responsible for the examination of the application for international protection.

The Regulation of the Organic Act 4/2000, approved by Article 126 of the RD 557/2011, dated 20th April on the rights and liberties of foreigners in Spain and their social integration, reformed by the Organic Act 2/2009 affirms that “Authorisation on humanitarian grounds can be granted in the following circumstances: 2. Foreigners suffering a sudden, serious illness, requiring specialised medical attention which would not be available in their home country and where interrupting or stopping their treatment places their life and/or their health at great risk. In order to assess their condition, a medical report issued by the corresponding health authority is required.”

The allegations of this appeal, as we have seen, predominantly revolve around the application of Article 17.1 of the EU Regulation 604/2013 and Article 46.3 of Act 12/1999, when considering whether the humanitarian grounds cited by the applicant apply. 

Outcome: 

Appeal denied. 

Observations/Comments: 

This case summary was written by Harry Fathers, GDL student at BPP University.