Spain - Superior Court of Justice, Appeal N° 1470/2016, 29 September 2017

Country of Decision:
Country of Applicant:
Date of Decision:
29-09-2017
Citation:
1470/2016
Court Name:
Superior Court of Justice: Chamber of Contentious-Administrative Proceedings – First Section
National / Other Legislative Provisions:
Spain - - Contentious Administrative Law Article 89.2
36
19 and 34 (Ley Reguladora de la Jurisdicción Contenciosa Administrativa)
Spain - - Judiciary Organic Law
fifteenth additional provision (Quinceava Disposición Adicional de la Ley Organica del Poder Judicial)
Spain - Article 5
25.3 of the Organic Law 4/2000 (Ley Orgánica)
Spain - Article 13.2 of Royal Decree 203/1995 (Decreto Real)
Spain - Articles 4
16.12
17
18
19 and 36 of the Law 12/2009
Spain - Article 3
18 and 19 of the Asylum Law 12/2009 (Ley de Asilo)
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Headnote: 

An asylum seeker was prohibited to travel from Ceuta (Spanish autonomous territory) to the Spanish peninsula despite the fact his application for international protection was being examined.

Facts: 

The applicant, a Moroccan National, requested international protection in Ceuta on 4 April 2016.

On 20 May 2016, the applicant requested authorisation to move from Ceuta to the Spanish Peninsula, arguing that since he has applied for international protection, there should not be a restriction to his freedom of movement to the peninsula.

In this request the applicant argued that after his asylum application was received, he obtained, according to Spanish legislation, the possibility of staying in the Spanish territory whilst his  application was being reviewed.

Such a request was made to the Immigration and Borders Authority and was rejected on 9 June 2016. In its decision, the authority argued that the applicant was not allowed to move from Ceuta to the Spanish peninsula due to the fact the applicant did not comply with any of the requirements to be admitted to the peninsula according to Article 5 of the regulation (EC) N° 562/2006 of the European Parliament and the Council.

The applicant appealed the decision of the authority before the General Police Direction, which is the hierarchical superior entity. However, according to official records the appeal was denied by resolution dated 7 September 2016.

Therefore, the applicant appealed the denial of his application, requesting the annulment of the resolution issued on 9 June 2016 and the authorisation to move from Ceuta to the Spanish peninsula.

While the appeal was being reviewed by the Madrid’s Superior Court of Justice, the applicant started another process before Ceuta’s N° 2 Contentious-Administrative Court, arguing that his fundamental rights were being violated due to the impediment of movement from Ceuta to the Spanish peninsula.

After reviewing the information provided by the applicant, Ceuta’s court recognised the right of the applicant of free transit and residence within all Spanish territory while his application for international protection is being reviewed.    

 

Decision & Reasoning: 

The court reiterated the applicant’s arguments as even the Spanish Constitutional Tribunal recognises the right of free movement and free residence within the territory of Spain to all third country nationals whose application is being reviewed or who had been granted with international protection. Such provision includes the autonomous cities of Ceuta and Melilla.

Moreover, the Court recognises that even the Supreme Justice Tribunal has pronounced in previous cases that third country nationals who are entitled to live in Spain have the right to choose their residence and to move freely through the territory of the state without restriction.

Such decisions are supported also by the Schengen Agreement regarding Ceuta and Melilla. Considering both cities are Spanish territories, they are part of the Schengen territory and Spain could not impose additional requirements to the people traveling between them and the peninsula.

Regarding the Spanish regulation, the Court highlighted that Spanish Asylum Law established that the request for asylum grants the applicant subsidiary protection. Such subsidiary protection grants to the applicant protection against return, freedom of movement within the state among others.

In spite of this, the Court pointed out that the General Police Direction, due to a misinterpretation of the Regulation (EC) N° 562/2006 of the European Parliament and of the Council, interpreted that the applicant was not entitled to move to the Spanish peninsula as he does not have any of the documents mentioned in its article 5 of the Regulation.

In this case, the Court argued that Regulation 562/2006 is not applicable to the present case as the applicant has been provided documentation as an asylum seeker therefore he is in a regular immigration status and his rights are the ones that are recognised in the Spanish Asylum Regulation.

 

Outcome: 

The Court granted the appeal to the applicant and nullified the rulings dated 9 June 2016 and 7 September 2016. The Court, thus granted the applicant the possibility of free movement within Spanish territory.

 

Observations/Comments: 

It is important to note that according to Spanish law, the initial process and the first appeal are reviewed by administrative authorities. Regarding the “second appeal”, it is called contentious-administrative appeal and must be reviewed by a judicial court.

This case follows other cases from the Spainsh courts, namely:

Spain - High Court of Justice of Andalucía. Nº 3567/2015,13 February 2015 (Appeal Ref. 138/2014) where the Court held that the Spanish administration was not entitled to refuse the applicant’s transfer to the Spanish peninsula from Cueta. The Court noted that the Spanish government is bound by the Geneva Convention and the Schengen Borders Code which provides an exception to the travel documents and visa requirements in Article 6(1) where humanitarian grounds, on grounds of national interest or because of international obligations dictate. See also:   High Court of Andalucía, Decisions of 25 October 2010; 28 October 2010; 21 December 2010; 27 December 2010; 13 January 2011; 24 February 2011; 23 February 2012; 6 March 2012; 11 April 2012; 11 July 2014; 13 February 2015; Administrative Court of Ceuta, Decision 278/2017, 25 May 2017. 

On the 11 July 2018 the High Court of Justice of Madrid granted precautionary measures for three asylum seekers in Ceuta to be transferred to the peninsular territory during the process.

On 30 October 2018, the Superior Court of Madrid, Contentious- Administrative Chamber, nº 817/2018 noted that according to the Spanish Constitution, asylum seekers in Melilla will be entitled to the right to freedom of movement to the Spanish peninsula provided that they have the required documentation and that their asylum application had been admitted by the Spanish Asylum Authorities. 

This case summary was written by Oscar Pajuelo, LLM student at Queen Mary University.

 

Other sources cited: 

Regulation (EC) N° 562/2006 of the European Parliament and of the Council  - Article 5, 13.1 and 10.2