Spain - Supreme Court, 10 October 2012, 6761/2012

Country of Decision:
Country of Applicant:
Date of Decision:
18-10-2012
Court Name:
Supreme Court. Chamber for Contentious Administrative Proceedings, third section (Rapporteur: María Isabel Perelló Doménech)
National / Other Legislative Provisions:
Spain - Constitution - Art 9(3)
Spain - Ley 5/1984, de 26 de marzo, reguladora del derecho de asilo y de la condición de refugiado (Act regulating the right to asylum and refugee status)
Spain - Royal Decree 203/1995
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Headnote: 

The case refers to an appeal to the Supreme Court brought by the appellant against the High National Court’s decision to deny asylum.

The appellant is a Syrian national of Kurdish ethnicity and claims to be affiliated to the Kurdish political party “Azadi Akrad Siria” and to carry out political propaganda activities on their behalf.The Court affirms the denial of asylum and furthermore excludes the appellant from having the status of refugee sur place, even though the situation in Syria has changed since the application for asylum was lodged.However, taking into account the severe deterioration of the socio-political situation in Syria, the Supreme Court recognises the appellant’s right to remain in Spain on humanitarian grounds.

Facts: 

The appellant is a Syrian national of Kurdish ethnicity.In the application the appellant claims that the Kurdish people in Syria suffer discrimination and persecution, particularly those who, like him, are active from a political point of view.Indeed, the appellant claims to be affiliated to the Kurdish political party called “Azadi Akrad Siria” and that he was involved in the clandestine distribution of press materials and other publications amongst the Kurdish people.The appellant adds that it was a very dangerous activity in view of the surveillance carried out by the Syrian secret services in relation to forms of propaganda considered to be subversive by the Syrian government.When one of the party members was arrested and tortured by the Syrian secret services, the party itself recommended that the applicant and other party members leave the country as they were targets for the Syrian security forces.

Decision & Reasoning: 

The Supreme Court affirms the denial of asylum having considered that the appellant's account of persecution is ambiguous and vague in explaining his involvement with the “Azadi Akrad Siria” party as well as the circumstances behind his escape.Above all, the Supreme Court emphasises the appellant's inability, throughout the whole asylum process, to substantiate his involvement and participation in the activities of the aforementioned political party.Effectively, as stated in the decision, the appellant has never supplied details of the party’s organisation, activities or procedures in order to substantiate his active participation therein.This lead the decision-making body to affirm the denial of the asylum application.    

Given the existence of a severe armed conflict in Syria, the Supreme Court feels it is vital to evaluate the asylum application in the light of these unforeseen circumstances and therefore to evaluate whether the appellant may be considered a refugee sur place.Pursuant to the definition and interpretation of this legal category, the Court excludes the appellant from this status due to the nonexistence of any supervening political acts or declarations against the Syrian regime from the appellant since having fled Syria and residing in Spain.Therefore, the Supreme Court excludes the appellant from having the status of refugee sur place, even though the situation in Syria has changed since the application for asylum was lodged.

However, taking into account the severe deterioration of the socio-political situation in Syria, the Supreme Court recognises the appellant’s right to remain in Spain on humanitarian grounds.Effectively, due to the notoriety of the delicate situation prevailing in the appellant’s country of origin and also the UNHCR’s recommendation to not return refugees to Syria, the Supreme Court notes the possibility of a real risk to life or physical integrity that may be suffered by the appellant in the event of returning to his country of origin.   

Outcome: 

The court upholds the appeal brought by the appellant against the decision by the High National Court.The appeal against the Ministry of the Interior’s decision to deny refugee status is partially upheld.The appellant’s right to remain in Spain on humanitarian grounds is recognised.

Observations/Comments: 

The subject of this appeal is the judgement by the High National Court (section 8) on 30th November 2011, which had rejected administrative appeal number 1717/2009 brought by the appellant against the Ministry of the Interior’s decision of 30th June 2009 to refuse to grant refugee status.

We must emphasise that as of the date of the presentation of the appeal a correct transposition of the concept of subsidiary protection did not yet exist in Spain.

Other sources cited: 

UNHCR “Considerations of international protection in regards to people fleeing from the Syrian Arab Republic”, June 2012; UNHCR, "The position of the UNHCR on  returns to the Syrian Arab Republic", February 2012

Case Law Cited: 

Spain - Supreme Court, 30.03.2006, No. 644/2003

Spain - Supreme Court, 4.11.2005, No. 4752/2002

Spain - Supreme Court, 24 February 2012, No. 2476/2011

Spain - Supreme Court, 10 October 2011, No. 4900/2009

Spain - Supreme Court, 23 May 2012, No. 4699/2011

Spain - Supreme Court, 22 June 2012, No. 6085/2011