Spain - Supreme Court, 23 May 2012, Nº 3847/2012

Country of Decision:
Country of Applicant:
Date of Decision:
23-05-2012
Citation:
3847/2012
Court Name:
Supreme Court, Chamber for Contentious Administrative Proceedings, Madrid, Section 3, Rapporteur: María Isabel Perelló Doménech) Appeal No: 4699/2011
National / Other Legislative Provisions:
Spain - Ley 5/1984
Spain - reguladora del derecho de asilo y de la condición de refugiado (Act regulating the right to asylum and refugee status) - Art 17(2)
Spain - Royal Decree 203/1995 - Art 31(4)
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Headnote: 

Two appeals have been made - by the asylum seeker and the State representative – to the Supreme Court against the judgment given by the High National Court which partially upheld the appeal filed against the Ministry of the Interior’s decision to deny international protection to an Ivorian national.   The High National Court’s decision, while denying refugee status, granted the applicant permission to reside in Spain under Article 17(2) of the Asylum Law (humanitarian considerations).The asylum seeker requests that his refugee status be recognised.The Public Prosecutor requests that the permit to reside in Spain on grounds of humanitarian considerations be retracted.The Supreme Court decided to maintain the applicant’s residence permit on grounds of humanitarian considerations on the basis of the updated country of origin information and the consequent risk to the person’s life or physical integrity.

Facts: 

The applicant, an Ivorian national, requested asylum in Spain on 12th July 2007. In his application he claimed to have fled the country because of the war.He affirmed that he was of Djoulla ethnicity and had been born and lived in Danané.Both the rebel group - Force Nouvelle – and the government forces – los Loiliss­ – attacked his city and his father was killed.He had to flee his home, losing track of his mother and brother.He took refuge in the house of a friend until three others of his friends were killed and he then decided to leave the country, even though he was a minor.  He arrived in Spain on 3rd July 2006, having travelled through and stayed in Guinea, Mali, Algeria and Morocco.

The applicant claimed that his life was at risk both at the hands of the rebels as well as the government forces because, as he originates from the North of the country, the government will view him as a rebel.

Decision & Reasoning: 

In regards to the appeal brought by the asylum seeker, the Supreme Court has decided that this cannot proceed further because the whole narrative which supports the application is based on his status as a resident of Danané.The Chamber considers that previous proceedings have provided sufficient proof that this information is dubious, inasmuch as he actually originates from Abidjan, a place where -in accord with the UNHCR report of July 2007 – there is no risk of his suffering persecution on the grounds of his ethnic origin.

In regards to the appeal brought by the Public Prosecutor, the Supreme Court rejects the petition and upholds the High National Court’s judgment.The Public Prosecutor claims that the residence permit on grounds of humanitarian considerations should correspond to a situation of “serious political, ethnic or religious conflict or disturbance” (Article17(2) of Asylum Law 5/1984) and that the socio-political situation has stabilized and therefore, in the event of his return, the appellant does not run any risk of persecution.

The Supreme Court states that there are two different protection schemes, namely, refugee status or the status conferred by subsidiary protection (previously, in Spain:residence permit on the grounds of humanitarian considerations).The persecution that must be proven to grant a residence permit on grounds of humanitarian considerations (it must be remembered that previously the concept of subsidiary protection did not exist in Spain) does not have to be on an individual basis, a contrario sensu, when dealing with refugee status.Therefore, this demonstrates that the evaluation criteria for a residence permit do not require individual persecution as in the case of refugee status.Additionally, in cases of permits granted on grounds of humanitarian considerations, the updated country of origin information takes on greater importance.By virtue of the aforementioned, it can be surmised that when the application for asylum was submitted, the circumstances of the conflict had normalised as affirmed in the 2007 UNHCR report. However, during the later process of challenging the legal and administrative decisions - in 2011 - the situation in the country had deteriorated considerably.The Supreme Court raises the issue of the need to take into account updated country of origin information.Information that pertains to the moment of the asylum application should not be taken as a decisive reference but rather information pertaining to the current time at which the judicial decision is made.In the light of European legislation and case law, the Supreme Court further adds that unexpected circumstances should be taken into consideration in order to continue international protection even when the circumstances that caused the protection to be granted originally have ceased.

Outcome: 

Both appeals are rejected by the Supreme Court which affirms the High National Court’s decision to deny refugee status and to extend the residence permit on grounds of humanitarian considerations.

Observations/Comments: 

In this case the Supreme Court reminds the Public Prosecutor of two important issues:

The evaluation criteria for two very different matters – a residence permit on grounds of humanitarian considerations and refugee status –  should not be compared on equal grounds.In particular, for the first of these, the alleged persecution does not have to be on an individual basis.It should be borne in mind that the legislation of reference is Asylum Law 5/1984 (modified in 1994) where the issue of subsidiary protection does not yet appear.However, as the Qualification Directive is in force, these assumptions should apply in connection with the concept of residence on grounds of humanitarian considerations (Article17(2)). This could be viewed as an imperfect transposition of the concept of subsidiary protection.

Secondly, the Court requires accuracy in regards to the type of country of origin information that should be taken into account when evaluating an application:It should be up-to-date information from the actual time of the ruling of the last judgment, allowing the possibility for protection to be granted due to unexpected circumstances.

Other sources cited: 

UNHCR reports on the situation in the Côte d'Ivoire from July 2007 and 10th February 2011.

Case Law Cited: 

Spain - Supreme Court, Judgment of 19 October 2011

Spain - Supreme Court, Judgment of 8 July 2011

Spain - Supreme Court, Judgment of 17 September 2003

Spain - Supreme Court, Judgment of 19 June 2003

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

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