Spain - Supreme Court, 24 February 2010, 429/2007

Country of Decision:
Country of Applicant:
Date of Decision:
Nº 429/2007
Court Name:
The Supreme Court
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The case concerned an appeal before the Supreme Court lodged by the Attorney General against the decision of the High National Court to grant refugee status. Status was granted to a Moroccan army deserter on the basis of a well founded fear of persecution on the grounds of political opinion. At issue on appeal was whether refugee status was granted based upon a fear of persecution resulting from the army desertion (which took place in Morocco), or due to the imputed political opinions that had arisen since his desertion (which arose in Spain): i.e. whether the applicant was a refugee sur place.

The applicant worked as an officer for the Moroccan army. A disagreement took place with his superiors when he expressed his political opinion about the self-determination of the Western Sahara and the political situation in Ceuta and Melilla. As a consequence of this dispute, the applicant decided to desert the army.

After claiming asylum in Spain, he appeared in the national and international media representing and promoting the Free Army Officers Moroccan Movement and expressed his discontent with the Moroccan army structure and conditions. He also worked as a spy for the Spanish intelligence services after claiming asylum.

He claimed asylum based on a well founded fear of persecution because of his political opinions.
Decision & Reasoning: 

The High National Court granted refugee status. However, the Attorney General challenged this decision by lodging an appeal before the Supreme Court. The Attorney General argued that the applicant voluntarily maintained a dispute (an “irregular” conflict) with the Moroccan army after becoming a deserter, and the facts did not establish a case requiring protection under asylum law. In addition, the Attorney General argued that that there was no evidence of past persecution; a risk of persecution only arose after his desertion from the Moroccan army.

However, the Supreme Court found that the Attorney General only considered events that occurred in Morocco and failed to consider whether a well-founded fear arose ‘sur place’, i.e. after the applicant arrived in Spain.

The Court held that the applicant’s fear was not founded on his activity as an army officer in his country of origin but on how the Moroccan authorities have since manipulated his image in the media in order to defend national interests. The Court stated that the Moroccan authorities used the applicant’s case to demonstrate the current damaged political relations between Spain and Morocco.

The Supreme Court held that there was evidence of a well-founded fear of persecution based on imputed political opinion. If these opinions are imputed, the existence of an actual political activity was not required. What has to be taken into consideration when opinions are imputed is the perception of the persecutor regarding the persecuted and the activities that the persecutor defines and considers as “political activities”.

It was determined that the applicant was a refugee “sur place” because if he returns to Morocco, there is a reasonable likelihood of him being persecuted in his country of origin (Morocco) for activities carried out in the reception country (Spain).


The State’s appeal was rejected and the granting of refugee status to the applicant was upheld.