Spain: Supreme Court. Chamber for Contentious-Administrative Proceedings, 26th July 2016, M, Appeal No. 374/2016

Country of Decision:
Country of Applicant:
Date of Decision:
26-07-2016
Court Name:
Tribunal Supremo. Sala de lo Contencioso
National / Other Legislative Provisions:
Spain - Article 124.3 of the development regulation of Organic Act 200
Spain - Spanish Constitution Article 39(2)
Spain - Article 17.2 of Act 5/1984
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Headnote: 

The applicant appeals against the ruling passed by the Directorate General of Domestic Policy on 14th February 2014, issued at the request of the Ministry, denying his application for international protection and against the ruling passed on 19th February 2014, denying his request for a review of his application, both denied in compliance with the Law. The applicant has requested residence in Spain on humanitarian grounds given that he has a son who is a minor and is of Spanish nationality. He invokes his right to remain at his son’s side to care for him.  

Facts: 

The applicant arrived in Spain in 2003 and did not request asylum or international protection at that time. After a long stay in Spain with a residence and work permit, a final administrative decision was passed by the Government Delegation Office in Valencia on 6th March 2013, ordering him to leave the country.

It was only when he found himself in a detention facility pending his expulsion when he applied for asylum on the basis of alleged persecution in his country of origin. He cited as humanitarian grounds being the father of a Spanish national who resides in Spain, though he did not cite any other circumstances relating to custody, maintenance, the place of residence of the child’s mother etc…

Spanish law authorises foreigners to remain in the country on the basis of family ties when a minor of Spanish nationality depends on and lives with the parent and when the parent is fulfilling their parental obligations to the child and is providing for their child in accordance with the Spanish Civil Code (Article 124.3 of the development regulation of Organic Act 2000 in the version approved by Royal Decree 557/2011) with one of the guiding principles of the Spanish Constitution being to protect the family (Article 39.2).

The trial ruling states that the term ‘humanitarian grounds’ does not refer to all humanitarian considerations, but must be associated with a real risk of danger, caused by serious political, ethnic or religious conflicts or disturbances. The applicant’s personal situation should be directly linked to the situation in the country of origin and they should not cite generic or vague humanitarian grounds. The applicant sustains that this interpretation of granting/denying residence on humanitarian grounds contradicts the jurisprudence of the Supreme Court in the Supreme Court Sentences dated 24th February 2012 (Appeal no. 2476/2011) and 11th March 2014 (Appeal no. 2797/2013).  

Decision & Reasoning: 

The applicant’s legal representative appealed the decision of the Eighth Contentious-Administrative Proceedings Chamber of The Spanish National Court issued on 4th December 2015 (Appeal no. 164/2014), denying the applicant’s appeal against the ruling passed by the Directorate General of Domestic Policy on 14th February 2014, issued at the request of the Ministry, denying his application for international protection and against the ruling passed on 19th February 2014, denying his request for a review of his application.

The Ministry of Interior, at the recommendation of the Interministerial Commission for Asylum and Refuge, may authorise applications for residence in Spain, in accordance with Article 17.2 of Act 5/1984, dated 26th March, on the Right to Asylum and Refugee Status, provided that there are serious, well founded reasons to believe that returning to their country of origin would imply a real risk to the applicant’s life or to their physical wellbeing.

The Spanish jurisprudence has generally maintained a link or relation between the authorisation of residence on humanitarian grounds and the grounds for seeking asylum. However, there are multiple cases in which, despite citing a situation of conflict in the applicant’s country of origin, the most relevant factor when authorising residence in Spain has been a consideration of the personal circumstances of the applicant, which may not necessarily be linked to the grounds for seeking asylum- Supreme Court Sentences dated 4/11/2005 (RC 4752/2002); 18/11/2005 (RC 5194/2002); 22/09/2006 (RC 2956/2003); 16th June 2008 (RC 1579/2005).

The applicant’s only claim of being the father of a minor of Spanish nationality could be viewed as exceptional grounds for residence in Spain but, in this case, corresponds more closely to a last attempt to elude the enforcement of the administrative expulsion order, passed on the grounds of protecting public order, the legality of which was not contested at the time that it was passed.

Outcome: 

Appeal denied.

Observations/Comments: 

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

Case Law Cited: 

Spain - Spanish Appeal Court, Appeal no. 2797/2013

Spain - Supreme Court, 18 November 2005, No. 5194/2002

Spain - Supreme Court, 22 December 2006, No. 2956/03

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

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