Even if not explicitly referred to in domestic laws, such as the Civil Code, those previsions on subsidiary protection should be interpreted in light of international law. Therefore, even if the literal interpretation of article 22.3 of the Civil Code only refers to asylum, the consideration of the social context and international law would call for an extension of this provision on reduced residency requirements to also cover those holding subsidiary protection status.
The applicant, from Iraq, was denied Spanish nationality on 30th August 2017 due to a consideration that subsidiary protection follows the standard requirement of ten years of residency in order to grant nationality.
He first asked for asylum on 30th October 2007, which was denied on 7th July 2008 granting him an authorization to reside in Spain for humanitarian reasons. On 29th January 2010 he claimed subsidiary protection, which he was granted on 6th October 2010.
He filed his application for Spanish nationality 30th June 2014, considering that he should be required to have a five-year residency on account of his right to subsidiary protection in the same terms as refugeehood, and in opposition to the general requirement of ten years of residency.
The contested decision was made on the basis that the condition of subsidiary protection falls under article 22.1 of the Spanish Civil Code, therefore requiring ten years of residency to grant Spanish Nationality. Article 22.3 considers the reduced requisite of five years only for those granted refugee status.
The reduced requisite for refugees was first introduced in Spain by the Law 18/1990 that reformed the Spanish Civil Code in nationality matters. Articles 34.3 of the Organic Law 4/2000, as well as Civil Code and Constitution, refer to refugeehood and asylum. The term “subsidiary protection” was designed by the European Union in response to the social reality, and was first introduced in domestic legislation by the Law 12/2009, establishing a distinction between refugeehood and subsidiary protection and pairing both notions in situations as the authorizations of residency and work contained by the Organic Law 4/2000.
Even if noy explicitly referred to in domestic laws, such as the Civil Code, those previsions on subsidiary protection should be interpreted in light of international law. Therefore, even if the literal interpretation of article 22.3 of the Civil Code only refers to asylum, applying the social context and international law would call for an extension of this provision on reduced residency requirements to also cover those holding subsidiary protection status.
Appeal partially granted. In order to obtain Spanish Nationality, those holding subsidiary protection status would be required five years of residency, declaring annulling the contested decision. However, this particular case calls for an analysis of the legal subjective criteria of the individual to grant him nationality.
When analysing an individual case to acquire nationality, both subjective and objective criteria have to be analysed by the Court. In this case, the main question treated by the Court referred to the objective criteria, particularly the one on whether those holding subsidiary protection would have the same requirements as refugees.
However, the contested decision did not provide the facultative Report of the Civil Registrar, necessary for the Court to decide if he would be granted nationality. There was only a note analysing the subjective criteria for the application, where it is stated that the applicant had a poor knowledge of the Spanish language and lack of adaptation of the style of living of the community. As this does not comply with the necessary procedural elements for the Court to be able to assess this particular case, the integration test should be practised again.
Judgment of the National Court n. 2022/2017 (Contentious Chamber, Section 1), of May 9, 2017 (appeal 1227/2015) – (Sentencia de la Audiencia Nacional n. 2022/2017 (Sala de lo Contencioso, Sección 1ª), de 9 de mayo de 2017 (recurso 1227/2015)).
Judgment of the National Court n. 689/2018 (Contentious Chamber, Section 3), of March 1, 2018 (appeal 697/2016) – (Sentencia de la Audiencia Nacional n. 689/2018 (Sala de lo Contencioso, Sección 3ª), de 1 de marzo de 2018 (recurso 697/2016)).
Judgment of the National Court n. 1762/2016 (Contentious Chamber, Section 3), of May 12, 2016 (appeal 2237/2014) – (Sentencia de la Audiencia Nacional n. 1762/2016 (Sala de lo Contencioso, Sección 3ª), de 12 de mayo de 2016 (recurso 2237/2014)).
Judgment of the National Court n. 2933/2018 (Contentious Chamber, Section 8), of June 25, 2018 (appeal 25/2017) – (Sentencia de la Audiencia Nacional n. 2933/2018 (Sala de lo Contencioso, Sección 8ª), de 25 de junio de 2018 (recurso 25/2017)).
Judgment of the National Court n. 4291/2018 (Contentious Chamber, Section 5), of October 31, 2018 (appeal 60/2017) – (Sentencia de la Audiencia Nacional n. 4291/2018 (Sala de lo Contencioso, Sección 5ª), de 31 de octubre de 2018 (recurso 60/2017)).
Judgment of the National Court n. 3593/2018 (Contentious Chamber, Section 7), of September 26, 2018 (appeal 33/2017) – (Sentencia de la Audiencia Nacional n. 3593/2018 (Sala de lo Contencioso, Sección 7ª), de 26 de septiembre de 2018 (recurso 33/2017).
CJEU - Case C-272/08, Commission v Spain, 9 July 2009.