Spain – Administrative Chamber of the Supreme Court, 27 May 2019, Appeal No 5809/2018
Keywords:
| Keywords |
|
Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
|
Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
|
Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
|
Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
Headnote:
The Spanish Supreme Court’s Administrative Chamber decides on the appeal of the State Attorney. He appealed the National Court’s judgement that accepted to consider an application for the re-examination of international protection that was denied in first instance, and was presented in a different place. The Supreme Court concludes that even if an application is not presented before the competent authority, are these authorities the ones who have to refer the case to the competent. Since this referral was not done, the petition for re-examination is valid.
Facts:
The applicant submitted an initial application for international protection in the border checkpoint of Madrid-Barajas airport the 21 January 2017, that was denied by the Internal Affairs’ Ministry three days later. The applicant petitioned before a Police Station for the re-examination of her initial application. The Police Station was not the authority competent to consider this re-examination petition; it had to be sent to the competent body. However, this application for re-examination was not resolved, because it was not remitted to that competent body.
The applicant presented an appeal against the denial of her application before the National Court, because her re-examination application was not solved.
On 5 April 2018, the National Court granted the appeal, and therefore annulled the decision not to accept the claim for international protection. With this judgement, the applicant’s application was accepted, and her entrance and temporary stay in Spain was authorised. The National Court’s reasoning is that the referral of the applicant’s re-examination petition to the competent authority was not done on due time, which was 6 days (art. 6 Directive 2013/32/EU).
The State attorney appealed the National Court’s judgment before the Supreme Court asking for its annulment and posing some questions regarding the presentation of the applicant’s re-examination application. Legal questions were raised on when the period to register the application starts counting and where the presentation of the application should be done.
Decision & reasoning:
The applicant submitted an initial application for international protection in the border checkpoint of Madrid-Barajas airport the 21 January 2017, that was denied by the Internal Affairs’ Ministry three days later. The applicant petitioned before a Police Station for the re-examination of her initial application. The Police Station was not the authority competent to consider this re-examination petition; it had to be sent to the competent body. However, this application for re-examination was not resolved, because it was not remitted to that competent body.
The applicant presented an appeal against the denial of her application before the National Court, because her re-examination application was not solved.
On 5 April 2018, the National Court granted the appeal, and therefore annulled the decision not to accept the claim for international protection. With this judgement, the applicant’s application was accepted, and her entrance and temporary stay in Spain was authorised. The National Court’s reasoning is that the referral of the applicant’s re-examination petition to the competent authority was not done on due time, which was 6 days (art. 6 Directive 2013/32/EU).
The State attorney appealed the National Court’s judgment before the Supreme Court asking for its annulment and posing some questions regarding the presentation of the applicant’s re-examination application. Legal questions were raised on when the period to register the application starts counting and where the presentation of the application should be done.
Outcome:
Appeal not granted.
Subsequent proceedings:
The applicant’s re-examination petition is admitted into consideration.
Observations/comments:
The Supreme Court ruled that the place for the presentation of the application can be any register or public office of the Internal Affairs’ Ministry. With it, it overturned the narrow interpretation that the Administration was following on Spanish and EU law.
The Administration tried to attribute the non-response of the re-examination application on the applicant’s behaviour, stating that she presented the re-examination application incorrectly (in a different place where she did the application for international protection). However, the Supreme Court confirmed that Member States shall ensure that the registration of application is made in due time, even if the presentation was done to authorities that were not competent.
This ruling potentially facilitates access to the procedure for applicants of international protection.
This summary was written by Laura Pastor Rodriguez, LLM Student at Gent University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| of 30 October |
| regulating the right of asylum and the subsidiary protection |
| Arts. 21 and 29 - Ley 12/2009 |
Cited Cases:
| Cited Cases |
| CJEU - C-601/15 PPU, 15 February 2016 |
Other sources:
Domestic Case Law Cited
STS 5 December 2007
STS 30 June 2006
STS 6 November 2006