Spain: National Court. Chamber of Contentious-Administrative Proceedings, 15 December 2017, Appeal No. 656/2016
Keywords:
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
The applicants appealed the decision to deny family reunification and family extension in relation to the refugee status of their daughter. The Administration denied this claim based on the fact that the applicants have a different nationality than their daughter, which would contravene the requirement established in article 40.a) of Law 12/2009. Article 41 of said Act, however, addresses this specific situation; However, the requirement of developing this provision by regulation had not been complied by Spain. The Court assesses whether this article should be applicable in the current case, despite not presenting the requirement of regulation, and concludes that the similarity of the wording of articles 40 and 41 is enough as to deem the latter applicable.
Facts:
The applicant, from Palestine, acts in representation of her Syrian parents. She was granted refugee status and is now submitting an application for family reunification and extension of her status to her parents The situation in Syria, as recognised by UNHCR, calls for a flexible interpretation regarding the criteria to assess family reunification in order to provide secure access to protection to those fleeing the conflict.
Both applicants reside in Syria. Their daughter presented proof of joint residency back in 2013, as well as health issues of both parents and continuous money transfers that she made to help them financially. They claim family reunification and family extension regarding the asylum granted to her daughter and the health dependency of both parents.
The Administration argued that the dependency of the applicants is not formally accredited as required by article 40.a) of the Asylum Law 12/2009. In addition to that, it highlights the fact that both applicants have Syrian nationality, while her daughter is Palestinian, which according to the already mentioned article 40.a) would preclude family reunification. The provision that would be applicable to the circumstances of this case, where the applicant and her parents hold different nationality, lies within article 41 of the Law 12/2009. However, this article specifically establishes the need to develop this provision by means of regulation, which Spain should have had complied with by June 2010. As this regulation is not yet made, the Administration concludes that the provision of article 41 cannot be applicable in this case and, therefore, rejects the petition on family reunification in light of article 40.a) of the Law 12/2009.
Decision & reasoning:
The Court, by means of the report that UNHCR made on the circumstances of the case, contains that the wording of article 41 of the Law 12/2009 barely differs from the one used in article 40. Therefore, the lack of regulation regarding article 41 would not be a sufficient reason to disregard its provisions, as it is intrinsically linked to article 40. This provision, as stated by the Court, should be interpreted in light of the Directive 2003/86/CE about family reunification, regarding the difficult conditions suffered by Syrian refugees, and therefore the appellants should be granted family reunification rights.
Outcome:
Appeal granted.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
- UNHCR Report, 20th March 2016.