Spain - National Court. Chamber of Contentious-Administrative Proceedings n. 478/2022, 24 February 2022, Appeal n. 769/2020

Facts:

A Ukrainian family, the Applicants, applied for international protection in 2018, in Spain.

The Under Secretary of Internal Affairs rejected the claims in 2020. Regarding refugee status, although Ukraine was going through a war in 2018, there wasn’t any evidence establishing that, if the father of the family refused to join the army, the Applicants would face a risk of being persecuted based on their race, religion, nationality, political opinion or membership of a particular social group. The claim for subsidiary protection was also rejected, considering that, since the Applicants didn’t live in any of the regions where the conflict was taking place, they wouldn’t be exposed to a serious harm against their life or integrity in Ukraine.

The Applicants introduced an appeal against the administrative decision before the Chamber of Contentious-Administrative Proceedings of the National Court.

Decision & reasoning:

 The National Court refers to its previous jurisprudence, which establishes that the risk of being recruited by the Ukrainian army doesn’t meet the requirements to qualify as a refugee, namely the grounds for persecution (Article 7 “Asylum Act”) and the acts of persecution (Article 6.2.e “Asylum Act”). The Court also refers to the UNHCR Guideline no.10, confirming that a right of States to recruit citizens with a military purpose derives from States’ right to self-defence.  States are also entitled to impose sanctions to objectors, provided that they respect international law. Furthermore, the Court alludes to its previous case law, considering that the mere condition of conscientious objector isn’t a cause to grant refugee status. In conclusion, the Court confirms the decision of the Under Secretary of Internal Affairs to refuse refugee status to the Applicants. 

The Court then turns to the analysis of subsidiary protection. It reiterates that this status is granted to individuals who don’t meet the requirements to qualify as a refugee, but in respect of whom there are substantial grounds to believe that, if returned, they would face a real risk of suffering a serious harm (Article 10 “Asylum Act”). In this instance, the serious harm invoked is a serious threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (Article 10c) “Asylum Act”). The Court refers to the Supreme Court’s case law concerning appeals against an administrative asylum decision, which provides that account must be taken of the evolution of the circumstances in the country of origin, from the moment of the application for international protection, until the moment when the Court has to rule. Moreover, the Court of Justice has established the importance of analysing, when deciding to grant international protection, whether the Applicant will be protected from the fear of persecution in the country of origin. In this sense, internal relocation is a possibility of domestic protection, however an analysis must be made of the security, accessibility and reasonableness of the option (Article 8 Directive 2011/95 and UNHCR Guideline no.4).

The Court then applies these principles to the present case. The Court argues that the circumstances have changed in Ukraine since the request for international protection was introduced. It is well-known that Ukraine, at the moment when the Court is ruling in 2022, is going through an international conflict exposing the Applicants to a risk of serious threats to their life or person, pursuant to Article 10c) of the “Asylum Act”. The Court determines that internal relocation within Ukraine is not a reasonable and safe option because of the instability and volatility of the situation. In conclusion, since Ukraine can’t currently offer protection to the Applicants in any area of the country, they shall be granted subsidiary protection status

Outcome:

Appeal partially granted. Nullity of the decisions of the Under Secretary of Internal Affairs as regards the refusal to grant subsidiary protection status. Recognition of the subsidiary protection status of the Applicants.

Observations/comments:

This is the first ruling concerning international protection for Ukrainian nationals after the conflict with Russia escalated in 2022.

The National Court applies the previous case law establishing that account must be taken of the circumstances in the country of origin at the moment of the ruling. Since the Court considers that the circumstances in Ukraine have changed in 2022, as a result of the actions taken by Russia, the National Court decides that this Ukrainian family was entitled to subsidiary protection.

This solution contrasts with the previous Spanish case law regarding Ukrainian nationals who had been demanding international protection adducing the military recruitment carried out in their country of origin, just like the Applicants in this instance. None of them had been granted international protection.