Spain - Supreme Court, 24 February 2010, 429/2007
Keywords:
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
The case concerned an appeal before the Supreme Court lodged by the Attorney General against the decision of the High National Court to grant refugee status. Status was granted to a Moroccan army deserter on the basis of a well founded fear of persecution on the grounds of political opinion. At issue on appeal was whether refugee status was granted based upon a fear of persecution resulting from the army desertion (which took place in Morocco), or due to the imputed political opinions that had arisen since his desertion (which arose in Spain): i.e. whether the applicant was a refugee sur place.
Facts:
After claiming asylum in Spain, he appeared in the national and international media representing and promoting the Free Army Officers Moroccan Movement and expressed his discontent with the Moroccan army structure and conditions. He also worked as a spy for the Spanish intelligence services after claiming asylum.
He claimed asylum based on a well founded fear of persecution because of his political opinions.
Decision & reasoning:
The High National Court granted refugee status. However, the Attorney General challenged this decision by lodging an appeal before the Supreme Court. The Attorney General argued that the applicant voluntarily maintained a dispute (an “irregular” conflict) with the Moroccan army after becoming a deserter, and the facts did not establish a case requiring protection under asylum law. In addition, the Attorney General argued that that there was no evidence of past persecution; a risk of persecution only arose after his desertion from the Moroccan army.
However, the Supreme Court found that the Attorney General only considered events that occurred in Morocco and failed to consider whether a well-founded fear arose ‘sur place’, i.e. after the applicant arrived in Spain.
The Court held that the applicant’s fear was not founded on his activity as an army officer in his country of origin but on how the Moroccan authorities have since manipulated his image in the media in order to defend national interests. The Court stated that the Moroccan authorities used the applicant’s case to demonstrate the current damaged political relations between Spain and Morocco.
The Supreme Court held that there was evidence of a well-founded fear of persecution based on imputed political opinion. If these opinions are imputed, the existence of an actual political activity was not required. What has to be taken into consideration when opinions are imputed is the perception of the persecutor regarding the persecuted and the activities that the persecutor defines and considers as “political activities”.
It was determined that the applicant was a refugee “sur place” because if he returns to Morocco, there is a reasonable likelihood of him being persecuted in his country of origin (Morocco) for activities carried out in the reception country (Spain).
Outcome:
The State’s appeal was rejected and the granting of refugee status to the applicant was upheld.
Relevant International and European Legislation:
Follower Cases:
| Follower Cases |
| Spain - Supreme Court, 10 October 2012, 6761/2012 |
Other sources:
Joint Position Defined by the Council on the basis of Article K.3 of the Treaty on European Union on the Harmonised Application of the Definition of the Term Refugee in Article 1 of the Geneva Convention.
Declaration on Principles of International Law Concerning Friendly Relations and Co-operations among States in accordance with the Charter of the United Nations - 5th September 1970.