Spain - High Regional Court of Andalusia, 28 October 2010, 437/2010
Keywords:
| Keywords |
|
Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
|
Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
Headnote:
The case concerns an appeal lodged before the High Regional Court through the special procedure for Fundamental Rights (with the intervention of the Public Prosecutor). The applicant claimed asylum in Ceuta, Spain, and the application was accepted under the preliminary examination procedure. The applicant decided to move to the Spanish peninsula but he was prevented from crossing the border. He alleged that his right to free movement had been violated.
Facts:
The applicant claimed asylum in Ceuta. Once the application was accepted through the preliminary examination carried out within the provisional admission procedure, the applicant tried to move to the Spanish peninsula territory but the border police prevented him from crossing to the peninsula.
The applicant lodged an administrative appeal through the special procedure for Fundamental Rights before the Administrative Court of Ceuta. The applicant alleged that his right to freely move and live within the Spanish territory, guaranteed by the Spanish Constitution and European legislation , had been violated.
This appeal was rejected. The Administrative Court determined that the applicant entered Spain irregularly and this right was only guaranteed to regular migrants.
Decision & reasoning:
The applicant lodged an appeal against the administrative decision before the High Regional Court of Andalusia through the same special procedure for Fundamental Rights. This Court stated that the reasoning expressed by the Administrative Court could not be accepted as every asylum seeker enters the country under an administrative irregular situation.
The Spanish Asylum Law 12/2009, Art 36.1 (h), guarantees the right to free movement and residence to anyone that has been granted refugee status, regardless of the administrative status the migrant held when they entered.
The preliminary examination is a step prior to the granting or refusal of refugee status and it must be considered that whoever is accepted under the preliminary examination (Provisional admission procedure) has a regular, although temporary administrative status.
The Court examined Art 5 of Organic Law 4/2000, as amended by Organic Law 2/2009, which provides that foreigners can move freely within Spain. Their movement can be restricted in accordance with the law. Such limitations must be proportionate. According to Art 19.2 (d) of the Spanish Asylum Act persons who have applied for asylum must notify the authorities of a change of address. Therefore, restrictions on the right to freedom of movement are limited to the duty of the applicant to inform the authorities about any change of address. Thus, in any case, Spanish legislation allows for restrictions on asylum seekers from enjoying the right of free movement and residence within the country.
Outcome:
The Court stated that the right to free movement and residence within the Spanish territory must to be guaranteed. The applicant was free to move from Ceuta to the Spanish mainland. The applicant was obliged to inform the authorities of any change of address.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Spain - Asylum Law 12/2009 - Art 36(1)(h) |
| Spain - Constitution - Art 12 |