Spain - High National Court, 28 September 2010, 310/2009
Keywords:
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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.” |
Headnote:
This appeal challenged a negative decision of the Ministry of Interior to refuse family refugee status extension to the applicants whose son was granted refugee status in 2006.
Facts:
The applicants’ son was granted refugee status in Spain in 2006 alleging a well founded fear of persecution on the grounds of political opinion in Colombia. In 2009, his parents applied for refugee status by extension on the grounds of economic and emotional dependency.
Spanish Asylum Law 12/2009, Art. 40 allows for refugee status extension to family members - to those relatives in ascendant line (first degree of relationship) excluding cases where dependency towards the person granted refugee status has not been established.
Thus, the applicants claimed their right to refugee status by extension based on their existing dependency. Moreover, they asserted their right to family life assured by different European and international legal instruments.
The Ministry of Interior refused the applicants’ claim and questioned the applicants’ dependency on their son who was a student at university in Colombia.
The applicants responded stressing that their other son was responsible for paying University costs and their economic dependency on this son was established.They added that due to their age, they did not have access to the labour market; therefore, their economic independence was neither effective nor possible.
They also alleged that they had to leave Colombia because they received threats from the same paramilitary group that caused their son to escape.
Decision & reasoning:
The High National Court stated that the situation of dependency was not sufficiently proven. The dependency had to be put into practice.The documents provided by the applicants did not reflect with certainty a situation of dependency.
Outcome:
The High National Court refused to grant refugee status extension to the applicants.
Observations/comments:
This decision illustrates how the provision of family extension of refugee status is addressed today by Spanish asylum legislation: the main obstacle is the interpretation of the clause concerning economic dependence which is applied more strictly to direct relatives in ascendant and descendant line than to other relatives.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| ICCPR |
| ICCPR - Art 23 |
| Spain - Constitution - Art 39 |
| Spain - Constitution - Art 18 |
| Universal Declaration of Human Rights - Art 16 |