Spain - High National Court, 11 July 2011, 315/10
Keywords:
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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. |
Headnote:
At issue in this case was whether the applicant qualified for subsidiary protection or protection for humanitarian reasons, considering her personal circumstances of extreme vulnerability.
Facts:
The applicant escaped from Nigeria where she had been abandoned by her husband. She had also had difficulty with her husband’s six other wives. She arrived in Algeria where she met her future second husband who was deported. They met again in Morocco. She gave birth to a child in Morocco and, after many difficulties, she arrived in Spain with her child where she gave birth to a second child. During this period she suffered considerable hardship.
The application for refugee status was refused. The Ministry of Interior held that a well-founded fear of being persecuted had not been established, and that grounds for subsidiary protection were not identified.
Decision & reasoning:
The appeal challenged the Ministry of Interior’s decision requesting, inter alia, that subsidiary protection or protection based on humanitarian considerations be granted.
The Court stated that the applicant’s reasons for leaving Nigeria did not correspond to persecution but to a situation of adversity and poverty. It was not proven, not even by “slight evidence”, that she had been persecuted.
When analysing the possibility of granting protection for humanitarian reasons, the Court examined the new Asylum Law 12/2009 [transposing the Qualification Directive] and its provisions concerning special consideration to “Minors and other vulnerable people” (Section V, Arts. 46 to 48).
The Court affirmed that the applicant could be defined as a vulnerable person as she was on her own in Spain, in an uncertain and adverse situation with two children.
In considering the provision on humanitarian considerations in Art. 46 of the new Asylum Law 12/2009, the Court stated that the applicant should be granted protection (based on humanitarian considerations), as otherwise a strict interpretation of this provision would deprive it of its meaning and purpose which is different to subsidiary protection status. The Court noted that the decision was based on the specific circumstances of the applicant.
Outcome:
The decision was partially successful: refugee status was not granted but the applicant and her children received protection in the form of authorisation to stay for humanitarian reasons.
Observations/comments:
This decision is important as it provides an interpretation of Asylum Law 12/2009 which is not clearly defined in law. The introduction of subsidiary protection status has been identified as an obstacle to the application of Asylum Law 12/2009 due to its narrowing of the focus of humanitarian protection (which had a wider interpretation in the former asylum law.)
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Spain - Asylum Law 12/2009 |
| Spain - Asylum Law 12/2009 - Art 46 |
| Spain - Asylum Law 12/2009 - Art 47 |
| Spain - Asylum Law 12/2009 - Art 48 |
Other sources:
European Union, Joint Position Defined by the Council on the basis of Article K.3 of the Treaty on European Union on the Harmonized Application of the Definition of the Term "Refugee" in Article 1 of the Geneva Convention of 28 July 1951 Relating to the Status of Refugees (Annex 1), 4 March 1996, 96/196/JHA