Spain: The Spanish National Court. Chamber for Contentious-Administrative Proceedings, 11th October 2016, JP, Appeal No. 30/2016
Keywords:
| Keywords |
|
Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
|
Temporary protection
Description
"A procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons. Note: In Latvia, the right granted to a group of persons to reside in the Republic of Latvia for a specified period of time if such persons need protection and they are or have been forced to leave the country of their citizenship or, if the persons are stateless persons, their country of former residence due to: ethnic conflict, or civil war." |
|
Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
|
Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
Headnote:
The applicant appeals the ruling of the Directorate-General for Domestic Policy, made on 16th February 2015, which denies leave to proceed (inadmissible) for international protection, claiming that another Member state (Poland) and not Spain is responsible for the examination of the asylum application as, on 3rd February 2015, Poland granted the applicant a visa.
The Member State before which the request for international protection is presented has the power to authorise temporary residence for the applicant, at their discretion, if the applicant is suffering from a serious illness which requires medical attention. In this case, the applicant is suffering from an illness but, according to the National Court, it is not a serious illness which requires specialised medical assistance.
Facts:
On 1st July 2014, the applicant who is from Ukraine obtains a short-term visa for Poland, making Poland the Member State responsible for the examination of his request for international protection.
He then requests temporary residence in Spain on humanitarian grounds. Temporary residence can be granted to foreigners who are suffering from a sudden, serious illness, which requires specialised medical assistance, not available in their country of origin.
On 19th February 2015, a medical report is released in which the illness suffered by the applicant is described. The Chamber concludes that “this is not a serious illness requiring specialised medical care, the applicant simply requires regular check-ups and there is no evidence to suggest that these cannot be carried out in Poland.”
Decision & reasoning:
The trial ruling states that “the decision contested by the applicant denies his request for the right to asylum in Spain on the basis of Article 20.1a) of Act 12/09, dated 30th October on the Right to Asylum and Subsidiary Protection, which establishes that “1. The Spanish Ministry of Interior, at the recommendation of the Asylum and Refuge Office, may, by coming to a reasoned decision, deny leave to proceed when any of the following circumstances applies: 1 When the Member State lacks jurisdiction to examine the application: a) when Spain is not responsible for the examination of the application.”
The EC Regulation no. 604/13 of the European Council and Parliament, dated 26th June 2013 establishes the criteria and mechanisms for determining which Member State will be responsible for the examination of any given application for international protection in a Member State, submitted by a citizen from a third country or a stateless person. Article 12.2 provides that: “2. If the applicant has a valid visa, the Member State that issued the visa will be responsible for the examination of the application for international protection.”
The Regulation of the Organic Act 4/2000, approved by Article 126 of the RD 557/2011, dated 20th April on the rights and liberties of foreigners in Spain and their social integration, reformed by the Organic Act 2/2009 affirms that “Authorisation on humanitarian grounds can be granted in the following circumstances: 2. Foreigners suffering a sudden, serious illness, requiring specialised medical attention which would not be available in their home country and where interrupting or stopping their treatment places their life and/or their health at great risk. In order to assess their condition, a medical report issued by the corresponding health authority is required.”
The allegations of this appeal, as we have seen, predominantly revolve around the application of Article 17.1 of the EU Regulation 604/2013 and Article 46.3 of Act 12/1999, when considering whether the humanitarian grounds cited by the applicant apply.
Outcome:
Appeal denied.
Observations/comments:
This case summary was written by Harry Fathers, GDL student at BPP University.