Spain – High National Court, 26 January 2011, 144/2011
| Country of Decision: | Spain |
| Country of applicant: | Western Sahara |
| Court name: | High National Court |
| Date of decision: | 26-01-2011 |
| Citation: | 144/2011 |
Keywords:
| Keywords |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
Headnote:
This decision from the High National Court requested the Ministry of Interior to suspend the expulsion of Saharan citizens who lodged an appeal against the rejection of their asylum application. In the appeal, they submitted a precautionary (temporary) measure asking for the suspensive effect of the previous decision which would have resulted in their expulsion from Spanish territory.
Facts:
On the 5th of January 2011 a small boat (patera) travelling from Western Sahara arrived at the coast of the Canary Islands, fleeing an uprising in the region of El Aaiún. Twenty-two Western Saharan citizens claimed asylum and five of those applications were accepted at the provisional admission procedure stage and 17 were rejected by the Ministry of Interior and a decision was made to remove them. This decision was appealed before the High National Court by means of a precautionary measure requesting the suspensive effect of the expulsion order based on the right to apply to remain in Spain pending the examination of the appeal.
The national police carried out the actions required to execute the expulsion of the applicants, however before they could, they had to wait for a decision from the High National Court could decide on the precautionary measure presented.
Decision & reasoning:
The High National Court requested the Ministry of Interior to suspend the process of expulsion of the applicants based on their request for a precautionary measure to suspend the execution of the decision appealed.
The High National Court stated that when an applicant requests a precautionary measure to prevent the execution of an expulsion order he is entitled to remain in the host country and in the facilities legally provided in such cases.
Outcome:
The national police suspended the expulsion of the applicants while the appeal was still under examination.
Subsequent proceedings:
The High National Court refused to grant refugee status and ordered the expulsion of the thirteen applicants. As a last resort, thirteen Saharan asylum seekers lodged an appeal to the ECtHR alleging risk of suffering serious harm if the return became effective (Art 39 of the ECtHR Regulation).
The ECtHR decided to provide protection while the request was under examination and asked Spain to suspend the expulsion. The High National Court accepted the recommendation suspending the expulsion of the applicants.
Observations/comments:
This decision has a political influence: it is the first time the ECtHR intervened in a case of rejected asylum seekers’ expulsion from Western Sahara.