Spain - Supreme Court, 2 January 2009, 4251/2005
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
Headnote:
The Supreme Court held, in light of a UNHCR Report concerning Colombian asylum seekers, that the burden of proof had been reversed; the High National Court had to establish that the Colombian authorities could effectively protect the applicant from the agents of persecution.
Facts:
The applicant applied for asylum in Spain claiming to have suffered persecution as a result of extortion carried out by unknown non-state agents.
Her claim was refused by the High National Court. The High National Court found that the appellant did not provide evidence that she requested assistance and protection from the national authorities. The applicant also did not establish that the Colombian authorities were involved in the alleged persecution. Additionally, the Court found that there was a real and effective possibility of internal relocation.
Decision & reasoning:
The Supreme Court considered a UNHCR Report of September 2002 on International Protection Considerations Regarding Colombian Asylum-Seekers and Refugees which stated that, currently, there are no areas in Colombia without risk. The report added that whoever asserts that there is no risk on return has to provide evidence to establish that there is a real and effective possibility of protection. Moreover, the report stated that, in the context of the Colombian internal conflict, the Colombian authorities tolerate, support or even coordinate their actions with the paramilitaries. Specifically, in the Department of Antioquia, the authorities’ participation and their responsibility for the paramilitaries’ actions have been observed.
The Supreme Court held, considering UNHCR’s report, that the burden of proof had to be reversed and it had to be established that the Colombian authorities could effectively protect the applicant from the agents of persecution. As this fact had not been proved, the Supreme Court rejected the High National Court’s decision.
Outcome:
The appeal was successful and the Supreme Court ruled that refugee status had to be granted.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Spain - Constitution - Art 24(1) |
| Spain - Constitution - Art 120(3) |
| Spain - Civil Code - Art 3 |
Other sources:
UNHCR, International Protection Considerations Regarding Colombian Asylum-Seekers and Refugees, 1 September 2002