Spain: Supreme Court. Chamber for Contentious-Administrative Proceedings, 18th July 2016, M, Appeal No. 3847/2015
Keywords:
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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. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article” |
Headnote:
The applicant requested international protection in Spain on 3rd November 2014, having been assaulted in his country of origin because of his sexual orientation. His partner died as a result of the assault. On the 26th October 2015, the Trial Chamber denied his request, stating that the allegations put forward by the applicant were “improbable or insufficient.”
On 18th July 2016, the applicant appealed this decision on two different grounds of appeal. First, on the grounds of an error when applying the relevant procedures for granting and withdrawing international protection, mistaking the phase of admission for the phase of concession. And second, on the grounds that the Chamber’s interpretation of the evidence provided was restrictive.
The Chamber granted the appeal against the decision made on 26th October 2015 and this decision was ruled null and void.
Facts:
The applicant files a request for international protection at the border post in the Adolfo Suárez Madrid-Barajas airport, claiming that he had been violently beaten in his country of origin when it was discovered that he was homosexual. His boyfriend died as a result of this attack.
A report by the United Nations High Commissioner for Refugees (UNHCR) states that the allegations made by the applicant cannot be ruled improbable and therefore the case should be given leave to proceed. However, the Chamber determined the case to be inadmissible-denied.
The appellant states that the Chamber should have assessed the case with a view to granting/ denying leave to proceed, where personal accounts that meet the minimum requirements for coherence are sufficient for granting leave to proceed.
Finally, the applicant’s legal representative points out the power that this Court has to incorporate the facts and considerations previously omitted and to carry out a new assessment, invoking the information that has been provided about the country of origin.
Decision & reasoning:
Another case, similar to this one, is mentioned- the Spanish Supreme Court Ruling, Third Chamber, section 3a. S12-2-2014, appeal no. 864/2013, in which a citizen of Cameroon, alleging to be homosexual was granted refugee status but this Chamber stated that this case is different because “it lacks any evidence to back the applicant’s account.”
The applicant’s legal representative lodged an appeal against said ruling on the grounds of a breach of Article 21 of Act 12/2009, dated 30th October, on the Right to Asylum and Subsidiary Protection, in relation to Articles 9.3, 24.1 and 120.3 of the Spanish Constitution as well as Articles 217, 326.1 334 and 348 of the Spanish Code for Civil Procedure, which relate to the assessment of evidence.
The ruling passed by this Chamber of the Spanish Tribunal Court on 12th February 2014 (Appeal no. 864/2013) and the CJEU ruling, dated 7th November 2013 are relevant in that in them, the effective criminal punishment for homosexuals in Cameroon is recognised as being, in itself, an “act of persecution”, and when granting/ denying leave to proceed, no circumstantial evidence is required, as cited in Article 21 of Act 12/2009.
The application in question was lodged at the border post thus, as the Court has previously indicated, the possibilities to reject a claim as inadmissible (in conformity with Article 21.2 of Law 12/2009) must be interpreted in a restrictive way.
Outcome:
Appeal granted.
Observations/comments:
This case summary was written by Harry Fathers, GDL student at BPP University.
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-199/12, C-200/12 and C-201/12, Minister voor Immigratie en Asiel v X, Y and Z |