Spain - Spanish Supreme Court (Tribunal Supremo), Cassation and Procedural Breach Appeal, 23 September 2014 (Appeal Nº 1382/2013)
Keywords:
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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.” |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Protection
Description
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. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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Cessation of protection
Description
Pertaining to thecircumstances in which a person may no longer be considered to be a refugee or to be eligible for subsidiary protection. |
Headnote:
The Supreme Court held that an immigrant whose passport or equivalent identity document reveals their minority cannot be subjected to additional tests in order to determine his age unless a proportionality judgment about the document’s reliability has first been carried out. The Court also held that medical techniques to determine an age cannot be applied indiscriminately.
Facts:
Upon arriving in Spain, Miss B.A. (hereafter, the “Claimant”) had a passport and birth certificate from her country of origin that proved she was a minor. However, the public administration subjected her to medical tests in order to determine her age.
On 2 September 2009, the Claimant received a decision from the Spanish government (the “Dirección de Atención a la Infancia y Adolescencia del Departamento de Acción Social y Ciudadanía de la Generalitat de Cataluña”: hereafter, the “Decision”) stating that the tests proved that she was not a minor. As a result, the director of her reception centre was removed as the legal guardian of the Claimant.
The Claimant appealed the decision before the lower court, which upheld the appeal. The prosecution appealed and the appellate court reversed the first judgment.
Decision & reasoning:
The Supreme Court upheld the judgment of the lower court. It reasoned that:
(1) The validity of a passport depends on (i) the requirements of the country of origin and, (ii) the court being in possession of enough data to determine the identity and nationality of its holder.
(2) When security forces locate an unidentified foreigner and it is not possible to determine with certainty whether they are a minor, the case must be reported to the prosecution and the necessary medical tests to determine age must be carried out (article 35.3 of Law 4/2000).
(3) However, where the validity of a passport is not in dispute and when the passport reveals that an immigrant is a minor, that immigrant is not an unidentified foreigner. Therefore, they shall not be subject to additional tests to determine their age.
(4) Tests for the determination of age shall not be applied indiscriminately. If required, a proportionality test shall be carried out and the reasons for considering the passport or equivalent identity document unreliable shall be weighed against the reasons for considering it reliable, which was not what happened in the case in question.
In addition, the court concluded that medical techniques to determine a foreigner’s age (both in case of documented and undocumented migrants) cannot be applied indiscriminately. With regard to the claimant, the Court held that her minority could not be questioned as she had a valid passport and birth certificate proving her minority. As a consequence, she should be granted the protections provided by law to unaccompanied minors.
Outcome:
The Supreme Court upheld the appeal, annulling the previous judgement, and confirming the judgment given by the lower court.
Observations/comments:
It is established as case law that an "immigrant whose passport or equivalent identity document reveals his/her minority cannot be considered an undocumented foreigner to be subjected to additional tests of age determination. In order to carry out these additional tests when a valid passport is available, a reasonable justification is required. Thus a proportionality test must be carried out, and the reasons as to why the document is unreliable must be adequately weighed against the reasons as to why it is reliable. In any case, medical techniques to determine a foreigner’s age (being both in case of document and undocumented migrants) cannot be applied indiscriminately.”
This case summary was written by Linklaters LLP.
Cited National Legislation:
Other sources:
European Parliament resolution of 12 September 2013 on the situation of unaccompanied minors in the EU (2012/2263(INI).