Spain - Superior Court of Justice, Appeal N° 1470/2016, 29 September 2017
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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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:
An asylum seeker was prohibited to travel from Ceuta (Spanish autonomous territory) to the Spanish peninsula despite the fact his application for international protection was being examined.
Facts:
The applicant, a Moroccan National, requested international protection in Ceuta on 4 April 2016.
On 20 May 2016, the applicant requested authorisation to move from Ceuta to the Spanish Peninsula, arguing that since he has applied for international protection, there should not be a restriction to his freedom of movement to the peninsula.
In this request the applicant argued that after his asylum application was received, he obtained, according to Spanish legislation, the possibility of staying in the Spanish territory whilst his application was being reviewed.
Such a request was made to the Immigration and Borders Authority and was rejected on 9 June 2016. In its decision, the authority argued that the applicant was not allowed to move from Ceuta to the Spanish peninsula due to the fact the applicant did not comply with any of the requirements to be admitted to the peninsula according to Article 5 of the regulation (EC) N° 562/2006 of the European Parliament and the Council.
The applicant appealed the decision of the authority before the General Police Direction, which is the hierarchical superior entity. However, according to official records the appeal was denied by resolution dated 7 September 2016.
Therefore, the applicant appealed the denial of his application, requesting the annulment of the resolution issued on 9 June 2016 and the authorisation to move from Ceuta to the Spanish peninsula.
While the appeal was being reviewed by the Madrid’s Superior Court of Justice, the applicant started another process before Ceuta’s N° 2 Contentious-Administrative Court, arguing that his fundamental rights were being violated due to the impediment of movement from Ceuta to the Spanish peninsula.
After reviewing the information provided by the applicant, Ceuta’s court recognised the right of the applicant of free transit and residence within all Spanish territory while his application for international protection is being reviewed.
Decision & reasoning:
The court reiterated the applicant’s arguments as even the Spanish Constitutional Tribunal recognises the right of free movement and free residence within the territory of Spain to all third country nationals whose application is being reviewed or who had been granted with international protection. Such provision includes the autonomous cities of Ceuta and Melilla.
Moreover, the Court recognises that even the Supreme Justice Tribunal has pronounced in previous cases that third country nationals who are entitled to live in Spain have the right to choose their residence and to move freely through the territory of the state without restriction.
Such decisions are supported also by the Schengen Agreement regarding Ceuta and Melilla. Considering both cities are Spanish territories, they are part of the Schengen territory and Spain could not impose additional requirements to the people traveling between them and the peninsula.
Regarding the Spanish regulation, the Court highlighted that Spanish Asylum Law established that the request for asylum grants the applicant subsidiary protection. Such subsidiary protection grants to the applicant protection against return, freedom of movement within the state among others.
In spite of this, the Court pointed out that the General Police Direction, due to a misinterpretation of the Regulation (EC) N° 562/2006 of the European Parliament and of the Council, interpreted that the applicant was not entitled to move to the Spanish peninsula as he does not have any of the documents mentioned in its article 5 of the Regulation.
In this case, the Court argued that Regulation 562/2006 is not applicable to the present case as the applicant has been provided documentation as an asylum seeker therefore he is in a regular immigration status and his rights are the ones that are recognised in the Spanish Asylum Regulation.
Outcome:
The Court granted the appeal to the applicant and nullified the rulings dated 9 June 2016 and 7 September 2016. The Court, thus granted the applicant the possibility of free movement within Spanish territory.
Observations/comments:
It is important to note that according to Spanish law, the initial process and the first appeal are reviewed by administrative authorities. Regarding the “second appeal”, it is called contentious-administrative appeal and must be reviewed by a judicial court.
This case follows other cases from the Spainsh courts, namely:
Spain - High Court of Justice of Andalucía. Nº 3567/2015,13 February 2015 (Appeal Ref. 138/2014) where the Court held that the Spanish administration was not entitled to refuse the applicant’s transfer to the Spanish peninsula from Cueta. The Court noted that the Spanish government is bound by the Geneva Convention and the Schengen Borders Code which provides an exception to the travel documents and visa requirements in Article 6(1) where humanitarian grounds, on grounds of national interest or because of international obligations dictate. See also: High Court of Andalucía, Decisions of 25 October 2010; 28 October 2010; 21 December 2010; 27 December 2010; 13 January 2011; 24 February 2011; 23 February 2012; 6 March 2012; 11 April 2012; 11 July 2014; 13 February 2015; Administrative Court of Ceuta, Decision 278/2017, 25 May 2017.
On the 11 July 2018 the High Court of Justice of Madrid granted precautionary measures for three asylum seekers in Ceuta to be transferred to the peninsular territory during the process.
On 30 October 2018, the Superior Court of Madrid, Contentious- Administrative Chamber, nº 817/2018 noted that according to the Spanish Constitution, asylum seekers in Melilla will be entitled to the right to freedom of movement to the Spanish peninsula provided that they have the required documentation and that their asylum application had been admitted by the Spanish Asylum Authorities.
This case summary was written by Oscar Pajuelo, LLM student at Queen Mary University.
Cited National Legislation:
Other sources:
Regulation (EC) N° 562/2006 of the European Parliament and of the Council - Article 5, 13.1 and 10.2