Spain - Supreme Court, 23 May 2012, Nº 3847/2012
| Country of Decision: | Spain |
| Country of applicant: | Ivory Coast |
| Court name: | Supreme Court, Chamber for Contentious Administrative Proceedings, Madrid, Section 3, Rapporteur: María Isabel Perelló Doménech) Appeal No: 4699/2011 |
| Date of decision: | 23-05-2012 |
| Citation: | 3847/2012 |
Keywords:
| Keywords |
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is 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. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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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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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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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
Two appeals have been made - by the asylum seeker and the State representative – to the Supreme Court against the judgment given by the High National Court which partially upheld the appeal filed against the Ministry of the Interior’s decision to deny international protection to an Ivorian national. The High National Court’s decision, while denying refugee status, granted the applicant permission to reside in Spain under Article 17(2) of the Asylum Law (humanitarian considerations).The asylum seeker requests that his refugee status be recognised.The Public Prosecutor requests that the permit to reside in Spain on grounds of humanitarian considerations be retracted.The Supreme Court decided to maintain the applicant’s residence permit on grounds of humanitarian considerations on the basis of the updated country of origin information and the consequent risk to the person’s life or physical integrity.
Facts:
The applicant, an Ivorian national, requested asylum in Spain on 12th July 2007. In his application he claimed to have fled the country because of the war.He affirmed that he was of Djoulla ethnicity and had been born and lived in Danané.Both the rebel group - Force Nouvelle – and the government forces – los Loiliss – attacked his city and his father was killed.He had to flee his home, losing track of his mother and brother.He took refuge in the house of a friend until three others of his friends were killed and he then decided to leave the country, even though he was a minor. He arrived in Spain on 3rd July 2006, having travelled through and stayed in Guinea, Mali, Algeria and Morocco.
The applicant claimed that his life was at risk both at the hands of the rebels as well as the government forces because, as he originates from the North of the country, the government will view him as a rebel.
Decision & reasoning:
In regards to the appeal brought by the asylum seeker, the Supreme Court has decided that this cannot proceed further because the whole narrative which supports the application is based on his status as a resident of Danané.The Chamber considers that previous proceedings have provided sufficient proof that this information is dubious, inasmuch as he actually originates from Abidjan, a place where -in accord with the UNHCR report of July 2007 – there is no risk of his suffering persecution on the grounds of his ethnic origin.
In regards to the appeal brought by the Public Prosecutor, the Supreme Court rejects the petition and upholds the High National Court’s judgment.The Public Prosecutor claims that the residence permit on grounds of humanitarian considerations should correspond to a situation of “serious political, ethnic or religious conflict or disturbance” (Article17(2) of Asylum Law 5/1984) and that the socio-political situation has stabilized and therefore, in the event of his return, the appellant does not run any risk of persecution.
The Supreme Court states that there are two different protection schemes, namely, refugee status or the status conferred by subsidiary protection (previously, in Spain:residence permit on the grounds of humanitarian considerations).The persecution that must be proven to grant a residence permit on grounds of humanitarian considerations (it must be remembered that previously the concept of subsidiary protection did not exist in Spain) does not have to be on an individual basis, a contrario sensu, when dealing with refugee status.Therefore, this demonstrates that the evaluation criteria for a residence permit do not require individual persecution as in the case of refugee status.Additionally, in cases of permits granted on grounds of humanitarian considerations, the updated country of origin information takes on greater importance.By virtue of the aforementioned, it can be surmised that when the application for asylum was submitted, the circumstances of the conflict had normalised as affirmed in the 2007 UNHCR report. However, during the later process of challenging the legal and administrative decisions - in 2011 - the situation in the country had deteriorated considerably.The Supreme Court raises the issue of the need to take into account updated country of origin information.Information that pertains to the moment of the asylum application should not be taken as a decisive reference but rather information pertaining to the current time at which the judicial decision is made.In the light of European legislation and case law, the Supreme Court further adds that unexpected circumstances should be taken into consideration in order to continue international protection even when the circumstances that caused the protection to be granted originally have ceased.
Outcome:
Both appeals are rejected by the Supreme Court which affirms the High National Court’s decision to deny refugee status and to extend the residence permit on grounds of humanitarian considerations.
Observations/comments:
In this case the Supreme Court reminds the Public Prosecutor of two important issues:
The evaluation criteria for two very different matters – a residence permit on grounds of humanitarian considerations and refugee status – should not be compared on equal grounds.In particular, for the first of these, the alleged persecution does not have to be on an individual basis.It should be borne in mind that the legislation of reference is Asylum Law 5/1984 (modified in 1994) where the issue of subsidiary protection does not yet appear.However, as the Qualification Directive is in force, these assumptions should apply in connection with the concept of residence on grounds of humanitarian considerations (Article17(2)). This could be viewed as an imperfect transposition of the concept of subsidiary protection.
Secondly, the Court requires accuracy in regards to the type of country of origin information that should be taken into account when evaluating an application:It should be up-to-date information from the actual time of the ruling of the last judgment, allowing the possibility for protection to be granted due to unexpected circumstances.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Spain - High National Court, 8 July 2011, 302/2010 |
| Spain - Supreme Court, 4.11.2005, No. 4752/2002 |
Other sources:
UNHCR reports on the situation in the Côte d'Ivoire from July 2007 and 10th February 2011.