Spain - Supreme Court, 17 June 2013, No. 3186/2013

Facts:

The Appellant is a Cameroonian national.He claims to be a minor, a Catholic, and that he left his country because of persecution on the basis of his sexual orientation.Specifically, the Applicant pointed out that in his country of origin there is a hostile social attitude towards homosexuality, and adverse legislation.

Decision & reasoning:

The Supreme Court dismissed the High National Court’s judgment.At the same time, understanding that an accurate age assessment had not been made, the Court revoked the challenged judgment and ordered a reconsideration of the administrative procedure from the beginning, in order to provide the asylum seeker with legal assistance because it deemed the Applicant to have been without legal defence during the administrative process of his application.

Therefore,the object of this appeal was the lack of legal defence suffered by the asylum seeker because of the inadequate legal assistance during the asylum procedure, as well as the failure to adopt the measures and procedural safeguards required by law for a minor.

According to the decision-making body, the asylum seeker was effectively denied appropriate legal aid during the administration of the application. Furthermore, regardless of the UNHCR report of 4th February 2010 (which is recorded in the file), due to the alleged minority of the Applicant, the decision-making body would have recommended that the Applicant be treated as a minor.

The Supreme Court stressed that the absence of legal defence for the Applicant had resulted in a lack of necessary information about his rights and a lack of understanding of these rights (because the information was provided in Spanish without an interpreter). Also, there had been no explanation about why the assistance of a lawyer was necessary and how it could be obtained free of charge.

The Supreme Court based its decision on the case law criteria established by the Court itself in previous rulings, considering that “an interested person’s lack of information about their rights and more specifically, a lack of information about how to obtain legal assistance from a legal advocate could result in a real and effective absence of defence; a situation which is further aggravated in the cases of foreigners who do not speak Spanish and have no knowledge of Spanish Law”. Based on the aforementioned principle, the decision-making body further reasoned that the consequence of a lack of legal defence is to invalidate all subsequent administrative processes.

Furthermore, it emphasised that the right to a legal defence in the field of asylum proceedings should be guaranteed from the time the application is submitted, and it should be effective and adequate to guarantee the Applicant all their rights under law. Similarly, it stressed that the legal assistance should include a “legal assessment prior to the application, and not only to provide appropriate answers to police questions, but to provide proof or evidence to support the application”.

Therefore, in consideration of the arguments expressed, the Supreme Court concludes that it is dealing with a real and effective case of a lack of legal defence of an asylum seeker.

The other reason for annulling the challenged ruling is that the Appellant was allegedly a minor at the time the application for international protection was submitted.This circumstance was claimed by the Applicant at the time the asylum application was submitted and further documentary proof was supplied during the legal phase of proceedings.As pointed out by the Supreme Court, this is a very significant issue as minors enjoy specific guarantees and procedural safeguards in the asylum system.To elaborate more fully, according to the decision-making body, the State representative did not appropriately interpret the medical report on age assessment because the State focused on the result of the test as 19 years of age (emphasising an “age range”). However, at the same time the report also highlighted that in this specific case, after having examined the conclusions of the test, they would refer to an age of “over 17 years”.Based on this result therefore, there remained a doubt about the Applicant's actual age and there was clearly a high possibility that the applicant was a minor.

In their reasoning, the Supreme Court emphasised the inaccuracy of age assessments (particularly the Greulich and Pyle method) and stressed that this was a purely predictive method which necessarily implies variances and therefore does not give absolute and precise results about a person's age.By virtue of this reasoning, the Chamber concluded that the erroneous assessment of the Applicant’s age was behind the failure to apply the guarantees and procedural safeguards provided by the asylum system for applications submitted by minors.Furthermore, the subsequent result has been that all procedures that have taken place after this assessment have been carried out as if the applicant was of age.According to the Chamber, all of this is against the principle of presumption of minority, in the event there are doubts in this respect.

Outcome:

The appeal was upheld and therefore the challenged judgment was revoked.Furthermore, the Court ordered a repeat of the complete administrative procedure in order to provide the asylum seeker with legal assistance (including a legal advocate) and after that, the procedure will continue.

Observations/comments:

The purpose of this appeal (nº 4353/2012) is the judgment of October 4th, 2012 in the 8th Section of the Chamber for Contentious Administrative Proceedings at the High National Court, which dismissed the appeal brought by the Appellant against the Ministry of the Interior’s decision of February 15th 2011 to deny refugee status.

The significance of the judgment at issue and the considerations relative to the age assessment tests were highlighted, because in Spain the principle of presumption of minority is never applied in practice.The decision was also important for the arguments on the purely predictive value of the age assessments (particularly in regards to the Greulich and Pyle method) and on the impossibility of obtaining accurate results when estimating a person’s age. 

Other sources:

- UNHCR report of 4th February 2010, which appears in the asylum seeker’s file.

- UNHCR Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22 December 2009

- “UNHCR Guidelines on Determining  the Best Interests of the Child".

- European Parliament Resolution, 5th February 2009, on the implementation in the European Union of Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers and refugees