Spain: Supreme Court. Chamber for Contentious-Administrative Proceedings, 26th July 2016, M, Appeal No. 374/2016
Keywords:
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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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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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
Headnote:
The applicant appeals against the ruling passed by the Directorate General of Domestic Policy on 14th February 2014, issued at the request of the Ministry, denying his application for international protection and against the ruling passed on 19th February 2014, denying his request for a review of his application, both denied in compliance with the Law. The applicant has requested residence in Spain on humanitarian grounds given that he has a son who is a minor and is of Spanish nationality. He invokes his right to remain at his son’s side to care for him.
Facts:
The applicant arrived in Spain in 2003 and did not request asylum or international protection at that time. After a long stay in Spain with a residence and work permit, a final administrative decision was passed by the Government Delegation Office in Valencia on 6th March 2013, ordering him to leave the country.
It was only when he found himself in a detention facility pending his expulsion when he applied for asylum on the basis of alleged persecution in his country of origin. He cited as humanitarian grounds being the father of a Spanish national who resides in Spain, though he did not cite any other circumstances relating to custody, maintenance, the place of residence of the child’s mother etc…
Spanish law authorises foreigners to remain in the country on the basis of family ties when a minor of Spanish nationality depends on and lives with the parent and when the parent is fulfilling their parental obligations to the child and is providing for their child in accordance with the Spanish Civil Code (Article 124.3 of the development regulation of Organic Act 2000 in the version approved by Royal Decree 557/2011) with one of the guiding principles of the Spanish Constitution being to protect the family (Article 39.2).
The trial ruling states that the term ‘humanitarian grounds’ does not refer to all humanitarian considerations, but must be associated with a real risk of danger, caused by serious political, ethnic or religious conflicts or disturbances. The applicant’s personal situation should be directly linked to the situation in the country of origin and they should not cite generic or vague humanitarian grounds. The applicant sustains that this interpretation of granting/denying residence on humanitarian grounds contradicts the jurisprudence of the Supreme Court in the Supreme Court Sentences dated 24th February 2012 (Appeal no. 2476/2011) and 11th March 2014 (Appeal no. 2797/2013).
Decision & reasoning:
The applicant’s legal representative appealed the decision of the Eighth Contentious-Administrative Proceedings Chamber of The Spanish National Court issued on 4th December 2015 (Appeal no. 164/2014), denying the applicant’s appeal against the ruling passed by the Directorate General of Domestic Policy on 14th February 2014, issued at the request of the Ministry, denying his application for international protection and against the ruling passed on 19th February 2014, denying his request for a review of his application.
The Ministry of Interior, at the recommendation of the Interministerial Commission for Asylum and Refuge, may authorise applications for residence in Spain, in accordance with Article 17.2 of Act 5/1984, dated 26th March, on the Right to Asylum and Refugee Status, provided that there are serious, well founded reasons to believe that returning to their country of origin would imply a real risk to the applicant’s life or to their physical wellbeing.
The Spanish jurisprudence has generally maintained a link or relation between the authorisation of residence on humanitarian grounds and the grounds for seeking asylum. However, there are multiple cases in which, despite citing a situation of conflict in the applicant’s country of origin, the most relevant factor when authorising residence in Spain has been a consideration of the personal circumstances of the applicant, which may not necessarily be linked to the grounds for seeking asylum- Supreme Court Sentences dated 4/11/2005 (RC 4752/2002); 18/11/2005 (RC 5194/2002); 22/09/2006 (RC 2956/2003); 16th June 2008 (RC 1579/2005).
The applicant’s only claim of being the father of a minor of Spanish nationality could be viewed as exceptional grounds for residence in Spain but, in this case, corresponds more closely to a last attempt to elude the enforcement of the administrative expulsion order, passed on the grounds of protecting public order, the legality of which was not contested at the time that it was passed.
Outcome:
Appeal denied.
Observations/comments:
This case summary was written by Harry Fathers, GDL student at BPP University.
Cited National Legislation:
| Cited National Legislation |
| Spain - Article 124.3 of the development regulation of Organic Act 200 |
| Spain - Spanish Constitution Article 39(2) |
| Spain - Article 17.2 of Act 5/1984 |
Cited Cases:
| Cited Cases |
| Spain - Supreme Court, 4.11.2005, No. 4752/2002 |