Spain – Administrative Chamber of the Supreme Court, 27 May 2019, Appeal No 5809/2018

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Country of Decision:
Country of Applicant:
Date of Decision:
27-05-2019
Citation:
Administrative Chamber of the Spanish Supreme Court, Judgement 696/2019, Appeal No 5809/2018
Court Name:
Administrative Chamber of the Spanish Supreme Court
National / Other Legislative Provisions:
Arts. 21 and 29 - Ley 12/2009
of 30 October
regulating the right of asylum and the subsidiary protection
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Headnote: 

The Spanish Supreme Court’s Administrative Chamber decides on the appeal of the State Attorney. He appealed the National Court’s judgement that accepted to consider an application for the re-examination of international protection that was denied in first instance, and was presented in a different place. The Supreme Court concludes that even if an application is not presented before the competent authority, are these authorities the ones who have to refer the case to the competent. Since this referral was not done, the petition for re-examination is valid.

Facts: 

The applicant submitted an initial application for international protection in the border checkpoint of Madrid-Barajas airport the 21 January 2017, that was denied by the Internal Affairs’ Ministry three days later. The applicant petitioned before a Police Station for the re-examination of her initial application. The Police Station was not the authority competent to consider this re-examination petition; it had to be sent to the competent body. However, this application for re-examination was not resolved, because it was not remitted to that competent body.

The applicant presented an appeal against the denial of her application before the National Court, because her re-examination application was not solved.

On 5 April 2018, the National Court granted the appeal, and therefore annulled the decision not to accept the claim for international protection. With this judgement, the applicant’s application was accepted, and her entrance and temporary stay in Spain was authorised. The National Court’s reasoning is that the referral of the applicant’s re-examination petition to the competent authority was not done on due time, which was 6 days (art. 6 Directive 2013/32/EU).

The State attorney appealed the National Court’s judgment before the Supreme Court asking for its annulment and posing some questions regarding the presentation of the applicant’s re-examination application. Legal questions were raised on when the period to register the application starts counting and where the presentation of the application should be done.

Decision & Reasoning: 

The applicant submitted an initial application for international protection in the border checkpoint of Madrid-Barajas airport the 21 January 2017, that was denied by the Internal Affairs’ Ministry three days later. The applicant petitioned before a Police Station for the re-examination of her initial application. The Police Station was not the authority competent to consider this re-examination petition; it had to be sent to the competent body. However, this application for re-examination was not resolved, because it was not remitted to that competent body.

The applicant presented an appeal against the denial of her application before the National Court, because her re-examination application was not solved.

On 5 April 2018, the National Court granted the appeal, and therefore annulled the decision not to accept the claim for international protection. With this judgement, the applicant’s application was accepted, and her entrance and temporary stay in Spain was authorised. The National Court’s reasoning is that the referral of the applicant’s re-examination petition to the competent authority was not done on due time, which was 6 days (art. 6 Directive 2013/32/EU).

The State attorney appealed the National Court’s judgment before the Supreme Court asking for its annulment and posing some questions regarding the presentation of the applicant’s re-examination application. Legal questions were raised on when the period to register the application starts counting and where the presentation of the application should be done.

Outcome: 

Appeal not granted.

Subsequent Proceedings : 

The applicant’s re-examination petition is admitted into consideration.

Observations/Comments: 

The Supreme Court ruled that the place for the presentation of the application  can be any register or public office of the Internal Affairs’ Ministry. With it, it overturned the narrow interpretation that the Administration was following on   Spanish and EU law.

The Administration tried to attribute the non-response of the re-examination application on the applicant’s behaviour, stating that she presented the re-examination application incorrectly (in a different place where she did the application for international protection). However, the Supreme Court confirmed that Member States shall ensure that the registration of application is made in due time, even if the presentation was done to authorities that were not competent.

This ruling potentially facilitates access to the procedure for applicants of international protection.

This summary was written by Laura Pastor Rodriguez, LLM Student at Gent University.

Other sources cited: 

Domestic Case Law Cited

STS 5 December 2007

STS 30 June 2006

STS 6 November 2006

Case Law Cited: 

CJEU - C-601/15 PPU, 15 February 2016