Spain - The Higher Court of Justice of Madrid rules in favour of free movement of asylum seekers from Melilla to the territory of Spain

Wednesday, November 21, 2018

On 21 November, the Administrative Chamber of the Higher Court of Justice of Madrid ruledon a case concerning nine asylum-seekers in Melilla, who had communicated their will to travel to the Spanish peninsula to the Department of Alien Affairs and Borders.

While the applicants were about to leave the Melilla territory, they were apprehended by police officers, who issued a decision stating that the documentation they had did not allow them to travel to the peninsula. The claimants challenged this decision by first arguing that the police officers exceeded their authority, acting without any observation of due process. They also requested the annulment of the administrative decision and the recognition of their fundamental right to freedom of movement within the national territory of Spain, as well as their right to freely choose their residence in Spain.

By observing that the members of the National Police had properly followed due process for the purpose of controlling the Spanish borders, as foreseen under national law, the Court held that the administrative decision was legal, as it did not constitute an excess of authority. However, contrary to the arguments of the State’s legal counsel and according to the Court’s previous jurisprudence, it recalled that a foreign person, who has lodged an admissible asylum application in Spain, has a constitutional right to freely move within the national territory of Spain. It further observed that the fact that asylum seekers have an obligation to communicate to the authorities any change in their place of residence implies their right to actually choose their residence.

Consequently, the Court annulled the administrative decision since it violated the applicants’ rights to freedom of movement and residence under Article 19, in light of Articles 10.2 and 13.1, of the Spanish Constitution.

Based on an unofficial translation by the ELENA Weekly Legal Update.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE. 



Freedom of movement (right to)