Spain: Supreme Court gives the green light for a transfer to Spain from Greece, following a request at the Spanish Embassy

Thursday, October 15, 2020

On 15 October 2020, the Supreme Court of Spain delivered a ruling in case 3445/2020.

Mr Adolfo, an Iraqi national, had arrived in Greece in February 2016 with his wife, Mrs Araceli, and their two daughters. In January 2017, they formally lodged their applications for international protection in the context of the Relocation Mechanism. In April 2017, they lodged a new application for international protection at the Spanish Embassy in Greece, after which, in July 2017, the Greek authorities informed the family that Greece had assumed responsibility for Mr. Adolfo’s application, because penal procedures had started against him, while his wife and daughters would be transferred to Spain. Finally, in September 2017, and after having been transferred to Spain, Mrs. Araceli and her two daughters lodged an application in Spain, based on which they were granted subsidiary protection in June 2018.

In March 2019, the National Court (‘Audiencia Nacional’) ruled, in the context of appeal proceedings, that Mr. Adolfo had to be transferred to Spain. Indeed, it considered that the Spanish authorities had, by awarding subsidiary protection to his family, implicitly recognised the fulfilment of the conditions set out in Article 38 of Law 12/2009 on asylum and subsidiary protection, and a Royal Decree, which regulate applications for international protection in embassies and consulates, and which were at stake in the case of N.D. and N.T. v. Spain. Subsequently, the Spanish authorities launched cassation procedures against this decision, in essence to clarify the conditions of applicability of Article 38.

In its assessment, the Supreme Court underlined that Article 38 of Law 12/2009 constitutes a procedural norm, which, in itself, only allows for the transfer of an applicant, and thereby aims at facilitating the lodging of an application in Spain in conformity with Law 12/2009. This reasoning is based on the Spanish government’s submissions in N.D. and N.T. v Spain (para. 224), where the Spanish authorities reasoned that Article 38, read in combination with a Royal Decree, provides a valid legal pathway in cases where an asylum applicant’s physical integrity is at risk. The prima facie assessment of the fulfilment of the conditions of Article 38 must be performed by the Spanish Ambassadors, who also grant the documents that allow for the transfer to Spain, and who need to inform the Spanish asylum authorities of the transfer request and, finally, who must collect as much information as possible regarding the situation of the applicant.

The Supreme Court agreed with the National Court that the assessment of the risk to Mr. Adolfo’s physical integrity, which had to be carried out with regard to his country of origin, was implicitly fulfilled by the recognition of his family as persons in need of international protection and that the lack of such determination by the authorities is justiciable. Therefore, it dismissed the cassation appeal and confirmed that Mr. Adolfo had the right to be transferred to Spain, where he can apply for international protection.

Based on an unofficial translation by the EWLU Team.

This item was reproduced with the permission of ECRE from the ELENA Weekly 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.                               

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