Graciela vs The State (Administración del Estado) [Decision of 05.04.2018 no. SAN 1677/2018]
According to ELENA Weekly Legal Update,
The State appealed a judgment from 5 April 2018 from the Administrative Chamber of the National High Court (Appeal 110/2017). This judgment held that due to the fact that the request for the re-examination of the asylum application made by the applicant at Barajas Airport, Madrid under the border procedures had not been decided in due time (two days), as foreseen under Article 25.1 of the Asylum Law, the asylum application should thus follow the ordinary procedure. It ruled that the applicant should be authorized to enter and remain provisionally in the territory, irrespective of what may be found in the final decision on the application.
In the instant proceedings, the Supreme Court upheld the ruling of the High Court, stating that the Asylum Law does not refer to the place where the re-examination request shall be made and it does not explicitly deny that this step follows the procedure provided for under the general Spanish Administrative Procedures law. As a result, the Court held that the application for re-examination can be made in any Ministry of Interior's Registry or Public Office as foreseen under the former law and not necessarily in the place where the applicant lodged the application for international protection. It found that this is in line with the guarantees provided for the applicant under the Asylum Law and noted that lawyers, which are mandatory in these cases, shall be free to request a re-examination in any of the abovementioned offices.
The Court found that the calculation of the two days foreseen for re-examination requests under the border procedures, and as referred to under Article 21.5, must begin from the moment of receipt of the request for re-examination by the competent body. In cases where the re-examination request is submitted to an authority that is not in a position to assess the application, in accordance with Article 6(1) of Directive 2013/32/EU, the law stipulates that the time limit is six days. It held that the inactivity of the Administration cannot harm the applicant’s fundamental rights.
The Supreme Court ruled that the appeal should be dismissed and that the judgment under appeal should be upheld.
Access to procedures; Border procedures;
ELENA Weekly Legal Update
Spain,ES: Supreme Court [Tribunal Supremo], Graciela vs The State (Administración del Estado) [Decision of 05.04.2018 no. SAN 1677/2018], 27/05/2019, ECLI: ES:TS:2019:1682ES: The Supreme Court ruled on a case of re-examination of an international protection application in border procedures