The Supreme Court considered that Western Sahara was not part of Spain for the purposes of granting nationality to a Saharawi residing in the territory of Western Sahara until the departure of Spain from said territory. The Supreme Court overturned an earlier ruling by the High Court of Justice of the Balearic Islands that had granted Spanish nationality to a Sahrawi applicant.
Spanish Civil Code
Royal Decree 2258/1976 of August 10 (RD 1976, 1843), on the option of Spanish nationality available to natives of the Sahara.
The underlying dispute is whether or not the applicant, born in Western Sahara in 1973, has or does not have Spanish nationality in accordance with the Spanish Civil Code.
The applicant is of Saharawi origin and was born in Western Sahara in 1973 (that is to say, before Royal Decree 2258/1976 was enacted). She understood that she was entitled to Spanish nationality as the daughter of Spanish nationals also born in Western Sahara, and therefore requested confirmation of her Spanish nationality before the Civil Registry of her domicile (in Ibiza). The Civil Registry rejected the request and the applicant appealed, in proceedings that ended with the Supreme Court denying the applicant Spanish nationality.
Between 1958 until 1975, the Western Sahara was a Spanish colony. During that time all Saharawis born in “the autonomous region of Spain” had the right to claim Spanish nationality. The applicant had not exercised the provisions of the Royal Decree 2258/1976 that allowed Saharawis to opt for Spanish nationality within one year. The General Directorate of Registries and Public Notaries denied the application for Spanish nationality. The High Court of the Balearic Islands then ruled that it was appropriate to declare that the applicant had Spanish nationality of origin from the date of her birth, ordering the issuance of any documents, offices or dispatches necessary to that effect. The High Court relied on Article 17.1.c of the Spanish Civil Code, which accords Spanish status to "those born in Spain of foreign parents, if both lack nationality or if the legislation of neither of them attributes a nationality to the child".
The applicant argued that:
- She should be declared Spanish from birth in accordance with the literal wording of Article 17 of the Spanish Civil Code in force at the time of her birth, as she was the daughter of Spanish nationals who were born, like her, in Spanish territory.
- She had not been able to opt for Spanish nationality under the Royal Decree 2258/1976 as she had been a minor and due to the difficulties that her legal representatives had in doing so, lacking information because they had to travel to a Saharawi refugee camp. Furthermore, in any case, that rule was not applicable because it infringed the principle of hierarchy of norms. As the lower court (i.e., the High Court of the Balearic Islands) had recognised, the process for opting for Spanish nationality was complicated by the fact that Saharawis had to appear before a judge of the Civil Registry in Spain rather than proceed via consular services.
The arguments of the General Directorate of Registries and Public Notaries rejecting the application are summarised in the decision’s Legal reasoning:
- Royal Decree 2258/1976 provided Saharawis one year to opt for Spanish nationality, and the applicant had not applied for it.
- Royal Decree 2258/1976 provided some natives of former Spanish Sahara the right a period of one year to opt for Spanish nationality, under certain conditions. The applicant had not opted for Spanish nationality.
The finding of the Supreme Court is in line with previous decisions of the Supreme Court, which declared the status of stateless persons for those born in Western Sahara and Sahara before its decolonisation and whose circumstances are similar to those of the applicant in these proceedings.
The decision explained that “whatever the opinion held as to the conduct of Spain as a colonising power throughout its presence in Western Sahara, the indisputable fact is that it [the Court] recognises the colonial nature of the Sahara - hardly questionable even during the provincialization stage - and that, therefore, the Sahara cannot be considered Spain at all in terms of nationality of origin”.
One of the judges drafted a dissenting opinion, with the support of two other judges.
People born in Western Sahara during the time it was a Spanish colony do not benefit from the preferential status established in Spanish legislation for citizens from former colonies. Thus, the Supreme Court denied the applicant’s request for Spanish nationality.