Spain - Supreme Court, Contentious - Administrative Chamber, appeal no. 555/2005

The applicant, who described himself as being Saharawi, claimed that he should not be granted statelessness status because he was entitled to Spanish nationality. Alternatively, he argued that he should be recognised as being stateless. The Supreme Court found that his entitlement to Spanish nationality could not be considered, given that it has never been requested before by the applicant. However, the court found that given that he could not be considered as Moroccan or Algerian under the law of these two countries, nor as covered by the exception foreseen in Article 1(2)(i) of the 1954 Convention, his statelessness status should be recognised.

Case name (in original language)
Tribunal Supremo de lo Contencioso - administrativo, Sección 5ª, Sentencia de 18 Jul. 2008, Rec. 555/2005
Case status
Decided
Case number
555/2005
Citation
Supreme Court, Contentious - Administrative Chamber, decision of 18 July 2008 (appeal no. 2600/2016)
Date of decision
State
Court / UN Treaty Body
Supreme Court (Tribunal Supremo)
Language(s) the decision is available in
Spanish
Applicant's country of birth
Algeria
Applicant's country of residence
Cuba
Relevant Legislative Provisions

1954 Convention relating to the Status of Stateless Persons, Articles 1(1) and 1(2)(i)

Resolution 690 (1991) of 29 April 1991, of the UN Security Council, on the situation concerning Western Sahara

Collaboration agreements between Algeria and the Polisario Front regarding identification documents.

Facts

The applicant was born in the Tindouf refugee camp in Algeria, which hosted many refugees from Western Sahara, the region where his parents and grandparents came from. The applicant was born in Saharawi territory and he described himself as being Saharawi. In 2002, he came to Spain from Cuba and requested to be granted asylum, but his application was not admitted for processing and he was returned to Cuba.

He requested the recognition of statelessness status but it was denied by the Ministry of Interior on 31 July 2003 because he was under the protection of a UN body different from UNHCR and because he could have obtained an Algerian passport or the Moroccan nationality.

The applicant appealed this decision before the National Court (Audiencia Nacional), which confirmed the Ministry of Interior's criteria. He then appealed to the Supreme Court, which revoked the National Court's decision.

Decision & Reasoning

The granting of the Spanish nationality was not only not requested before the Ministry of Interior but it contradicts what was requested before the courts, so it cannot be considered before the Supreme Court.

However, the applicant should be granted statelessness status based on the following arguments:

1. Until the referendum regarding the status of Western Sahara is held by the UN, the recognition of statelessness status cannot be denied based on the possibility of obtaining Moroccan nationality (Article 1(1) of the 1954 Convention). This is because it is the nationality of the country which occupied the territory previously occupied by the  Saharawi, who tacitly refused to opt for this nationality when they abandoned that territory and travelled as refugees to Algeria.

2. Algeria has never made any declarations regarding the granting of Algerian nationality to the Saharawi who live as refugees in the Tindouf camps. The passports granted to Saharawi refugees do not imply acquiring the Algerian nationality, but are mere documents granted to them for humanitarian reasons (i.e. so that they can leave Algerian territory and travel to countries which do not recognise the Saharawi Arab Democratic Republic, such as Spain). Therefore, the recognition of statelessness status cannot be denied based on the possibility of obtaining the Algerian nationality, because the applicant cannot be considered as Algerian under Algerian law (Article 1(1) of the 1954 Convention).

3. Resolution 690 (1991) of 29 April 1991, of the UN Security Council, does not grant the protection required by Article 1(2)(i) of the 1954 Convention to exclude its application, taking into account the objectives with which that resolution created the UN Mission for the Referendum in Western Sahara.

Outcome

The applicant is granted statelessness status by the Supreme Court, which orders the Ministry of Interior to record this status. Consequently, the Supreme Court revoked the National Court's decision to confirm the Ministry of Interior's decision refusing the applicant's request.

Caselaw cited

Decision of the Contentious-Administrative Chamber of the Supreme Court of 7 October 2002 (cassation 579/1998)

Decision of 20 November 2007 (cassation 10503/2003)