Spain - Supreme Court (Contentious-Administrative Chamber), decision 1091/2020 (appeal no. 3661/2019)

The initiation of the procedure for the recognition of statelessness status does not require the applicant to be in the national territory, it is sufficient for the applicant to be at a border point.

Case name (in original language)
Sentencia del Tribunal Supremo, Sala de lo Contencioso, 1091/2020 (recurso nº 3661/2019)
Case status
Case number
ECLI: ES:TS:2020:2660
Spain - Supreme Court (Contentious-Administrative Chamber), decision 1091/2020 (appeal no. 3661/2019), 23 July 2020
Date of decision
Court / UN Treaty Body
Supreme Court (Tribunal Supremo)
Language(s) the decision is available in
Applicant's country of residence
Relevant Legislative Provisions

Convention Relating to the Status of Stateless Persons, 28 September 1954

Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social (Aliens Act). 

Ley 12/2009, de 30 de octubre, reguladora del derecho de asilo y de la protección subsidiaria

Real Decreto 865/2001, de 20 de julio, por el que se aprueba el Reglamento de reconocimiento del estatuto de apátrida (Status Determination Procedure Regulation). 


The applicant is of Saharawi origin, with no recognised nationality. The applicant made a claim for international protection at a cross border point. The UNHCR reports recognised that the applicant was not entitled to international protection. The UNHCR suggested that the applicant’s stateless status should automatically be assessed by the Ministry of Interior. The Ministry of Interior rejected the UNHCR´s petition based on the fact that the applicant was based at a border point and was not within the national territory. The decision was overturned by the National Audience which ruled that the fact that the applicant is at a border point is irrelevant. The procedure for the recognition of the statelessness status must be automatically initiated by the Ministry of Interior, even if the applicant is not at the national territory. The Supreme Court upheld the National Audiences’ decision.

Decision & Reasoning
  1. The fact that the possibility of initiating the procedure while the party is at a border post is not expressly recognised in the laws does not mean that this option is prohibited. The provisions that define the statelessness status (art. 34 LOEX and art. 1 of the RD 865/2001) do not specified that the applicant must be within the Spanish territory. Likewise, the terms on which the law regulates the ex-officio initiation of the procedure lead us to conclude the opposite. That is, that it is possible to initiate ex-officio the procedure for the recognition of statelessness status even if the party is at a border point.
  1. An interpretation that would prevent the initiation of this procedure if the applicant is at a border point would not take into account the uniqueness of the particularly precarious situation of stateless persons, fundamentally, in relation to the difficulties in retaining their documentation during the displacement. This will restrict the procedure to those who were able to enter the Spanish territory or to cases of sudden statelessness. This restriction would be contrary to the statement contained in the preamble of the Convention on the Status of Stateless Persons about the "deep interest [of the United Nations] in stateless persons and they have made an effort to ensure the broadest possible exercise of fundamental rights and freedoms" and to the preamble of RD 865/2001 itself, which refers to stateless persons as "people to whom the International Community has paid its attention because it understands that it is desirable to regularise and improve their condition."

No violation. The Supreme Court upheld the inferior court’s decision to overturn the Government’s decision, refusing the automatic procedure assessing the applicant’s stateless status.

Caselaw cited

Sentencia del Tribunal Constitucional 53/2002, de 27 de febrero de 2002