On 29 November 2022, the applicant appealed before the Supreme Court the decision rejecting her request for international protection. On the 22 March 2023, the Supreme Court ruled on the admissibility of the appeal and declared that the request lodged presented ‘cassational interest’.

The concrete interest related to determining the nature and effects of the differential treatment that must be given to international protection applicants who are in a situation of vulnerability specified in Article 46 of Spanish Asylum Law 12/2009, both from the procedural and substantive point of view; determining when such a treatment as vulnerable asylum applicants is needed, and the significance of such treatment as to the possibility of granting them an authorization to reside based on humanitarian reasons.

Before assessing the substance of the question raised, the Supreme Court offered a detailed reference to the key jurisprudence analysing humanitarian protection. In line with the cited case law, the Supreme Court concluded, for the interpretation of Article 46 Asylum Law, that there is a general regime and a specific regime, as follows:

• General regime - Article 46(3) of the Asylum Law: To request humanitarian protection it is first necessary to request or apply for international protection. Then, it is necessary to claim humanitarian reasons different from those argued to claim subsidiary protection. The Supreme Court noted that this is a specific and differentiated request, attached to the main request for international protection, so that the administration is obliged to answer it and the court can, at a later stage rule on it. In that respect, the Supreme Court highlighted that in the administrative procedure the authority cannot pronounce or rule on something which was not previously requested. The Administration is obliged to consider and motivate the answer to the request for humanitarian protection.
• Specific regime – Article 46, paragraphs 1. and 2 of the Asylum Law.  The scope of those two paragraphs is more restricted and specific, in that they exclusively apply to the categories of vulnerable persons referred: children, unaccompanied minors, persons with disabilities, persons of old age, pregnant women, single parents with children, victims of torture or serious forms of physical, psychological or sexual violence, or trafficking.  With respect to these provisions, the Supreme Court considered that from the procedural and substantive point of view first, an application for international protection must precede their application. Second, that it is not necessary to attach a second request formally asking humanitarian protection as the two paragraphs impose on the authorities the duty to comply with two concrete obligations for vulnerable persons requesting international protection. The first is to generally consider their situation of vulnerability. The second is a proactive obligation on the Administration to comply and adopt, motu propio, the necessary measures to give a differential treatment when it is necessary to vulnerable persons’ requests for international protection.

Applying the considerations exposed to the substance of the case, the Supreme Court ruled that:

In the rejected decisions there was not even the most minimal reference to the possibility of the applicants to reside in Spain due to humanitarian reasons. There was furthermore absolutely no reference to the fact that the applicants are vulnerable, nor to any specific measure adopted in that regard.

The Supreme Court noted that the National High Court (Audiencia Nacional) erred in considering that the applicants had failed in not providing specific reasons to justify their stay based on humanitarian reasons, for the specific regime of Article 46(1) and (2) of the Asylum Law applies to them. In that respect, the applicants are a single mother with two children and her niece and by law they are already defined as vulnerable persons. Thus, in the case at hand, there is not an additional requirement to claim different reasons from those raised in the initial claim for international protection.

The Supreme Court clarified that to assess the granting of humanitarian protection, it is not necessary to assert the individual persecution of the applicant. It is rather the social conflict and how the social conflict in the country of origin affects the specific person, which can be corroborated by country-of-origin information, or any other submitted evidence. In addition, the Court highlighted that protection based on humanitarian reasons does not relate to any type of ‘general’ humanitarian reasons. Instead, the claimed humanitarian reasons must be related with a real, tangible risk of lack of protection due to conflict or serious political, ethnic or religious clashes.  To this end, it is crucial to evaluate whether there are reasons or circumstances that would affect the fundamental rights of the applicant upon return to his or her country of origin. The alleged humanitarian reasons must be sufficiently specific with respect to the personal situation of the applicant and the conditions in the country of origin.

The Supreme Court considered that, as per the information in the administrative file, the reiterated extortion the applicant experienced in Colombia was sufficiently meaningful to entail a real risk to herself and her children.

The Supreme Court concluded that the reasons to grant the applicant humanitarian protection are given in her case. The court noted that the Minister of the Interior rejected her application arguing that she could resettle in a different part of Colombia where the extorting group does not operate. The court remarked in that respect that the minister disregarded the fact that in the case at hand it is a single mother responsible for three children, and that the applicant already denounced the extortion to the Attorney General of Colombia stating that she had changed domicile and resettled to another locality to escape the extorting group but that she did not manage to overcome the extortion.

The Court concluded that given the entity of the extortion and the threats received, considering the applicant’s profile as a vulnerable person, the judgment is partially annulled in respect of the refusal to grant the applicant humanitarian protection.

The Supreme Court fixed as interpretative doctrine of Articles 37 and 46 of the Spanish Asylum Law, for future judgments, the considerations contained in the present judgment.