A national of a sub-Saharan country arrived by sea in Spain on 25 December 2017. Upon being rescued, he expressed his intention to request international protection in a document containing his photograph and personal details. Such document indicated that it constituted proof that the applicant intends to request international protection and authorized the applicant to reside in Spain for one month until the applicant effectively lodges his application, guaranteeing the absence of removal from the territory until then. The same day the document was included in the file, the applicant was issued a removal order.

The first instance court upheld the applicant's appeal and annulled the removal order. The High Court (Tribunal Superior de Justicia) quashed the first instance court decision, declaring that at the moment of issuing the removal order, the applicant had not formally lodged his asylum application, and as such, the removal order was lawful according to Article 58.3.b of Law 4/2000. The applicant brought the case to the Supreme Court, indicating there was cassational interest. He argued that, should the removal order only be suspended when the applicant formally lodges his application and not when expressing his intention to request protection, the right to request asylum would remain illusory.

The Supreme Court noted that from the relevant national legislation, i.e. Articles 18.1.d. and Article 19.1 of Law 12/2009, of 30 October 2009, regulating the right to asylum and subsidiary protection, it was not clear at which precise moment must the deportation and removal of the applicant be stopped.

The Supreme Court concluded that the mere expression of willingness to apply for asylum precludes issuing a removal order. It held that deportation or removal proceedings must be suspended from the moment a person expresses his intention to request asylum.  

In reaching this conclusion, the court observed Directive 2013/32/UE Recitals 26, 27, and Article 2. It noted that Article 2 does not contain reference in its wording to any formality. The court stated that the recast Asylum Procedures Directive stems from a non-formalistic principle and ties the guarantees that derive from requesting international protection - including the suspension of a removal order - to the mere fact that the willingness or intention to request asylum is manifested to authorities such as police or sea rescue, border guards, immigration authorities or detention center personnel, even when those authorities are not the competent ones for processing an asylum application.