Eight Afghani nationals requested at the Spanish embassy in Pakistan to be evacuated to request international protection in Spain. Their request was rejected, and a relative in Spain appealed the decision requesting precautionary measures, asking to urgently grant visas to his relatives in Pakistan and to urgently provide for a safe passage to Spain to request protection. The request for precautionary measures was rejected on the basis that arranging the transfer is facultative and that it is outside the competence of the embassy to decide.

The applicant's legal representative appealed the decision to the Supreme Court, arguing that the ambassador of Spain in Pakistan is competent to arrange the safe transfer. The representative also argued that if the embassy issued an administrative act rejecting the application in its substance, the applicants should have the right to appeal the decision in court and should have the opportunity to request precautionary measures. They stated that the basis for the precautionary measures lies in the danger they are exposed to, which is proven by the fact that a safe passage has been set up.

The Supreme Court admitted the appeal, recognizing that there had only been one judgment interpreting Article 38 of the Spanish asylum law, deeming it necessary to decide on the matter to reaffirm or rectify the doctrine so far set up.

The Supreme Court concluded that it is the ambassadors of the Embassies of Spain abroad where a transfer request has been introduced based on Article 38 of Spanish Asylum Law which are competent to decide on the transfer. The court noted that in the case of the applicants, the Spanish embassy in Islamabad had assumed such competence and had issued decisions accepting requests for transfer for other closer family members of the applicant.

Then, regarding the impact that the existence of a pre-established safe passage has in deciding on precautionary measures, the court held that:

• A precautionary measure ensuring transfer to Spain could be justified when the applicants are in a situation of serious risk to their physical integrity.
• Such danger to their physical integrity must be in the country of origin and not in the country where the embassy of Spain is located and where the transfer request is submitted.
• The mere existence of a safe passage proves by itself the concurrence of the requirements to grant precautionary measures.
• The public interest and the weighing of the competing interests are in favor of granting the precautionary measures requested. Also, the requested precautionary measures do not interfere with the normal functioning of the Public Administration.
• The establishment of a safe passage is a final administrative act, presumably valid and enforceable. This administrative act, which recognizes the rights of the applicants, has never been reviewed ex officio or declared harmful. The fact that the situation in Pakistan is not particularly serious and that it does not appear to be especially dangerous for the integrity of the applicants, including doubts about the economic dependence of some or other family members, should not be an obstacle to its extension to all applicants. 

In deciding, the court noted that the Ministry of Foreign Affairs, European Union and Cooperation established the safe passage, declared the applicants to be under the protection of the Government of Spain, and declared that these persons had the right to travel to Spain to seek international protection. Thus, at least at that time, the risk to their life and physical integrity was expressly recognized. The court noted that there is still a potential risk for the applicants as the application has been denied.

The court further noted that the administration considered it proven that at that time the appellants were being persecuted by the Taliban because of the head of the family's links with the Spanish authorities. Thus, the Administration has assumed and recognized the danger to their lives. The safe conduct proves that the public interest is that these persons be transferred to Spain so that they can request protection from the Spanish Government. In this respect, the court remarked that although time has elapsed, the Administration cannot now disassociate itself from its act, at least concerning those interested parties who maintain their claim.

The court concluded that in the context of a refusal of the request made under Article 38 of the Spanish Asylum Law, it is not possible to ignore the relevant impact of the existence of a safe-passage previously granted to allow the person to leave the country of origin for Spain.

The Supreme Court ordered the ambassador of Spain in Pakistan to urgently arrange the transfer to Spain of the eight applicants located in Pakistan and to urgently grant a visa or safe passage to Spain so that they can request international protection.