A Colombian family requested international protection in Spain. Their request was rejected. They appealed the decision and requested protection based on humanitarian grounds due to their vulnerable situation, namely having two children and not being able to exercise their liberty and economic, social, and cultural rights, given their political persecution.

The applicants requested the Supreme Court to clarify whether an authorization to reside on humanitarian grounds can be considered a third level of protection within the national legal framework governing international protection in Spain, that is Asylum Law 12/2009 of 30 October 2009. Also, they requested the court to clarify whether such protection can be granted in the context of a request for international protection, after having rejected asylum and subsidiary protection.

The Supreme Court observed the different amendments to the Law and Royal Decrees governing humanitarian protection within the framework of asylum. It noted that since all those changes took place, Spanish legislation on asylum has included within its framework an authorization to reside on humanitarian grounds not necessarily linked or connected with asylum grounds or conflict situations, instability, or risk in the country of origin that can cover other circumstances such as social and personal reasons of the applicant. The Supreme Court noted that since the reform operated through Royal Decree in 2005, such circumstances or humanitarian reasons could and had to be assessed within the asylum request. Thus, there are three levels of protection within the international protection framework in Spain: asylum, subsidiary protection, and a temporary residence permit, which is the authorization based on humanitarian reasons. Such authorization relies on a purely discretional basis, and it is clearly distinguished from the other two, however, it is part of the same legal framework.

While concluding, the Supreme Court highlighted that both qualification directives of 2004 and 2011 envisage that Member States can grant such type of protection on humanitarian grounds, as a national form of protection, which must not be confused with asylum or subsidiary protection and should be clearly distinguished.

Being a third level of protection within the international protection framework means that it is the asylum legislation that regulates it. As a result, it is an authorization to reside that differs from the remaining authorizations to reside on exceptional grounds and of a humanitarian nature, which is regulated by Spanish Immigration Law.

Then, the court indicated how the concept of ‘humanitarian reasons other than international protection' must be interpreted. The court held that as long as humanitarian protection is not confused, i.e. integrated into subsidiary protection, it might very well be connected to the reasons that justify granting international protection. The key factor is that the given grounds in each case could be integrated into the abstract legal concept of ‘humanitarian reasons'.

The court noted that vulnerability or a situation of vulnerability does not introduce differences to the type of humanitarian grounds that could be appreciated, it rather demands a proactive attitude from the administration which demands even to consider ex officio the possible presence of such humanitarian circumstances.

The court concluded by reaffirming its judicial doctrine and stating that residence based on humanitarian grounds must be based on exceptional circumstances that must be expressed and substantiated but which do not have to be necessarily related to a situation of risk, conflict, or instability in the country of origin, but can be linked to the personal situation of the applicant and the deterioration that returning to their country of origin would entail.

The court noted that the contested decision had not considered their vulnerability situation, or the existence of humanitarian grounds, or that such grounds might not coincide with those envisaged in the Spanish immigration laws (Article 126 of Royal Decree 557/2011).

The court concluded that the Spanish administration should have assessed ex officio after rejecting the request for international protection, whether there were grounds to grant protection based on humanitarian grounds considering the personal and social circumstances in the case.

It noted that the contested decision had accepted that the father of the family had been persistently subject to threats and extortion. From the information contained in the file, the Supreme Court concluded that given the seriousness and repetition of such threats and extortion, they had sufficient grounds to constitute a real risk for the security of the family altogether, including the younger children, an aspect which was not duly considered in the rejecting decision. The court noted that whilst it had been argued that the family could relocate to another region of Colombia to reach safety, that disregards the vulnerability and difficulty of overcoming extortion by the applicants in the present case. It concluded that in the present case, there were substantial grounds justifying the concession of humanitarian protection to the family given their vulnerable situation.

The Supreme Court admitted the appeal and fixed the doctrine mentioned above. It annulled and left without effect the decision, granting the applicant humanitarian protection.