After the rejection of his asylum application and lodging an appeal against it, an applicant from El Salvador requested precautionary measures to the National High Court.

The National High Court noted that the applicant was requesting precautionary measures based merely on the possibility of subsequently being expelled from Spain. It reiterated the case law of the Supreme Court on the interpretation of Article 46(5) of the recast Asylum Procedures Directive 2013/32/EU and concluded that in the given case the precautionary measure could not be granted. The court held that such judicial control over the use of precautionary measures guarantees that the asylum system is not de-naturalised by prolonging the asylum regime until a judicial decision on precautionary measures is issued when there is no apparent risk of persecution for the reasons that justify international protection.

Although the court recognised that for the expulsion of the applicant a different administrative act would have to be issued, it held that mere social or economic crisis or general insecurity by itself cannot lead to a decision prohibiting return, regardless of the particular circumstances of the applicant in the country. The court observed that in the present case there were no prima facie reasons to believe that the applicant would be within one of the circumstances envisaged in the Geneva Convention, that the Interministerial Commission on Asylum agreed on the rejection decision and UNHCR had not disagreed on the proposal for a rejection of the request for asylum, neither did the applicant submit during appeal proceedings specific vulnerability or circumstances to consider in the context of the negative decision.

The court dismissed the request for precautionary measures emphasizing the relevant public interest in executing a rejection decision for reasons concerning the Member States' border control and migration policy, which subsequently impacts the functioning of the Schengen area.