C. and her son D., both Colombian nationals, arrived in Spain on 6 October 2019 and applied for international protection on 7 September 2020. At that time D., the applicant’s son, was a minor. Their claims were denied by the Ministry of the Interior on 24 January 2022. On 6 July 2022, they appealed to the National High Court (Audiencia Nacional), seeking recognition of international protection.
The applicant claimed that she had been victim of prolonged abuse by her former partner, who was involved in drug trafficking. She mentioned incidents of sexual violence and threats. She claimed that she sought protection from the authorities in 2009, but that the police requested very detailed information, and she was finally unable to report the abuse. After moving to Panama in 2011, her whole family was detained and questioned when her former partner murdered her daughter’s boyfriend in 2014. She argued that she was persecuted as a woman, belonging to a particular social group, and that Colombian authorities failed to protect her.
The National High Court acknowledged that gender-based violence can constitute persecution under asylum law, but noted that when the agent of persecution is a non-state actor, national authorities must be unwilling or unable to protect the applicant. The National High Court found that Colombia had a legal framework in place to address gender-based violence, with mechanisms for victim protection. The court found that C.’s allegations were vague and contradicted credible country of origin information indicating that Colombian authorities would have provided protection. Additionally, the court highlighted that after 2009, the applicant made no further attempts to seek protection from the Colombian authorities and opted for moving to Panama. It also noted that when her daughter’s boyfriend was killed, the police intervened, which proved that the Colombian police was not indifferent to situations of violence. Thus, the court held that C. and D. did not qualify for refugee status.
On subsidiary protection, the court analysed whether armed conflict in Colombia exposed them to indiscriminate violence. Referring to the EUAA COI Report “Colombia: Country Focus” (December 2022), it concluded that conflict was geographically limited and did not affect their home area, making internal flight feasible.
Finally, the National High Court considered whether the applicants were eligible for a residence permit on humanitarian grounds. Referring to precedents established by the Supreme Court in cases 4338/2022 and 3385/2024 among others, the court explained that, such permits must be explicitly requested and supported by evidence during the administrative proceedings. Otherwise, the Administration is not bound to assess the possibility of granting humanitarian protection and, as a rule, the issue cannot be raised for the first time at the stage of judicial review.
Exceptionally, where the administrative file clearly reveals that the applicants are vulnerable individuals, the Administration must assess on its own initiative whether to grant or not a residence permit on humanitarian grounds. In this case, the applicants had not submitted a specific request during the first instance examination phase and the court, considering that D. was no longer a minor, found no evidence of specific vulnerability under Article 46 of the Spanish Asylum Law. Accordingly, the court also rejected granting the applicants a residence permits for humanitarian reasons.
In conclusion, the National High Court dismissed the appeal and upheld the Ministry’s decision, stating that the applicants did not qualify for refugee status, subsidiary protection or humanitarian protection.