On 25 November 2022, S., her husband A., and their minor daughter L., Afghan nationals displaced to Pakistan in late 2021 following the Taliban takeover, requested the Spanish Embassy to transfer them to Spain in order to apply for asylum, pursuant to Article 38 of the Asylum Act.

The applicants appealed to the National High Court against the implicit dismissal resulting from the Embassy's lack of reply. Their appeal, lodged under an urgent procedure for the protection of fundamental rights, was admitted by the court, which on 8 May 2025 issued interim measures ordering the Embassy to procure all necessary documents and arrange the urgent transfer of the applicants to Spain pending the proceedings.

The court recalled that the Supreme Court's rulings in Ministry of Interior v Araceli and Adolfo (STS 3445/2020, 15 October 2020) and Applicant v Ministry of Interior (STS 680/2024, 6 February 2024), reaffirmed that Article 38 of the Asylum Act was fully applicable despite not yet having an implementing regulation, and identified the regulations that, albeit predating the Asylum Act, filled the regulatory gap. The court restated that Article 38 requires applicants to be in a country other than their country of origin, where they would face a danger connected to the asylum claim.

The court noted that both applicants were former public prosecutors in Afghanistan, and that S. in particular served in the Department for the prevention of violence against women from 2018 until 2021. In the year preceding the Taliban takeover, the applicants had received several death threats, whose credibility was corroborated by documents from the Afghan General Prosecutor's Security Commission submitted in the proceedings, as well as by the fact that the Taliban had already attempted to kill the applicants before their flight.

The court referred to the report of the UN Special Rapporteur on the situation of human rights in Afghanistan, published on 13 May 2024 (A/HRC/56/25), the EUAA Country Guidance on Afghanistan, published in May 2024, and a report by the Spanish General Commissariat of Information, and concluded that the applicants posed no security threat and that their statements were consistent with the country of origin information. The High Court found that judges, prosecutors and court officers faced significant risks of persecution in Afghanistan, particularly female officials, as the Taliban deny women the right to judge men. The release of incarcerated individuals after the Taliban took power increased the risk of retaliation against prosecutors and judges who had charged and sentenced them.

Regarding the situation of the applicants in Pakistan, the court noted that Pakistan has not signed the Refugee Convention nor its Protocol. It also noted that, since 31 December 2022, Pakistan had initiated the first phase of its plan to repatriate Afghan nationals, threatening foreigners irregularly staying in Pakistan, such as the applicants, with up to 3 years imprisonment. This prompted over half a million Afghans to leave Pakistan since late 2023, according to UN sources mentioned in the ruling. The court further held that a second phase of the repatriation plan was initiated in mid-2024, with an estimated 800,000 Afghan nationals to be deported. Additionally, the court observed that it is publicly known that in December 2022 the Ministry of Foreign Affairs had authorized the transfer to Spain of 25 Afghan female judges and prosecutors, considering them eligible for asylum.

In light of the above findings, the High Court upheld the appeal and confirmed the applicant's right to be transferred to Spain to apply for asylum pursuant to Article 38 of the Asylum Act.