Publié : 1/Jan/2014
Source: Rights in Exile Newsletter
On 7 and 8 October 2013, two important cases were decided in the Administrative Chamber of the Audiencia Nacional, a special and exceptional high court in Spain that exercises judicial review of administrative decisions by senior officers, ministers and secretaries of state.
The Court recognised two Statelessness claims by unrelated and separate Saharawi individuals from the Western Sahara territory who had both been born in Tindouf refugee camp, situated in Algeria, and both of whom had Algerian passports.
The facts of the cases were as follows. The individuals were born in the early 1980s in the refugee camps in Algeria, where they lived until 2011, when they each travelled to Spain using Algerian passports. Once in Spain, they claimed asylum on Statelessness grounds.
The reasoning of the Court can be divided into three sections: firstly (1), it analysed evidence and ascertained that the individuals were in fact residents of the Tindouf camps. Secondly (2), it explored the appellants’ relationship to Algeria and established that Algeria openly does not recognise the refugees at the camps as its citizens. And thirdly (3), it examined whether the exclusion clause of the 1954 Convention Relating to the Status of Stateless Persons was applicable. It found the exclusion clause in article 1.2(i) did not apply.
1) Both men provided a significant amount of documentation regarding their birth and stay at the camp, their Saharawi origin and documentation regarding their parents’ lives. These include birth certificates of their parents and themselves, ID cards of the Saharawi Arab Democratic Republic, census information and MINURSO records of the camp. The Court accepted that they were who they claimed to be.
2) The Court found that the passports do not grant the men Algerian nationality because Algeria, as a ‘humanitarian gesture, issues passports to the Saharawi refugees in order to allow them to travel to countries like Spain that do not recognise the Saharawi Arab Democratic Republic as a state’. The Court stated that ‘Algeria has never, explicitly or implicitly, manifested its intent to recognise or grant Algerian nationality to the Saharawi refugees who reside in the Tindouf camps’.
The court mentioned the fact that as an ex-Spanish colony, at the time of decolonisation in 1975, many Western Saharan were offered Spanish nationality. The parents of both of the appellants declined this offer.
3) The Court examined whether the exclusion clause in article 1.2(i) of the 1954 Convention Relating to the Status of Stateless Persons was applicable. This excludes ‘persons who are at present receiving from organs or agencies of the United Nations other than the UNHCR protection of assistance so long as they are receiving protection or assistance’. Examining the possibility for exclusion was deemed necessary as the Security Council resolution 690 (29 April 1991) established MINURSO (United Nations Mission for the Referendum in Western Sahara). The Court went through each of the responsibilities that MINURSO was entrusted with and concluded that in its mandate MINURSO was not required to provide assistance and protection to the Saharawi people such that article 1.2(i) was fulfilled. Therefore, the Court found that the exclusion clause did not apply.
In conclusion, the Court found that all requirements were met in order for the Convention Relating to the Status of Stateless Persons to apply, and it granted the status of Stateless persons to both appellants.
 Case references (Numeros de Identification Unicos): 28079 23 3 2013 0001990 and 28079 23 3 2013 0001979.
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