A ray of hope for stateless Sahrawis in Spain?

Valeriia Cherednichenko, PhD researcher in Advanced Studies in Human Rights at Charles III University of Madrid (Spain)
/ 7 mins read

The majority of the applications for the statelessness status in Spain come from applicants of Western Saharan origin, or Sahrawis[1]. However, this issue does not get as much attention as it deserves from the Spanish authorities or wider society, leaving them without benefits of recognition as stateless. This stands in contradiction with the Spanish Supreme Court's jurisprudence in recent years, which has granted the status of statelessness to a considerable number of these applicants. In this regard, the Supreme Court case law has considered three distinct questions when dealing with cases of statelessness from applicants of Saharan origin depending on the specific background of these applicants. First, the Court considered the case of those applicants that come from the Sahrawi refugee camps of Tindouf, Algeria and whether they are in possession of Algerian nationality. Secondly, the Court developed a doctrine concerning the possible attribution of a Moroccan nationality to applicants of Saharan origin born in the territories occupied by the Kingdom of Morocco since 1975. The third question addressed in Sahrawi cases concerned whether the applicants registered by MINURSO (the United Nations Mission for the Referendum in Western Sahara), by which they may be deemed to be receiving protection and assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees, would be considered as an exception of application of the Convention relating to the status of stateless persons 1954.

On the 5th of September 2013, for the first time,[2] a person of Sahrawi origin was recognised as stateless by the Spanish Minister of Interior upon the proposal of the General Directorate of the Internal Policy[3]. This case stands out among others as it shows a new approach of the Ministry of Interior towards the cases of stateless Sahrawis. This successful case is the result of the serious and rigorous work of the Spanish Commission for Refugee Aid (CEAR-Euskadi) that has assisted the applicant throughout the process, starting with the application for the recognition of the statelessness status in Bilbao.

The case shows that with statelessness status recognised via the administrative path, it should no longer be necessary to resort to the judicial one, which is often costly and long. Moreover, this case reaffirms the juridical lines of reasoning that the Spanish Supreme Court developed while dealing with the cases on the recognition of statelessness status of Sahrawis. The case under discussion follows the same line of reasoning and refers to the past decisions of the Supreme Court.

Establishing statelessness

The applicant was born in the territory of Western Sahara in 1967. After 1975, when Spain relinquished the administrative control of the territory to a joint administration by Morocco and Mauritania, she moved to the refugee camps of Tindouf in Algeria. With regards to the status of Sahrawis who live in the refugee camps of Algeria, this administrative decision quotes the numerous decisions of the Supreme Court,[4] where the Court states that Algeria has never expressed, explicitly or implicitly the recognition or concession of Algerian nationality to stateless Sahrawis resident in the camps of Tindouf. Despite the fact that the applicant possessed an Algerian passport, similarly to many other Sahrawis resident in the refugee camps of Tindouf, this document is only issued to Sahrawis for humanitarian reasons. It allows them to travel to countries like Spain, which have not recognised the Sahrawi Arab Democratic Republic (SADR)[5]. It can only be used for this sole purpose and additionally requires the issuance of the corresponding visa by the Consulate of the country of destination in Algeria. Thus, the Supreme Court has noted on many occasions that the issuance of an Algerian passport does not amount to the conferral or recognition of Algerian nationality.

Secondly, the Court developed a doctrine concerning the possible attribution of Moroccan nationality to Sahrawi applicants born in the territories occupied by the Kingdom of Morocco since 1975. In the case of the applicant under discussion, her family and she moved from Western Sahara to the camps of Tindouf immediately after Morocco took the administration of the territory under its control. By moving to the refugee camp, applicant’s family and consequently the applicant herself have implicitly not accepted Moroccan nationality.

Considering exclusion

The last question addressed a number of times by the Supreme Court in its past decisions and considered by the Ministry of Interior in this particular case concerns the inclusion of the applicant into the Register of the United Nations Mission for the Referendum in Western Sahara (MINURSO). This prompted the evaluation of whether Sahrawi fall under Article 1.2 i) of the Convention Relating to the Status of Stateless Persons (1954 Convention) which deals with the grounds for exclusion from the application of this Convention. This provision states that the 1954 Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance so long as they are receiving such protection or assistance.

The UN Security Council Resolution 690 of 29th of April 1991 mandated MINURSO to: monitor the ceasefire; verify the reduction of Moroccan troops in the territory; monitor the confinement of Moroccan and Frente POLISARIO troops to designated locations; take steps with the parties to ensure the release of all Western Saharan political prisoners or detainees; oversee the exchange of prisoners of war; implement the repatriation programme; identify and register qualified voters; organise and ensure a free and fair referendum and proclaim the results[6]. Within MINURSO’s mandate there is no indication of granting protection and assistance to Sahrawis as outlined in Article 1.2. i) of 1954 Convention. Thus, the Ministry of Interior concluded that the applicant does not fall under the indicated category of exception.

The decision

The Minister of Interior concluded that according to the 1954 Convention and in compliance with Article 34.1 of Spain’s Organic Law 4/2000, the applicant of this case is stateless and issued recognition of this status.

In my opinion, this might be considered a ray of hope in the situation of stateless Sahrawis. The duration of the consideration of the case was nine months, whereas the usual period of decision-making via judicial procedure lasts from two to three years or more from the moment of the initial application for the statelessness status and until the final decision of the Supreme Court. Furthermore, the administrative procedure requires less resources and costs than the judicial one due to the absence of all the court costs.  

Whether the number of such cases on recognition of statelessness status of persons of Sahrawi origin undergoing the administrative procedure in Spain will set a precedent, establish a road-map for the development of case law on stateless Sahrawis or just become a drop in the ocean remains to be seen.

NB.  The Sahrawis are the largest group seeking recognition of statelessness status on the territory of Spain. From September 2012 until today, 600 people of Western Saharan origin submitted applications for the recognition of their stateless status with assistance from CEAR Euskadi. Meanwhile, 30 lawsuits filed by CEAR Euskadi before the National Court of Spain remain, 9 of which were accepted by the National Court Administration, recognising the reason behind CEAR Euskadi's lawsuits.[7] With only 14 cases were concluded favorably so far, over 500 (known) Sahrawis still cannot exercise their basic human rights.

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Valeriia Cherednichenko is currently doing her PhD in Advanced Studies in Human Rights at Charles III University of Madrid (Spain). She holds a Bachelor degree in International Law, a Master degree in International Law and English Translation, both from the Institute of International Relations of Taras Shevchenko National University of Kyiv, and an LLM in International and European Public Law: Human Rights from Tilburg University, the Netherlands. She has previously dealt with issues of nationality and statelessness during her internships at the Statelessness Programme in Tilburg and UNHCR Spain. Areas of research and interest include: human rights and nationality, statelessness in the Middle East and North Africa, statelessness in Ukraine and Dominican Republic. She is now focusing on statelessness determination procedure in Spain.

[1] Out of 75 application in 2011, 36 belonged to persons of Saharan origin, see “The situation of refugees in Spain, Report 2012”, Comisión Española de Ayuda al Refugiado (CEAR-Euskadi; Spanish Commission for Refugee Aid), 2012,p.233, http://www.cear.es/files/up2012/Informe%202012.pdf

[2] To the knowledge of CEAR-Euskadi.

[3] The administrative decision provided through the courtesy of CEAR-Euskadi.

[4] Decisions of  the Spanish Supreme Court of 20th of November 2007, 18th of July of 2008, 28th of November 2008, 19th of December 2008, 30th of October 2009 and the most recent  one of 20th of September 2011.

[5] SADR is a sovereign partially recognised state that claims sovereignty over the entire territory of Western Sahara, which was occupied by Spain between 1884 and 1975.

[6] Security Council Resolution 690 (1991).

[7] Courtesy of  CEAR Euskadi.

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