The applicant, who described himself as being Saharawi, claimed that he should not be granted statelessness status because he was entitled to Spanish nationality. Alternatively, he argued that he should be recognised as being stateless. The Supreme Court found that his entitlement to Spanish nationality could not be considered, given that it has never been requested before by the applicant. However, the court found that given that he could not be considered as Moroccan or Algerian under the law of these two countries, nor as covered by the exception foreseen in Article 1(2)(i) of the 1954 Convention, his statelessness status should be recognised.
1954 Convention relating to the Status of Stateless Persons, Articles 1(1) and 1(2)(i)
Resolution 690 (1991) of 29 April 1991, of the UN Security Council, on the situation concerning Western Sahara
Collaboration agreements between Algeria and the Polisario Front regarding identification documents.
The applicant was born in the Tindouf refugee camp in Algeria, which hosted many refugees from Western Sahara, the region where his parents and grandparents came from. The applicant was born in Saharawi territory and he described himself as being Saharawi. In 2002, he came to Spain from Cuba and requested to be granted asylum, but his application was not admitted for processing and he was returned to Cuba.
He requested the recognition of statelessness status but it was denied by the Ministry of Interior on 31 July 2003 because he was under the protection of a UN body different from UNHCR and because he could have obtained an Algerian passport or the Moroccan nationality.
The applicant appealed this decision before the National Court (Audiencia Nacional), which confirmed the Ministry of Interior's criteria. He then appealed to the Supreme Court, which revoked the National Court's decision.
The applicant argues that the Ministry of Interior's denial of the recognition of statelessness status should be confirmed because the applicant is entitled to Spanish nationality. The fact that he has the right to Spanish nationality entails that he cannot be considered as stateless.
Alternatively, he claims that he should be granted statelessness status, and that the appealed judgment violates Articles 1(1) and 1(2)(i) of the 1954 Convention, because these provisions cannot be used to justify the denial of his application.
According to the Ministry of Interior:
1. The applicant was under the protection of a UN body different from the UN Refugee Agency (in particular, the United Nations Mission for the Referendum in Western Sahara or MINURSO). Accordingly, the 1954 Convention does not apply while the person is being protected or assisted by that body.
2. Under the collaboration agreements between Algeria and the Polisario Front regarding identification documents, the applicant could have obtained an Algerian passport, which these agreements grant to Saharawi citizens.
3. The 1954 Convention does not apply insofar as the applicant was born in Saharawi territory and could have therefore obtained the Moroccan nationality.
The granting of the Spanish nationality was not only not requested before the Ministry of Interior but it contradicts what was requested before the courts, so it cannot be considered before the Supreme Court.
However, the applicant should be granted statelessness status based on the following arguments:
1. Until the referendum regarding the status of Western Sahara is held by the UN, the recognition of statelessness status cannot be denied based on the possibility of obtaining Moroccan nationality (Article 1(1) of the 1954 Convention). This is because it is the nationality of the country which occupied the territory previously occupied by the Saharawi, who tacitly refused to opt for this nationality when they abandoned that territory and travelled as refugees to Algeria.
2. Algeria has never made any declarations regarding the granting of Algerian nationality to the Saharawi who live as refugees in the Tindouf camps. The passports granted to Saharawi refugees do not imply acquiring the Algerian nationality, but are mere documents granted to them for humanitarian reasons (i.e. so that they can leave Algerian territory and travel to countries which do not recognise the Saharawi Arab Democratic Republic, such as Spain). Therefore, the recognition of statelessness status cannot be denied based on the possibility of obtaining the Algerian nationality, because the applicant cannot be considered as Algerian under Algerian law (Article 1(1) of the 1954 Convention).
3. Resolution 690 (1991) of 29 April 1991, of the UN Security Council, does not grant the protection required by Article 1(2)(i) of the 1954 Convention to exclude its application, taking into account the objectives with which that resolution created the UN Mission for the Referendum in Western Sahara.
The applicant is granted statelessness status by the Supreme Court, which orders the Ministry of Interior to record this status. Consequently, the Supreme Court revoked the National Court's decision to confirm the Ministry of Interior's decision refusing the applicant's request.
Decision of the Contentious-Administrative Chamber of the Supreme Court of 7 October 2002 (cassation 579/1998)
Decision of 20 November 2007 (cassation 10503/2003)