The Supreme Court grants temporary protection to a Ukrainian who had an expulsion order prior to the start of the war

It points out that the sentences that confirmed their return predate the government's order to protect those affected by the conflict

MADRID, 21 Dic. (EUROPA PRESS) -

The Supreme Court (TS) has granted the temporary protection granted to people affected by the war in Ukraine to a citizen of the country in an irregular situation in Spain who had an expulsion order for several convictions for crimes of robbery with force issued before that the conflict broke out.

In a sentence, to which Europa Press has had access, the Contentious-Administrative Chamber upholds the appeal filed by the Ukrainian citizen and annuls the resolution of the Government Delegation of Madrid by which his expulsion from the national territory had been agreed prohibited from entering Spain for five years.

The ruling, presented by Carlos Lesmes, details that a Madrid Contentious Court first, and then the Madrid Supreme Court Litigation Chamber, confirmed the expulsion order, considering it provided by the appellant's criminal record.

In his appeal before the Supreme Court, the Ukrainian citizen argued that his expulsion would be incompatible with the decision adopted by the Government in March to extend temporary protection to people affected by the war in Ukraine who could find refuge in Spain.

The high court now explains that the two sentences that confirmed the expulsion of the appellant were prior to February 24, 2022, the date on which the Russian invasion of Ukraine began and also prior to the agreement of the Council of Ministers of March 8, 2022. which extended the temporary protection granted by virtue of the Implementing Decision of the Council of the European Union that agreed to facilitate the indiscriminate reception of refugees from Ukraine.

The Chamber adds, in this regard, that the lower court rulings could not rule on the application of the new regulations now being examined by the Supreme Court because it was not even in force, nor on the principles that inspire it, since they focused on determining the legality of the administrative act of expulsion of the affected party.

The court notes that the Government's agreement to extend the temporary protection of Ukrainian citizens expresses the will of the Executive to accept the possibility of extending temporary protection to additional categories of displaced persons in addition to those to whom the aforementioned decision applies.

In addition, the Chamber highlights that said extension extends to Ukrainian nationals who were in an irregular situation in Spain before February 24 and who, as a consequence of the armed conflict, cannot return to Ukraine.

Thus, and within the framework of International Law, the Chamber invokes the principle of non-expulsion of foreigners to a country where their life or freedom is threatened and that must be guaranteed in the three cases of international protection: asylum, subsidiary protection and protection temporary.

For this reason, the Supreme Court understands that in the analyzed case the circumstances have changed. "What was a strict matter of immigration subject to a sovereign decision by our State has mutated into a matter of international protection with the consequences that derive from it for the legitimate interest of the appellant, an interest that continues to be the same both in the instance and in the trial. the appeal because what he intends in any case is to avoid being expelled from the national territory," the ruling details.

In short, the court concludes that by virtue of the aforementioned agreement of the Council of Ministers the appellant can benefit from the temporary protection statute and that it is currently applicable to Ukrainian nationals who are in Spain in an irregular situation prior to 24 February 2022.

The ruling also refers to the position of the State Attorney's Office, contrary to the appellant's obtaining said benefit since, in his opinion, those Ukrainians who are subject to an expulsion order cannot benefit from it.

In this context, the Chamber answers that this allegation "cannot be accepted because such an exception is not contemplated in any norm, and the personal scope of application of the norms described must be interpreted in the most favorable sense, since they have a protective purpose based on the law humanitarian and based on human rights".