On the 21st of December 2022, the Supreme Court ruled its judgment no. 516/2022. The case concerned a Ukrainian applicant for international protection allegedly leaving her country because of the war and her fear to be drafted for military service. Her application was refused. The First Instance Court upheld this decision declaring that military service generally does not result in granting asylum and that it is unlikely that she will be drafted.
The Court first declared the objective interest to form jurisprudence on how the Spanish Order PCM/170/2022 impacts the situation of those seeking asylum. This Order extends the temporary protection, as mentioned under Council Implementing Decision 2022/382, to persons affected by the war against Ukraine. The Supreme Court declares that this Order is applicable to Ukrainian nationals who were irregularly in Spain before the 24th of February 2022 and who cannot return to Ukraine because of the war. Hence, the applicant benefits from the temporary protection regime including non-refoulement.
The Government however stated that the applicant failed to apply for temporary protection. In that regard, the Supreme Court declared that exceptional nature of the situation causes that Ukrainians residing in Spain can immediately avail themselves of the principle of non-refoulement without the need to submit an application. It is sufficient for not being expelled that their nationality is acknowledged, and that the applicant expressed her wish to enjoy protection. The Supreme Court thus declared that the appealed decision is not correct because the applicant is entitled on temporary protection.
Based on an unofficial translation from within the EWLU team.