International protection applicants, right to an effective remedy, and residence by labour roots: regarding supreme court ruling 414/2024, dated january 24th

Abstract

The Supreme Court in its ruling of January 24, 2024, has sparked considerable controversy by suggesting that periods of contributions by an applicant for international protection during the pendency of an appeal when the application has been denied cannot be counted towards qualifying for initial residency based on work ties. This is purportedly motivated by the impossibility of considering such periods as stays in accordance with domestic law due to the inadequate transposition of EU law into an effective asylum recourse and also not as residency under Article 9 of Directive 2013/32/EU. However, this interpretation does not seem consistent with the recent doctrine of the high court, which acknowledges the validity of an interpretation in line with EU asylum recourse through precautionary measures established in domestic law, nor in relation to the legal status of the international protection seeker or the general principles of administrative procedure, appeal procedures, and the precautionary system. In this regard, it is proposed to recognize that the legal situation of the international protection seeker in Spain is, in all respects, a legal stay of a temporary and exceptional nature fully compliant with immigration law but developed under asylum law, which is compatible with immigration procedures and is also extended unchanged during the appeals process, offering alternative solutions to the abusive use of the asylum procedure in line with effective public management and the right to good administration.