Communication concerning the right to work of a foreign national declared inadmissible (Maïmouna Sankhé v. Spain)

In 2000, Maïmouna Sankhé, a Senegalese national, travelled to Spain under a student visa to undertake postgraduate studies.  She later married S.A.A., a Nigerian citizen with permanent legal residency in Spain.  They have two children together.

In January 2009, the Government Delegate Office in Madrid refused to renew Sankhé’s temporary residence and work permit because she had not certified that she had been employed for more than six months in the preceding year, as required by law.  The Office informed Sankhé that she had three months to apply for a new residence permit, without permission to work, or any type of residence permit on exceptional grounds. 

Administrative appeal

In February 2009, Sankhé filed an administrative appeal with the Ministry of Labour and Immigration.  She claimed that she met all the permit requirements, even though she could not certify that she had been employed for more than six months in the preceding year.  She further claimed that the permit failed to take into account “the fact that her ability to work had been subject to instances of force majeure, arbitrarily disregarded her work and family situation, and interfered with the right and duty of parents to protect and care for their minor children.”  Lastly, she maintained that the decision not to renew her permit did not take into account the principle of equality enshrined in the State Party’s Civil Code. 

The Ministry dismissed the appeal in March 2010 because Sankhé had not certified that she had been employed for the required period of time or fell into any of the other eligibility categories recognised under domestic law.

Judicial review

In May 2009, Sankhé submitted an application to the Administrative Court for judicial review of the original refusal to renew her temporary residence and work permit.  Sankhé claimed a violation of right to equality in article 14 of the Spanish Constitution, arguing that she, as a foreign national with dependent minor children, had been treated differently to similarly situated Spanish citizens.   

In August 2009, the Prosecutor of the High Court of Justice of the Community of Madrid intervened in the proceedings in support of Sankhé’s equality claim.  The Prosecutor stated that the comparison made by Sankhé “was valid and that the right to equality was based on the fact that both [Spanish nationals and foreign nationals] were guardians of Spanish citizens who were minors and that both therefore should enjoy the same rights.”  The Prosecutor concluded that the Administrative Court should consider the application because it revealed a violation of the right to equality guaranteed by article 14 of the Spanish Constitution. 

In September 2009, Administrative Court No 22 dismissed Sankhé’s application.  It determined that Sankhé’s legal status, as a foreign national, was not identical to that of Spanish citizens and that foreign nationals did not enjoy the same rights as Spanish citizens.  Sankhé appealed the decision.

In July 2010, the High Court of Justice of Madrid dismissed the appeal and ordered Sankhé to pay court costs.  In doing so, it rejected the equality claim, explaining that Spanish law provides “for differential treatment of citizens and foreign nationals in relation to the right to work (a difference that is constitutionally legitimate…), which precludes a demand of equal treatment in that respect between Spanish nationals and foreigners.”  The Court also noted that Sankhé had not been absolutely deprived of the possibility of working in the State Party, as there were other avenues available to her to obtain the necessary authorisation to work.

Amparo application

In September 2010, Sankhé filed an application for amparo with the Constitutional Court, alleging violations of her rights to effective judicial protection and to equality before the law.  In addition, she requested that either she be allowed to represent herself in the proceedings, as she claimed to be unable to afford legal representation and was ineligible for court-appointed counsel, or that the Court appoint a procurador and lawyer to her case in the interests of justice. 

The Court requested the Madrid Bar Association to designate a procurador or lawyer, but both the Association and the Central Committee on Free Legal Assistance denied the request because Sankhé did not satisfy their means test based on her household income.     

In December 2010, Sankhé informed the Constitutional Court of the decision to deny her representation and requested recognition of her right to legal assistance.  The Court informed Sankhé that she must appear before it within 10 days, represented by counsel, failing which the case would be dismissed.   

In late December 2010, Sankhé submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) (see below for further information).

In the meantime, in January 2011, the Constitutional Court issued a new ruling that temporarily suspended the amparo proceedings until such time as Sankhé’s appeal against the denial of free legal assistance was resolved.  In July 2012, Administrative Court No. 22 of Madrid confirmed the Central Committee’s decision to deny Sankhé’s request for free legal assistance because she failed the means test.  In January 2013, the Constitutional Court dismissed Sankhé’s case based on her failure to appear before the Court, as instructed.

Communication to the CEDAW Committee

In her communication to CEDAW Committee, Sankhé claimed that the State Party had violated articles 1, 2, 3, 6, 9(1), 10(a), 11(1)(a), 11(1)(d), 11(2)(c), 15(1), 15(2), 16(1)(c), 16(1)(d) and 16(1)(f) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). 

Sankhé claimed that, as a foreign national, she was treated differently when applying for a work permit than a similarly situated Spanish national would have been treated, contrary to the right to equal treatment.  She further claimed that the decision to deny her a work permit was unlawful and arbitrary, as she met the relevant requirements to obtain such a permit (i.e., she is a spouse of a foreign national who had a permanent residence and work permit and a guardian of a minor who is a Spanish national).  In addition, Sankhé claimed that the decision jeopardised her family rights, the rights of her children and her ability to perform her equal duties as a parent, contrary to the State Party’s Civil Code and CEDAW’s preamble.  Lastly, Sankhé claimed that she had been discriminated against because she cannot afford legal assistance to pursue her claim and is not entitled to free legal assistance.   

In February 2011, acting in accordance with article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol), the CEDAW Committee requested the State Party adopt interim measures to prevent irreparable harm to Sankhé.  Specifically, it requested that the State Party refrain from deporting her to Senegal while it considered her communication.  

State Party’s observations on admissibility

The State Party challenged the admissibility of the communication on several grounds.

Failure to exhaust domestic remedies (art 4(1))

The State Party claimed that the communication should be declared inadmissible under article 4(1) of the Optional Protocol because Sankhé had not exhausted domestic remedies, specifically the amparo proceeding before the Constitutional Court.  According to the State Party, the Constitutional Court had not yet ruled on the merits on Sankhé’s case, but had simply suspended proceedings until such time as her appeal against the Central Committee’s decision to deny her free legal assistance had been heard and it had been informed of the final appeal outcome.

Failure to substantiate claim (art 4(2)(c))

The State Party further claimed that the communication should be declared inadmissible under article 4(2)(c) of the Optional Protocol.  It explained that Sankhé had failed to “provide sufficient justification or grounds for her complaint” to the CEDAW Committee and the reasons underpinning her claim were “entirely general in nature.” 

Abuse of the right to submit a communication (art 4(2)(d)) 

According to the CEDAW Committee’s summary of the communication, the State Party claimed that the communication was an abuse of the right to submit a communication.  Specifically, it claimed that the communication did not contain information about a specific violation of CEDAW, but was, rather, “an abstract questioning of the legal system as a whole.”  However, it is not clear whether or not the State Party specifically submitted that the communication should be declared inadmissible under article 4(2)(d) of the Optional Protocol.   

[NB: The State Party also made submissions on the merits of the communication.  However, as the Committee ultimately declared the communication inadmissible, this summary does not address those submissions.]

CEDAW Committee’s decision on admissibility

The CEDAW Committee determined that Sankhé had failed to exhaust domestic remedies (i.e., the amparo proceedings) and subsequently declared the communication inadmissible, in accordance with article 4(1) of the Optional Protocol.  

In doing so, the CEDAW Committee noted that Sankhé had not explained why she had failed to appear before the Constitutional Court within 10 days, as instructed by the Court.  It indicated that it had taken note of Sankhé’s claim of financial difficulties and her unsuccessful attempts to obtain free legal assistance in order to appear before the Court.  However, the CEDAW Committee noted that Sankhé’s claim of financial difficulties was “very general in nature” and she had failed to demonstrate through the provision of specific information that she was unable to afford to engage a lawyer or obtain affordable legal representation by other means. 

Communication No. 29/2011, UN Doc. CEDAW/C/56/D/29/2011 (2013)

Decision

 

 

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