V. Legal Status

1. Residency Rights

All foreign children are legal residents while under guardianship of the state. A child is entitled to a temporary residence permit (valid for one year, renewable) nine months after he or she has been referred to protection services and in case family reunification has not been possible[96] (although Spanish law does not rule out a child's repatriation and family reunification after a temporary residence permit has been granted and if the criteria for such a decision are met[97]). Notwithstanding the entitlement, it was rare for the children we interviewed who were eligible for a temporary residence permit to actually have one. (For discussion of official resistance to the granting of temporary residence permits, see Section VIII.4, below.)

Children under guardianship are eligible for Spanish citizenship after two years of guardianship followed by one year of legal residence without interruption.[98] Although a number of children interviewed by Human Rights Watch spent more than three years under public guardianship, none of them was in possession of Spanish citizenship. The government's sub-delegate in Las Palmas confirmed with no further explanation that citizenship has never been granted to an unaccompanied child migrant.[99]

The UN Committee on the Rights of the Child (which monitors states' compliance with the Convention on the Rights of the Child) has held that "the ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution that addresses all their protection needs, takes into account the child's view and, wherever possible, leads to overcoming the situation of a child being unaccompanied or separated." Furthermore a durable solution must be sought "for all children who remain in the territory of the host State, whether on the basis of asylum, complementary forms of protection or due to other legal or factual obstacles to removal."[100]

Validity of the temporary residency permit

Staff on different islands and in different centers reported that the temporary residence permit given to a child expires upon a child's 18th birthday. In practice, this turns the young adult into an irregular migrant the day he or she has to leave the protection system. At the same time, there are not sufficient transition programs to support these young adults following release from the protection system.[101] As a result, young adults, upon leaving the child protection system are exposed to increased vulnerability and risk of exploitation and may furthermore be pushed towards illicit and illegal activity.[102] As one center staff member described the situation: "If you have a child who turns 18 you have the sad choice of either kicking the boy out into a life in the streets-or you call the Police to report an irregular migrant."[103]

Although an expired residence permit can be renewed within three months-including one that has expired when a child turned 18-an adult seeking to do so has to give proof of sufficient financial means or has to present a work offer.[104] These requirements are difficult to meet for young persons who were not enrolled in quality education programs during the time they were in state care. Thus, children who had stayed in emergency centers face an additional hurdle in meeting the requirements (deficiencies in education in emergency centers are discussed in Section VII.1, below).

One staff member working in a residential center described prevailing practice:

If permits are issued at all then the expiration date is the child's 18th birthday; he has three months to renew the permit but needs to give proof of sufficient financial means, present a work contract or a guarantor. That is almost impossible. The children are only seen as costs and not as an investment. A change of perspective is needed within institutions in charge.[105]

The Council of Europe's Committee of Ministers specifies in its guiding principles on children at risk and in care that children leaving care should be entitled to "appropriate after-care support in accordance with the aim to ensure the integration of the child in the family and society."[106]

Documentation needed to establish residency rights

As no other formal step is required to establish guardianship, the declaracin de desamparo (Section IV.3, above) is the only official document that records the date when the child is referred to protection services.[107] It thus establishes the date on the basis of which the child's entitlement to a residence permit is calculated.

In order to receive a temporary residence permit a valid identification document is required, which in most cases children do not possess.If they are unable to obtain an identification document through their diplomatic representation they can request a cdula de inscripcin (interim identification document) from the Police.[108]

Spanish law requires that a request for documentation should be made as soon as it is established that a person is undocumented. Human Rights Watch, however, found diverging practices among centers in applying for children's cdulas.[109]

While proceedings to document children in some centers are initiated as early as one or two months after the child's admission, no requests for cdulas are made at Arinaga center. Instead, all children interviewed told us that they were required to produce a national identity document instead, a practice that neither reflects legal requirements nor the best interest of the child.[110] Although Moroccan children may reportedly obtain a passport from their consulate within a few days, this is not the case for children from Senegal whose diplomatic representation takes up to 12 months. As a result, Senegalese children at Arinaga center were desperate to find ways to obtain a national identification document. Seventeen-year-old Modou M. described their efforts:

I have no passport. We save money for our passports but it is very difficult to get them in Senegal. There is a long delay. I was told if I bring my passport they would take care of my residence permit. One of the boys saved 200 and sent it to a friend in Senegal to organize his passport. But his friend just spent the money and he didn't get any passport.[111]

Delays in granting documentation and permits

More generally, the procedure to obtain either an identification document or a residence permit takes several months and is subject to delays, even though there are formal deadlines-three months from the date of application-by which time a cdula and a temporary residence permit should be issued.[112] Several staff members dealing with children's paperwork told us that the process of obtaining documentation and permits was non-transparent and that they did not know the causes for the delays. As noted above, there can apparently be delays also in the issuing of the declaracin de desamparo, which may have knock-on consequences in terms of delaying the child's entitlement to a residence permit.[113]Similarly, one staff member explained to us that he was unable to request a cdula earlier than nine months after the child's admission because authorities do not process the requests before then (in other words, they are apparently applying the same minimum period for entitlement as for a temporary residence permit).[114]

The consequence is extended waiting periods amounting to 15 months or longer. So, if a child is referred to protection services one year or so before his or her 18th birthday, although entitled to a temporary residence permit by the time he or she turns 18, it is unlikely that he or she will leave the child protection system in possession of valid papers. Ibrahim K., age 17, told us, "Yesterday, two children left Playa Honda center after turning 18 without having received their papers. Both spent one-and-a-half years in Spain."[115]

The Child Protection Directorate essentially blamed the government's sub-delegate for the delays, whereas the central government representative asserted that they issue the requested document within one month of receiving an application.[116]

Human Rights Watch observed that none of the children in emergency centers were in possession of a cdula or a residence permit and they were not aware that any of their peers had documents. At least one child interviewed qualified for a residence permit and two more children had spent eight months in the center at the time of our interview. We further received information that at least 23 children who were transferred to the Spanish mainland remained undocumented and without a cdula after they had spent seven months in emergency centers in the Canaries.

Children consistently said that they did not receive sufficient information about their entitlements to documentation, residence permit, and citizenship. They deeply mistrusted staff in charge and they had a sense of wasting their time in the child protection system. Tapha D., age 15, said, "I first believed I would get citizenship by the time I turn 18; now I was told that I will get a residence permit, which is only renewable. I believe less and less in what I will get."[117] Yussef A., age 17, told us, "We are not told the truth; especially not about papers. They [center staff] leave us without any information and without anything."[118]

Lack of accountability

Child protection authorities are mandated to guarantee documentation for children in a timely manner.[119] In practice, though, responsibility for pursuing the children's entitlements to documentation falls on staff working in centers, a responsibility for which they are poorly equipped. The Child Protection Directorate does not oversee the issuance of documentation in compliance with national legislation. One center staff member described the consequences: "In case a child is forgotten, nothing happens. He will simply remain without papers."[120]

As of February 2007, the Child Protection Directorate did not conduct any training on documentation, residence permits, and citizenship for staff working in emergency centers.[121] Although some staff members had significant experience in working with migrant children they lacked expertise on children's entitlements to documentation, permits, citizenship, asylum, or subsidiary protection. As a result, unsupervised practices are in place that violate children's legal entitlements and fail to take into consideration their best interest.

One staff member who works in residential centers summarized the situation as follows:

The biggest problem is the papers. If the cabildo pressed the Child Protection Directorate a bit, the process could be faster. Right now, the law is not being followed. In other autonomous communities lawyers take on these cases and approach the Child Protection Directorate and tell them they are not complying with the law.[122]

The Committee on the Rights of the Child recommends that "unaccompanied and separated children should be provided with their own personal identity documentation as soon as possible" and that officials working with unaccompanied children and dealing with their cases should be trained. Training specifically tailored to the needs and rights of the groups concerned is "equally important for legal representatives, guardians, interpreters and others dealing with separated and unaccompanied children."[123]

By not granting documentation and residence permits in accordance with the law and by pushing a child migrant into an irregular status upon turning 18, authorities refrain from identifying a durable solution for unaccompanied children and they undermine integration efforts designed for and undertaken by the child prior to turning 18. Furthermore, such practice opens the possibility to discriminate against certain groups of children, based on the stereotyping of children into "desirable" and "non-desirable" categories.

Gloria Gutirrez Gonzlez from the Child Protection Directorate plainly told us: "I warned all of the children. If they don't have a project by the age of 18, there will be a plane back to Rabat."[124]

Discretionary denial of residence permits

Information received by Human Rights Watch strongly indicates that the state administration uses reports about children's behavior and their history of conflict with the law to deny children temporary residence permits, which is in violation of Spanish legislation.

Spanish legislation provides that a child's participation in educational and integration programs can be taken into consideration when deciding whether to grant a residence permit, but only if the person failed to obtain a permit before the age of 18.[125] However, as several staff members described, the prevailing practice is to take reports about children's behavior generally into account when granting or denying them documentation and permits:

If a child behaves well, we request a cdula. We then wait for another five to six months to request a residence permit. We have to submit a report [about the child] to the cabildo. If the report is positive, the child might get the permit after three to six months-sometimes it takes longer.[126]

Reports on children compiled in residential centers are not intended for decision making about their immigration status; instead, they are a tool to assess the level and type of care a child requires. Spanish law prohibits personal data from being used for a purpose that is incompatible with the objectives for which it has been gathered, including for decision making that has legal implications or a serious impact, and it provides for compensation for persons negatively affected.[127]

Staff members in residential centers who compile such records include information that is not destined for an immigration decision and may be unfairly prejudicial. For example, files may contain data about negative or disruptive behavior that results from a child's displacement, including trauma from family separation or experiences while migrating, or difficulties in adjusting to abrupt cultural change and a new environment. Staff compiling these records may not readily recognize the causes of such behavior and such causes may furthermore not be adequately treated. One staff member told us that the counseling service available to their center is insufficient because the psychologist offers no individual intervention but only works with groups of children.[128]

Moreover, children may be denied residence permits for attempting to escape from abuse in residential centers where they lack effective mechanisms to protect themselves. An escape from a residential center is considered a very serious violation of center rules according to Canary Islands legislation and may therefore be a factor taken into consideration for the granting of residence permits.[129] We spoke to a number of children whose primary reason to escape from a center was to protect themselves from abuse or from a transfer they considered punitive or discriminatory. If authorities take such behavior into consideration to grant or refuse children their entitlements to documentation and residence permits, they essentially punish these children twice.

Yunus S. and Assane F. both age 17, provided accounts illustrating that children's behavior, including escapes, would be used as a basis to deny them residence permits:

Five boys escaped to go to Santa Cruz at the end of December. The police brought them back. The director was angry and withheld their pocket money. The boys were told that they won't get their papers. Both the director and the educators said so. When I asked about my papers I was told that I won't get anything before I turn 18.[130]

Every day staff prepare a report. They say it will be presented to the president of Spain [sic.]-if we don't behave well, we won't get our papers.[131]

Human Rights Watch also received information that the state administration uses reports about children's history of conflict with the law to deny residence permits. By law, the official records of juvenile offenders are not accessible for such purposes. In contrast to adult migrants, who are required to provide a copy of their criminal records when applying for a residence permit, the records of juvenile offenders (that is, below age 18) are protected by a special registry that can only be accessed by juvenile judges and the Prosecutor's Office in restricted circumstances.[132] By protecting the records of juvenile offenders, Spain adheres to international standards stipulating that "records of juvenile offenders shall be kept strictly confidential and closed to third parties" and that the principal objective of juvenile justice should be to (re)socialise and (re)integrate juvenile offenders.[133]

Although the official records are protected by law, the state administration gains access to the same information compiled in reports of residential centers. These reports, assembled by center staff, would include information on whether a child has come into conflict with the law, and center staff is requested to submit them when applying for a child's residence permit. One center staff member explained to us:

In practice, [a child's] behavior is reported to authorities. If [a child] commits a crime [he] doesn't get a residence permit. But in Spain such records should be cancelled. It is an illegal practice. When a child turns 18 all files [about a child] are sent to the cabildo. When an adult applies [for a residence permit] his record as a child is taken into account.[134]

The government's sub-delegate in Las Palmas, who takes decisions on requests for residence permits, told Human Rights Watch that criminal behavior of children is indeed taken into account in the granting or refusal of a residence permit, including if the person applies for a permit after turning 18.[135]

The Convention on the Rights of the Child provides that children shall not be subject to arbitrary or unlawful interference with their privacy, family, home or correspondence.[136] The Committee on the Rights of the Child further specifies that "care must be taken that information sought and legitimately shared for one purpose is not inappropriately used for that of another."[137]

2. Work Permit

Children from age 16 who are in possession of valid residence and work permits are entitled to work.[138] The granting of work permits to foreigners is generally subject to considerations of the labor market for Spanish citizens. Foreign children under guardianship and in possession of a residence permit are exempted from such considerations if the guardian considers that the professional activity contributes to the child's social integration. The need for a work permit can be waived altogether for children under guardianship, upon request by the guardian.[139] Thus, Spanish legislation grants a range of exceptions for migrant children to access the regular labor market. Authorities in charge, however, fail to apply the law in the child's best interest and disregard that children in several instances could greatly benefit from the application of these provisions.

Despite children's desire to enter the regular labor market, none of the children Human Rights Watch had spoken to was in possession of a work permit or was participating in a legal, gainful activity. On the contrary, two children interviewed were not able to participate in the practical segment of their vocational training due to the lack of permits (see below, Section VII.1), and one 17-year-old, Shai L., reported that he worked for three months in a vegetable plantation but without the necessary work permit.[140]

The length of procedure to obtain a work permit may put children's prospect of securing a job at risk. Seventeen-year-old Ibrahim K. told us that delay in securing permits was a risk to a job offer as a waiter:

I passed the interview already and the hotel is happy to hire me. It will take three to four months until I will get my papers and the hotel needs to prepare all the requests. But the job market is that employers often need somebody immediately and cannot wait for three or four months for the papers to be issued.[141]

3. Access to Asylum

Spain is a state party to the 1951 Refugee Convention and its 1967 Protocol and grants all foreigners the right to ask for asylum regardless of their age. The granting of refugee status is the responsibility of the central government.[142] There are no official data on the number of asylum requests by unaccompanied children since 2001, and Human Rights Watch was told that there are very few claims by unaccompanied children-"fewer than five or ten per year, probably even none," according to Julin Prieto Hergueta, the deputy director-general of the Ministry of the Interior's asylum office.[143]

Human Rights Watch did not attempt to conclude whether children interviewed have a valid asylum claim or qualify for subsidiary forms of protection. We discuss here instead the procedures to which unaccompanied children are entitled to access either asylum or subsidiary protection.

The government's sub-delegate in Tenerife told Human Rights Watch that children receive information on their right to seek asylum from the Police as well as in residential centers.[144] However, by their accounts none of the children Human Rights Watch interviewed received information at any stage about their right to claim asylum or about related procedures, either from the Police or from residential center staff.In fact, none of the residential center staff interviewed by Human Rights Watch demonstrated a basic understanding of asylum and subsidiary protection entitlements.

Furthermore, we found that in a vast majority of cases, children were not interviewed about the circumstances that led them to come to Spain, neither upon arrival nor in residential centers. A large number of children reported that the interview with Human Rights Watch was their first in-depth interview since their arrival in Spain. As a consequence, possible grounds for refugee status or other protection merits remain undetected. Several children interviewed originated from conflict and post-conflict areas, thus the availability of information on their right to claim asylum or other subsidiary forms of protection remains vital. Sei A., now 18 years old and who fled from the civil war in Sierra Leone, received no information on his right to ask for asylum following his arrival in the Canary Islands. After he was transferred to Madrid staff members with an NGO that runs residential centers for unaccompanied children recognized his possible grounds for refugee status and assisted him in making an asylum request.[145]

Judging from our interviews, authorities routinely treat these children as economic migrants without verifying whether they may have grounds for making an asylum claim or for seeking other forms of international protection, including a claim that may result from child-specific forms of persecution.[146] "Most unaccompanied children are Moroccans, and these are not refugees. Those children are sent by their parents to migrate. Children are sent by their families or even by religious authorities in Senegal," Prieto Hergueta told Human Rights Watch.[147]

The responsibility for assessing, granting, or refusing international protection lies with the central government. States are furthermore obliged to provide access to the asylum procedure and other forms of protection by providing information on these rights.[148] After an unaccompanied child has been identified "then the next course of action should be to establish whether the child is indeed seeking asylum in the country," according to the Office of the United Nations High Commissioner for Refugees (UNHCR).[149] In line with international law and standards, the assessment of an unaccompanied child's protection grounds has to be made by authorities in charge, on an individual basis, in an age and gender-sensitive manner, with an interpreter, competent representation by a guardian and legal representative, and immediately following a child's arrival.[150] Although the responsibility to detect protection grounds and to inform children about their rights to seek asylum lies with competent state authorities, ensuring that the children's rights are respected could be better served if, in addition, staff members in residential centers are sensitized and trained on asylum procedures and grounds for international protection given that they become familiar with a child's background and social history through their daily work.

The Spanish Asylum Office (Subdireccin General de Asilo) confirmed in a meeting with Human Rights Watch that unaccompanied children may not necessarily be provided with information on their right to seek asylum. UNHCR submitted a proposal in 2006 to set up an information system for unaccompanied children, which was still under consideration by the Asylum Office as of May 2007.[151]

Until mid-2005 some unaccompanied children were able to receive information on their right to seek asylum as well as legal assistance from the NGO CEAR, which managed several residential centers. The organization still has several offices in the Canaries, but it had to suspend its program for unaccompanied children after authorities cancelled its management contract for residential centers.[152] The organization no longer actively provides outreach on the right to seek asylum for unaccompanied children in care but facilitates these children's access to asylum procedures upon referral. For instance, the organization immediately assisted an unaccompanied child in filing an asylum application after Human Rights Watch referred the child's case to CEAR staff.

In practice, an unaccompanied child who makes an asylum claim is at a disadvantage in securing a residence permit, as compared with unaccompanied migrant children in general.Unlike other unaccompanied migrant children, children in the asylum process in practice do not automatically qualify for a temporary residence permit after nine months, even if their request for asylum is rejected after the nine-month period has run. Instead, the nine-month period only starts to be counted after the rejection of the child's asylum request. Because a refugee status determination generally takes well over one year, those who make asylum claims are often very close to or have passed their 18th birthday by the time their request is adjudicated, meaning that they have lost the opportunity to qualify for a temporary residence permit and as such, an important opportunity to regularize their status in the longer term.[153] Not allowing child asylum applicants to apply for residence permits on equal terms with other unaccompanied children serves no legitimate purpose and may have the effect of deterring children from submitting asylum claims.

Article 22 of the Convention on the Rights of the Child obliges states parties to ensure that a child who seeks asylum or is considered a refugee shall "receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights" set forth in international law.[154] The UN Committee on the Rights of the Child specifies that this obligation entails, "inter alia, the responsibility to set up a functioning asylum system" and "to build capacities necessary to realize this treatment in accordance with applicable rights" so that "asylum-seeking children, including those who are unaccompanied or separated, shall enjoy access to asylum procedures and other complementary mechanisms providing international protection, irrespective of their age."[155]

The committee also holds that "the best interest of the child must be a guiding principle for determining the priority of protection needs." An initial assessment process therefore should entail an "assessment of particular vulnerabilities, including health, physical, psychosocial, material and other protection needs, including those deriving from domestic violence, trafficking or trauma." The initial assessment process should furthermore include all information "to determine the potential existence of international protection needs."[156]

In line with the UNHCR guidelines, the Committee on the Rights of the Child also calls for the presence of a legal representative in asylum procedures, in addition to the appointed guardian: "In cases children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation."[157]