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June 19, 2002

Manuel Martín Mederos, Chief of Staff
Government Delegation in the Canary Islands
Plaza de la Feria, 24 35071
Las Palmas de Gran Canaria

Dear Mr. Mederos:

Thank you for the letter of April 2, 2002 detailing your concerns about the February 2002 Human Rights Watch report, "The Other Face of the Canary Islands: Rights Violations Against Migrants and Asylum Seekers," in which we addressed detention conditions and procedural problems for migrants and asylum seekers in Fuerteventura and Lanzarote. We take seriously your concerns regarding our report and are eager to address them. We regret that these concerns were not raised during meetings with government officials we had in November 2001-before publication of our report-and March 2002 so that we could have addressed them at that time. You identify five specific areas of concern in your letter: research methodology, knowledge of Spanish law, procedural guarantees with respect to appeals, allegations of fundamental rights violations, and access to detention centers. Each issue is addressed in full below.

Your critique of the report first alleges that there were problems with the "methodology of the investigation," noting that the research was based on sketchy interviews and newspaper articles, and failed to include interviews with responsible government authorities. Our research included individual, in-depth interviews with more than thirty migrants who recently had been detained in either the Fuerteventura or Lanzarote facilities upon their arrival to the Canary Islands. In addition, we met with doctors and Red Cross volunteers and staff who worked in the detention centers and were familiar with the conditions in both facilities. We also interviewed a number of lawyers working for the Colegio de Abogados and for non-governmental organizations-all of whom had significant experience working with migrants either before, during, or after their detention in Fuerteventura and Lanzarote.

Your concern that we interviewed "no competent personnel working in the area of foreigners" also surprises us given the fact, noted in the report, that we requested access to the detention facilities and interviews with government authorities present in the Canary Islands, including with your office and with the police. Your office and many other government officials, with the exception of the Minister of Labor and Social Affairs, denied our requests for meetings. After the conclusion of our research in the Canary Islands, however, we interviewed responsible government officials within the Ministry of Interior based in Madrid. In particular, we met with Carlos Guervós, Deputy Director of Immigration, Ministry of Interior; and Manuel Prieto, Head of Foreigners and Documentation Department, Spanish National Police, Ministry of Interior.

The assertion in your letter that the sources we used were "limited" is perplexing, as we managed to poll not only migrants themselves, but medical, legal, and humanitarian workers with direct knowledge of the conditions and procedural rights abuses suffered by migrants in the Canaries facilities. Moreover, we would certainly consider the government officials with whom we met competent personnel working in the area of foreigners. Our research is both comprehensive and objective as it sought to obtain and reflect the perspectives of a wide variety of governmental and non-governmental actors as well as migrants who had been detained in the very facilities under scrutiny.

You also allege that our report reflects a misunderstanding of Spanish law and, as a consequence, recommends government action that is not appropriate. In particular, you point out that our recommendation that judges receive training or guidance on the foreigners' law "makes no sense in a system in which judges constitute a specialized professional group . . . and have an obligation to know the law." Given that the law and its implementing regulations are relatively new and that the majority of Spanish judges are not specifically trained in immigration matters, it would seem critical to the fair and equitable application of the law that judges applying this law receive some form of guidance or training. We do not believe that objective guidance intended to ensure fair application of the law, including, for example, that judges understand the requirement of judicial oversight and their integral role in the immigration system, would interfere with the independence and integrity of the judicial system. On the contrary, it could reduce contradictory decisions and incorrect application of Spanish immigration law. The notion that judges should receive training in specialized areas of the law and in the proper implementation of new legislation is supported by the operation of judicial training programs in many countries, including the Judicial School of the General Council of the Judiciary in Spain.

With regard to the issue of whether an asylum application prevents the continuation of expulsion proceedings, we are concerned that your office has misunderstood the report. Indeed, our report acknowledges that, as you assert, Spanish asylum law "establishes that the asylum seeker cannot be expelled until his petition has been denied or resolved." Our concern is not with the law, but with its interpretation by some lawyers representing asylum seekers in the Canary Islands. Our interviews indicated that some lawyers erroneously believed that once expulsion proceedings had begun, a subsequent asylum claim had no suspensive effect pending a decision on an asylum claim. Consequently, these lawyers mistakenly advise their clients to forego asylum claims. As with many of the procedural rights concerns we address, this particular point of concern highlights the conflict between the law and its application. It is often the misapplication of the law that is most troublesome in the case of migrants' and asylum seekers' treatment in the Canary Islands.

Regarding your third area of concern, you suggest that our recommendation that migrants be given "the opportunity to challenge the lawfulness both of their detention and deportation order in a judicial proceeding or before another competent authority" is unnecessary. You assert that there are already safeguards in place for appeals and that our analysis is ill informed because expulsions require an administrative appeal, while "a cautionary measure of detention" is appealed before the judge who issued the detention order. You are correct that the law provides for an opportunity to challenge the lawfulness of detention and deportation. Our research indicated, however, that in practice migrants and asylum seekers have little or no effective opportunity to avail themselves of the right to lodge such challenges, whether before an administrative or judicial authority. Migrants and asylum seekers are denied this opportunity through a combination of factors, including the poor quality of legal representation; the scarce availability and neutrality of translation and interpretation services; and inadequate information about their legal rights.

As you note in your letter, the Deputy Ombudswoman has highlighted her concerns about the collective nature of legal assistance available to migrants arriving in the Canary Islands, a situation that is currently under investigation. What you term an "irregularity in legal assistance" is indeed a violation of fundamental rights and has a profound effect on the ability of migrants and asylum seekers to exercise the range of rights guaranteed to them under the law. The right to be informed of one's rights in a language that one understands and to be counseled in a manner that affords a detainee the effective opportunity to challenge her or his detention is a fundamental human right enshrined both in international and regional law.

In the same vein, your letter suggest that admitted deficiencies in the detention facilities do not amount to violations of fundamental rights, pointing to the absence of any reference to fundamental rights in the Deputy Ombudswoman's assessment of detention conditions. You also take issue with our concern that non-governmental organizations are hindered in their ability to monitor or otherwise access the facilities to provide migrants and asylum seekers necessary legal and social services.

The poor conditions in the detention centers-well-documented restrictions on communication; lack of meaningful access to lawyers, translators and interpreters, and information regarding legal rights; and inadequate sanitary conditions in combination with inadequate access to health care-clearly violate Spain's obligations under international, regional, and domestic law. We were disappointed to hear in meetings with the Ministry of Interior that there were no immediate plans to improve the current conditions, even though these facilities are expected to continue to serve as temporary detention centers when it is impossible to accommodate all arriving migrants in more appropriate detention facilities.

Finally, with regard to the issue of monitoring the facilities, we reiterate our recommendation that non-governmental and humanitarian organizations and lawyers should have access to the detention centers. Our research indicated that the monitoring mechanisms you note in your letter-for example, law enforcement and judicial oversight, and action by the attorney general-are not yet functioning effectively. They have consistently failed to acknowledge the need for clear guidelines-in conformity with international and regional standards-on conditions of detention. They have also failed to implement in Fuerteventura even temporary solutions the range of rights violations documented in our report.

As for the lawyers who have access to the facilities, we received numerous reports that they do not regularly visit the facilities and that most migrants and asylum seekers remain ignorant of their rights under Spanish law. The only organization with official access to the facilities is the Spanish Red Cross, which is a neutral humanitarian organization that cannot speak out about rights violations suffered by migrants while maintaining their neutral service mandate.

Thus, currently existing monitoring mechanisms have not ensured the protection of migrants' and asylum seekers' fundamental rights. Accordingly, we recommended the creation of a neutral monitoring body capable of providing an independent and objective assessment of the conditions prevailing therein. We also recommend permitting certain organizations and lawyers to visit the facilities in order to ensure that migrants and asylum seekers receive all essential services guaranteed them by human rights law.

We appreciate your bringing the aforementioned concerns to our attention and hope our response clarifies any misconceptions about our reporting. Furthermore, we welcome your stated commitment to maintaining transparent and rigorous efforts to ensure exemplary treatment of migrants and asylum seekers arriving to the Canary Islands, and hope that our report will help to inform this process. We look forward to a continuing dialogue with the Spanish government regarding immigration and asylum issues.

Best Regards,

Elizabeth Andersen
Executive Director
Europe and Central Asia Division

cc: Román Rodríguez, President of the Canary Islands Government
Antonio López Ojeda, Government Delegate, Government Delegation in the Canary Islands
Marcial Morales Martín, Minister of Labor and Social Affairs for the regional government of the Canary Islands
Mariano Rajoy Brey, Minister of the Interior
Enrique Fernández-Miranda, Government Delegate for Foreigners and Immigration Carlos Guervós, Deputy Director of Immigration
Emilio Baos Arrabal, Head of Foreigners and Documentation Department, National Police
Angel Acebes, Minister of Justice

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