We contact you to express our concern over reports about the upcoming conclusion of a bilateral readmission agreement between Spain and Morocco for unaccompanied children. According to the Ministry of Foreign Affairs, the agreement is in the process of being finalized, and will be based on the 2003 memorandum of understanding between Morocco and Spain on the assisted repatriation of unaccompanied children. Human Rights Watch believes that key provisions of the 2003 memorandum do not comply with Spain’s obligations under international human rights instruments, and should not be replicated in any future bilateral agreements.
Of principal concern are points two and three of the 2003 memorandum. Point two foresees that once the identity and nationality of the child have been ascertained, repatriations will be carried out by handing the child over to border officials of the country of origin. Yet Human Rights Watch’s research on unaccompanied children in Ceuta and Melilla exposed serious abuses suffered by children at the hands of border and security officials in the course of their repatriation. Additional reports by non-governmental organizations, the Ombudsman office, the Committee on the Rights of the Child, and the UN Special Rapporteur on the rights of migrants raise equal concerns over the continued practice and abuses in connection with such repatriation procedures. These findings provide strong evidence that the repatriation of children by handing them over to Moroccan border officials and police puts them at heightened risk of abuse and subsequent detention.
Furthermore, point three of the memorandum foresees that authorities of the destination country may immediately return an unaccompanied child to the authorities of the country of origin if the child is apprehended the moment of crossing the border.
If enforced, this provision would constitute summary expulsion in apparent violation of Spain’s legal obligations under the 1951
Convention relating to the Status of Refugees and the principle of non-refoulement. The provision further undermines applicable guarantees enshrined in the Convention on the Rights of the Child as well as Spanish legislation, and it is inconsistent with the UN High Commissioner for Refugees’ guidelines on unaccompanied child asylum seekers, which calls upon states not to refuse access of such children to their territory.
Spanish law requires that the return of unaccompanied children to the country of origin must follow a careful evaluation. Repatriation of the child is not the only objective but one possible solution that must be weighed against other factors, such as the child’s life, physical and psychological integrity, and respect for the child’s fundamental rights. Repatriation can only be carried out if the child’s integrity is not at risk. Most importantly, under Spanish law the best interest of the child trumps any other consideration. As a consequence, the consultation of the child, a full evaluation of all factors for and against repatriation, family tracing or the identification of adequate protection services, a risk assessment and the consultation of the Prosecutor’s office must be part of any repatriation proceeding.
We are aware of several court decisions that halted repatriations of unaccompanied children underway. A recent decision by a Madrid administrative court stopped a repatriation procedure on the grounds that it failed to respect key constitutional guarantees, the best interest of the child, and the child’s right to be heard, as spelled out in the national child protection act and the Convention on the Rights of the Child.
Although the 2003 memorandum on the repatriation of unaccompanied children includes a reference to the Convention on the Rights of the Child and the primacy of the child’s best interest, the procedures spelled out in the memorandum are inconsistent with these and make the references to international and national obligations appear meaningless.
Mr. President, we urge you to include vital safeguards in compliance with Spanish and international law into the readmission agreement to ensure that the rights of migrant and asylum-seeking children are upheld at every stage of their migration cycle. In particular, we call on you to ensure that this and any future readmission agreements incorporate at the very least the following provisions:
- Unaccompanied children attempting to enter the country must not be summarily expelled;
- Asylum-seeking children must never be denied entry at the border; they must enjoy access to asylum irrespective of their age and must be given information on their right to seek asylum in a way that is appropriate for their age and maturity;
- Repatriation decisions must be made on an individual basis, respect procedural safeguards and guarantee the child’s access to qualified legal representation;
- Repatriation decisions must comply with the best interest of the child and take into consideration the child’s views;
- Children must not be detained pending their repatriation;
- Unaccompanied children must not be repatriated if no suitable care-taker or protection service has been identified and if no contact between them and the child has been established;
- The return of a child to protection services or care-takers must be preceded by an evaluation of the services’ or care-taker’s ability and agreement to provide the required care and protection;
- Unaccompanied children must not be handed over to security or border officials without the presence of care-takers or representatives from protection services;
- Counseling shall be provided to all children who are to be returned;
- The creation of a committee, consisting of government representatives, independent human rights experts, and the UN High Commissioner for Refugees, to monitor the operation of the agreement in both states and to publicly report its findings on a periodic basis, including whether returns under it respect the best interests of the children involved.
We request you to kindly keep us updated on further developments in the final negotiations of the agreement and to share with us a copy of the latest draft document as soon as it becomes available. We look forward to having a dialogue with the office in charge and welcome a response at your earliest convenience.
Children’s Rights Division