II. CONTEXT

After a period of decline, migration to the European Union sharply increased beginning in 1998.⁵ Much of this migration has been to-and through-Spain, where the total foreign population has increased an average of 14 percent per year since 1998.⁶ Accompanying this increase has been a disturbing rise in the number of children who travel to Spain on their own.

Conservative estimates suggest that at least 1,500 unaccompanied migrant children are present in Spain at any given time.⁷ True numbers are likely to be much higher.⁸ The vast majority are Moroccan; children typically range in age from twelve through seventeen, although some younger children also cross into Spain on their own.⁹
Many of these children enter Spanish territory by crossing the land border between Morocco and the cities of Ceuta and Melilla. Located on the Mediterranean coast, these cities have been under Spanish control since the sixteenth century; they are the subject of an ongoing dispute with Morocco, which considers them occupied territories. Both are duty-free ports with significant military presences and economies largely dependent on fishing, tourism, trade with Morocco, illicit drug trafficking, and profits gleaned from the smuggling of undocumented migrants into Spanish territory. Ceuta is the larger of the two cities, with an area of approximately twenty square kilometers.¹⁰

Spanish authorities and human rights activists in these cities estimate that each has a permanent population of approximately 150 unaccompanied migrant children, who are joined by hundreds more during the peak season for crossing to the mainland. The total population of each city is approximately 70,000. "We have a volume of kids on the scale of Barcelona or Madrid in a smaller city," said Melilla's fiscal for minors. "During the September holidays we are flooded."¹¹

Spanish law provides for the care of these children on the same basis as Spanish nationals. The law includes provisions for the care, legal guardianship, and residency of abandoned children.¹²

The majority of the unaccompanied migrant children we spoke with did not come to Ceuta or Melilla intending to stay there but rather saw the cities as starting points for travel to mainland Spain. Even after the border controls at Ceuta and Melilla were progressively tightened starting in 1995, these crossing points were seen as easier to penetrate than other points of entry. `Atta A., sixteen, from Salé near Rabat, crossed into Ceuta by sea in late August or early September 2001. He told us, "I came to Ceuta to go to Spain. [Crossing from] Tangier is much more dangerous than Ceuta or Melilla."¹³ As crossing has become more difficult, more children find themselves staying in Ceuta and Melilla. Deprived of appropriate care and protection, some children make their lives on the street, where they are vulnerable to drug addictions and health problems that sap their strength and make it difficult for them to plan beyond the immediate goal of daily survival. Others, particularly younger children, may stay behind because they are unable to make the dangerous trip alone.

The Reaction in Ceuta and Melilla
Government officials in Ceuta and Melilla have promoted the summary expulsion of unaccompanied migrant children as a solution to the growing number of migrant children present in the two cities. Such proposals enjoy wide public support. For the most part, the public associates unaccompanied migrant children, particularly those living on the streets, with a reported increase in the crime rate. In both cities, members of the public have accused unaccompanied children of robbing businesses in the city center, and some of those who live near residential centers have protested the decision to house migrant children in their neighborhoods.¹⁴

In November 2000, a group of parents protested when Ceuta's Department of Social Welfare enrolled thirty unaccompanied children from Morocco in a public school. In response, Spain's minister of education, Pilar del Castillo, announced that the children would receive schooling and that "the schools are everybody's, they are public, and they are not the personal property of any parent."¹⁵ The Ceutan authorities then arranged to have the children take classes apart from the rest of the students and during a different time of day, according to news reports.¹⁶

Authorities in both cities periodically discuss proposals that would result in the creation of centers in Morocco for unaccompanied migrant children expelled from Spain. For example, Ceuta signed an agreement in 1999 with the Moroccan organization Bayti to open a residential center in the nearby city of Tétouan.¹⁷ The agreement was never implemented.

Melillan authorities have regularly expelled unaccompanied migrant children to Morocco, returning children at least seventy times between July 2001 and February 2002, according to the nongovernmental organization Prodein. Although authorities characterize these expulsions as "family reunification" measures, expelled children are rarely returned to their families or placed with Moroccan social service agencies, as Spanish law requires in such cases.¹⁸ Melilla's Department of Social Welfare reported in January 2002 that 72.2 percent of what it termed "repatriations and family reunifications" had failed, with the children returning to Melilla. In 2001, according to official statistics, the city conducted thirty-six "family reunifications"; twenty-six of those children had returned to Melilla by the end of the year.¹⁹ According to Prodein, all but one of the children it considers to have been expelled between July 2001 and February 2002 has returned to Melilla.²⁰

In June 2001, the government delegate in Ceuta suggested that authorities in the city would begin summary expulsions of unaccompanied children within the next several months.²¹ In August 2001, Mohamed Chaib, the head of Ceuta's Department of Social Welfare, called for the repatriation of those unaccompanied children who, he said, did not want to live in the San Antonio Center.²² Neither of these proposals appeared to have been implemented at the time of our visit to the city in November 2001.

Most recently, in January 2002, authorities in Melilla backed a proposal that would allow the city to expel legal migrant families whose children commit acts of delinquency.²³ Arturo Esteban, delegate of the government in Melilla, stated that it was a "drastic" measure but one that he did not consider "inhumane or unconstitutional."²⁴ Juan José Imbroda, the president of Melilla, and Enrique Fernández-Miranda, secretary of state for immigration, announced their support for the proposal, although Fernández-Miranda said that he would send the proposal to the ombudsman's office for review.²⁵

But lawyers for the city stated that such expulsions would "lack any legal basis," pointing out that the Foreigner's Law does not authorize loss of residence for one whose child has committed a crime. "Neither does the Children's Criminal Code [Ley Penal del Menor] permit any criminal responsibility on the part of parents or guardians, merely making them civilly responsible for the acts their children may commit. In addition-lawyers for the Executive stated-the Penal Code, `as with the legislation of all democratic countries, does not permit this type of collective punishment' . . . ."²⁶ The Ombudsman also expressed concerns about the proposal.²⁷ In February, the Ombudsman announced that the Ministry of the Interior had agreed that authorities in Melilla did not have the legal authority to expel families whose children committed crimes.²⁸

The Pressures on Children to Migrate
Children in Morocco are exposed to a variety of factors that encourage migration. Many unaccompanied migrant children we interviewed told us that they saw no future for themselves in Morocco, a stark response to Morocco's demographic and economic reality. Almost one fifth of the total population lives in poverty, up from 13 percent in 1991, and the World Bank classifies almost half the population as "economically vulnerable."²⁹ Forty-four percent of the poor are children under fifteen.³⁰ The majority of those living in poverty are concentrated in rural areas, where many of the children we interviewed had lived.³¹ Official unemployment rates at the end of 2001 stood at 13 percent, with unemployment rates for youth aged fifteen to twenty-four at 20 percent.³² Legislation mandating free, compulsory education from ages six to fifteen³³ and World Bank-financed educational reforms have increased school attendance, but primary enrollment rates remain low compared to other lower-middle-income countries.³⁴ Despite significant rural/urban and gender disparities in access to education, survey data show poverty to be the "single most important obstacle for non-enrollment of school-age children in both urban and rural areas."³⁵

In contrast to this bleak landscape of poverty and lack of opportunity at home, European television broadcasts and a regular influx of adult migrants returning on annual leave provide children with a window on the opportunities for a better life in Europe. World Bank data for Morocco suggest that worker remittances play a significant role in keeping people out of poverty, and that the decline in remittances during the 1990s have contributed to the rise in poverty.³⁶

Dr. Najat M'jid, an expert on clandestine migration of children and the director of Bayti, a Moroccan nongovernmental organization providing services to children at risk, described some of the factors driving unaccompanied child migration:

They are not street children, but youth from poor neighborhoods who are the only support for their families. They have no job skills and leave school early because they have no hope that schools will improve their situation. Also, when the [adult] migrants return in the summer they provide an image of a good life in Spain. [The children] plan for a long time; sometimes they travel with the agreement of their families, who pay clandestine travel fees to the "smugglers." There is much information [available] on how to get across to Spain. They know not to bring papers, but for the last two years they also know that with documents they can get status and they know who to ask for in Córdoba or Marseille to get help with status. We have never met one youth who comes back who says he failed. We have to work very hard to get them to tell the truth [about their bad experiences].³⁷

During our interviews, children frequently cited poverty and lack of opportunities in Morocco as their motivation for migration. Sixteen-year-old Ra`id I. explained that he had come to Ceuta in August 2001 because "I want to go to Spain to work and to help my family. My family is very poor."³⁸ Fifteen-year-old Shawqi M. told us, "I came to Ceuta because my family is poor and I want to find my life in Spain."³⁹ Seventeen-year-old Mamduh H. came to Melilla two years ago and lives in a residential center there. "Before Melilla I was in Nador for a while. You have to work to live in Morocco but there is no work. . . . The best thing [at the residential center] is the opportunity to study." ⁴⁰

Hiba A. and Amal M. are thirteen-year-old girls. Both have families in Fndeq, the small Moroccan town bordering Ceuta, but sneak into Ceuta to sell gum and cookies on the street and to beg and collect leftover food from tables at sidewalk cafes. "We come to eat," explained Hiba. Hiba has only completed three years of school in Morocco-"I had to leave school about a year ago." Amal attends sixth grade in Morocco and comes to Ceuta for longer periods of time during school vacations. "I live in the Príncipe neighborhood [a poor neighborhood in Ceuta], and I sleep with a group of women who work on the border," she told us. "It isn't scary except at night."⁴¹

Other children articulated a more complex mix of motivations. Fifteen-year-old Thabit S. left his job in a butcher shop in Tangier to travel to mainland Spain at the beginning of 2001, hidden under a large truck headed to Algeciras, Spain. "My heart told me to go to Spain so I went," he said. "My parents let me do what I want." Asked why he had undertaken such a dangerous crossing, he said "I see my future in Spain. The next time I will go over and become a butcher. I will go to school there and learn. My friends went to Barcelona and Madrid and went to school there. The schools there have everything. They [my friends] call on the phone and say things are good there."⁴²

Some Moroccan families expressly or indirectly encouraged their children to migrate. Lutfi M., a twelve year-old from Rincon del Mediaq, a town about twenty-five kilometers from Ceuta, told Human Rights Watch that he had come to Ceuta a few months earlier because "my mother told me to look for my life in Ceuta."⁴³ Other children said they were fleeing broken or abusive homes: "I had a lot of problems with my family," Munsif M. explained. "My father hit me. I don't know why he hit me."⁴⁴ Fifteen-year-old Samir A. traveled to Melilla from Fés. "My father is married to another wife, and my mother is alone," Although he has a sister living in Ceuta, "it was too far away" and too expensive a trip to risk making.⁴⁵

The Structure of the Spanish Government
The Spanish government is highly decentralized. Responsibility for unaccompanied migrant children is split among various ministries of the central government and the nineteen autonomous regional governments. The central government is represented in each autonomous region by a representative of the central government, known as the delegado del gobierno. The autonomous regions are charged with providing direct care and protection for children through their Departments of Social Welfare. Spain granted Ceuta and Melilla the status of autonomous cities in 1995. The central government transferred responsibility for social assistance to Melilla in 1997 and to Ceuta in 1999.⁴⁶

The Ministerio Fiscal, roughly equivalent to an attorney general or state prosecutor's office, brings legal action to promote the rights of individuals and the public interest; it also watches over the independence of the courts. The Ministerio Fiscal is represented in the autonomous regions by local fiscals, who combine prosecutorial functions with investigative and protection powers. Fiscals for minors (fiscal de menores) are charged with monitoring the care of children who are under the guardianship of the state.⁴⁷

The office of the Ombudsman (Defensor del Pueblo) may receive complaints and conduct investigations in individual cases and into conditions of residential centers. The ombudsman may refer complaints to the Ministerio Fiscal and may make reference to these complaints in his annual report to the Spanish Parliament. The ombudsman may also bring an action before the Constitutional Court to challenge the constitutionality of an official act.⁴⁸

There are three principal police forces with somewhat overlapping functions: the National Police (Policía Nacional), the Civil Guard (Guardia Civil), and the local police. The National Police, under the Ministry of the Interior, are responsible for passport control, the registration of foreigners, criminal investigations, and other police functions in urban areas. The Civil Guard, also a unit of the Ministry of the Interior, carries out anti-smuggling operations, provides security for borders, airports, highways, and ports, and transports prisoners, among other duties. The local police provide general policing functions in each municipality.⁴⁹

5 According to Eurostat, the net inflow of international migrants to the European Union increased from 581,000 in 1998 to 1,068,000 in 2000, and was expected to hold steady at about one million in 2001. Eurostat, Statistics in Focus: Populations and Social Conditions: Theme 3-19/2001, Population and Living Conditions (Luxembourg: European Communities, 2001).

6 Organization for Economic Cooperation and Development (OECD), Trends in International Migration: Continuous Reporting System on Migration, 2001 Annual Report (Paris: OECD, 2001) p. 241.

7 The number of children present varies seasonally, increasing during the summer when weather is more favorable for sea crossings. A February 2001 study sponsored by the Ministry of Labor and Social Affairs estimated that in 2000 approximately 1,500 known unaccompanied migrant children were present in Spain. The report acknowledges that these numbers only include children who have at some point been registered by a government agency and that great discrepancies exist between the data collected by the autonomous regions and that collected by the central government. See Programa "Migración y Multiculturalidad," Universidad Autónoma de Madrid, Menores no acompañados que han entrado en territorio español sin representación legal (Madrid: Universidad Autónoma de Madrid, 2001).

8 For example, the government of Andalucía said it had provided services to 858 newly arrived Moroccan children in 1999, double the number of new arrivals in 1998, and was expecting as many as 3,000 new arrivals in 2000. According to press accounts, the number of unaccompanied child migrants in Madrid alone has ranged between 700 and 1,000 per year since 1996. Ignacio Martínez, "La Junta de Andalucía pide ayuda a la UE y al Gobierno para frenar la entrada de menores," El Pais (Madrid), August 4, 2000. Patricia Ortega Dolz, "La batalla contra el tiempo del joven inmigrante," El Pais, August 18, 2000.

9 Manel Capdevila i Capdevila, head of the Emergency Care Section of the Directorate of Childhood Care in Catalonia's Department of Justice, estimates that 90 percent of unaccompanied child migrants in Spain are North African, of whom 80 percent are Moroccan. Manel Capdevila i Capdevila, Los menores extranjeros indocumentados no acompañados (M.E.I.N.A.): exigencia de nuevas respuestas (Barcelona: Department of Justice, Catalonia, 2001).

10 See generally J.F. Salafranca, El sistema colonial español en Africa (Málaga: Editorial Algazara, 2001); Ana I. Planet Contreras, Melilla y Ceuta: espacios-frontera hispano-marroquíes (Melilla: Ciudad Autónoma de Melilla, Ciudad Autónoma de Ceuta, and UNED-Melilla, 1998).

11 Human Rights Watch interview with Miguel Angel Sánchez Lorenzo, fiscal for minors, Melilla, Spain, October 24, 2001.

12 See, for example, Organic Law 1/1996, of January 15, Regarding the Legal Protection of Minors, articles 12-23, Boletín Oficial del Estado, No. 15, January 17, 1996 (Spain).

13 Human Rights Watch interview, Ceuta, Spain, November 7, 2001.

14 See, for example, Carmen Echarri, "Vecinos de San Antonio protestan por la cadena de actos vandálicos de menores," El Faro (Ceuta), May 25, 2001, p. 14.

15 B.M., "Pilar del Castillo afirma que los menores serán escolarizados," El Faro, November 16, 2000.

16 "Escrito remitido por el Defensor del Pueblo," El Faro, November 18, 2000.

17 José Carlos García, "'Mensajeros de la Paz' gestionará el proyecto de la Ciudad con los menores," El Faro, April 12, 2000.

18 See chapter V.

19 "El 72,2% de las reintegraciones de menores a Marruecos no prospera," Diario Sur (Melilla), January 24, 2002.

20 E-mail message from José Palazón, president, Prodein, March 1, 2002.

21 Luís Manuel Aznar, "Los menores transfronterizos serán expulsados a Marruecos," El Pueblo (Ceuta), June 5, 2001; C.E., "`Muy pronto tendremos noticias, que pasan por la repatriación de los menores'; el próximo mes de julio se tratará este asunto en una reunión en Sevilla," El Faro, June 15, 2001.

22 "Chaib pide la repatriación de los niños `que no quieren integrarse'; en el centro están acogidos ya 14 menores argelinos y 78 marroquíes," El Faro, August 15, 2001, p. 5.

23 Sara Sanz, "La Delegación de Gobierno expulsará a los delincuentes sin documentación española," Diario Sur, January 17, 2002.

24 T.R., "El delegado en Melilla niega que expulsar a familias con hijos delincuentes sea inhumano o inconstitucional; su homólogo en Ceuta concluye que se ha malinterpretado a Esteban porque le medida es ilegal," El País, January 17, 2002.

25 "El Gobierno de Melilla posee informes jurídicos que avalan la expulsión de menores delincuentes," Diario Sur, January 25, 2002; Toñy Ramos, "El Gobierno avala el plan para expulsar de Melilla a familias de menores delincuentes; enviará el acuerdo al Defensor del Pueblo," El País, January 22, 2002.

26 M. Sáiz-Pardo, "El Ejecutivo descarta expulsar a las familias de los menores extranjeros que delincan; asegura que esta actuación `carece de cualquier sustento jurídico o legal,'" Diario Sur, January 17, 2002.

27 "El Gobierno dice que actuará legalmente en la expulsion de menores," Efe, February 2, 2002.

28 T.B., "Rajoy rechaza la propuesta para expulsar de Melilla a familiares de menores," El País, February 2, 2002.

29 According to the Moroccan Bureau of Statistics, the poverty rate rose 58 percent between 1991 and 1998, from 13.1 percent to 19 percent, affecting 27.2 percent of the rural population and 12 percent of the urban population. The World Bank defines the "economically vulnerable" as those who are at or below 50 percent above the poverty line, a group that accounted for 44 percent of the population in 1998/99, up from 35 percent in 1990/91. Repères Statistiques, October 2001, No. 62, http://www.statistic.gov.ma/pop62bis.htm (accessed January 16, 2002); and Summary, World Bank Poverty Update, Morocco, March 30, 2001, Report No. 21506-MOR, http://wbln0018.worldbank.org/dg/povertys.nsf/de9638da553fbfbf8525678a0070b1af/79e3d7728d83ef3485256b22005b726c?OpenDocument (accessed February 8, 2001).

30 Summary, World Bank Poverty Update, Morocco, March 30, 2001.

31 In 1998, 3,496,000 rural inhabitants lived in poverty, compared to 1,814,000 urban inhabitants, although roughly half the population (55.2 percent in 2000) lives in urban areas. Repères Statistiques, October 2001, No. 62, http://www.statistic.gov.ma/pop62bis.htm (accessed January 16, 2002).

32 Unemployment in urban areas was even higher, with total urban unemployment rate of 19.5 percent and a youth urban unemployment rate of 35.1 percent. These rates may understate the actual unemployment rate, as the government figures exclude significant numbers of underemployed, especially in rural areas. Repères Statistiques, November 2001, No. 63, http://www.statistic.gov.ma/pop62bis.htm (accessed January 17, 2002).

33 Decree 1.63.071 of November 13, 1963, Relating to Compulsory Basic Education, as amended by Law 04-00 of 2000 (Morocco).

34 According to Morocco's second periodic report to the Committee on the Rights of the Child, the national enrollment rate for six- to eleven-year-olds was 80 percent in 2000/1999, and enrollment rates in rural areas were only 69.5 percent during the same period. Despite significant improvements beginning in the mid-1990s, enrollment rates for girls were even lower, reaching only 62.1 percent in rural areas. The World Bank gives Morocco's gross primary enrollment rate as 86 percent, markedly lower than the average for the Middle East and North Africa (95 percent) and for lower middle income countries (114 percent). The gross primary enrollment rate measures the ratio of the total number of children enrolled in primary school to the total number of children in the primary school age group, and thus may include children older than that age group. Ministry for Human Rights, the Kingdom of Morocco, Second Periodic Report of the Kingdom of Morocco Regarding Implementation of the Convention of the Rights of the Child, July 2000, Part 2, Section 7 (Arabic); World Bank, "Morocco at a Glance," 9/20/01, http://www.worldbank.org/data/countrydata/aag/mar_aag.pdf (accessed January 15, 2001).

35 Net primary enrollment rates for the poor were 36.3 percent in 1998, lower than even the rate for all rural girls (46.8 percent). The net primary enrollment rate is the total number of children enrolled in primary school who belong in the primary school age group, expressed as a percentage of the total number in that group. World Bank Poverty Update, Morocco, March 30, 2001, Report No. 21506-MOR, p. 30.

36 According to survey data for 1998/99, among households receiving worker remittances, the remittances were equivalent to about 17 percent of household expenditures per capita in urban areas and 10 percent of household expenditures per capita in rural areas. Without the remittances, about one million Moroccans would have dropped below the poverty line in 1998/99, raising the incidence of poverty in that year to 23 percent nationally and 31 percent in rural areas. World Bank Poverty Update, pp. 22-23.

37 Human Rights Watch interview with Dr. Najat M'jid, director, Bayti, Casablanca, Morocco, October 28, 2001. The first Moroccan organization with a street children program, Bayti operates outreach programs for children living on the street, including street programs, drop-in centers, vocational and educational programs, shelters, parental education, and foster families in Casablanca, Essaouira, Meknés, and Rabat. For information on Bayti programs, see http://www.zonebleue.co.ma/bayti/ (accessed March 13, 2002).

38 Human Rights Watch interview, Ceuta, Spain, November 7, 2001.

39 Human Rights Watch interview, Ceuta, Spain, November 7, 2001.

40 Human Rights Watch interview, Melilla, Spain, October 22, 2001.

41 Human Rights Watch interview, Ceuta, Spain, November 6, 2001.

42 Human Rights Watch interview, Tangier, Morocco, November 1, 2001.

43 Human Rights Watch interview, Ceuta, Spain, November 5, 2001.

44 Human Rights Watch interview, Melilla, Spain, October 23, 2001.

45 Human Rights Watch interview, Melilla, Spain, October 22, 2001

46 See Royal Decree 1385/1997 of August 29, On the Transfer of Functions and Services from the State Administration to the City of Melilla in Matters of Social Assistance, Boletín Oficial del Estado, No. 229, September 24, 1997 (Spain); Royal Decree 30/1999 of January 15, On the Transfer of Functions and Services from the State Administration to the City of Ceuta in Matters of Social Assistance, Boletín Oficial del Estado, No. 54, February 4, 1999 (Spain).

47 See Constitución Española, art. 124; Law 50/1981, of December 30, Regulating the Statute of the Ministerio Fiscal, article 1, Boletín Oficial del Estado, no. 11, January 13, 1982 (as amended).

48 See Organic Law 3/1981, of April 6, on the Ombudsman, Boletín Oficial del Estado, no. 109, May 7, 1981 (Spain); Law 36/1985, of November 6, Regulating the Relationship Between the Institution of the Ombudsman and Similar Officials in the Various Autonomous Communities, Boletín Oficial del Estado, no. 271, November 12, 1985 (Spain); Regulation of the Organization and Function of the Ombudsman, Boletín Oficial del Estado, no. 92, April 18, 1983 (Spain).

49 See Ministerio del Interior, Dirección General de la Policía, "Funciones y Competencias," available at www.mir.es/policia/cnp/seg_ciu.htm (accessed on March 6, 2002); Ministerio del Interior, Guardia Civil, "Misiones de la Guardia Civil," available at www.guardiacivil.org/10organizacion/misiones.asp (accessed on March 6, 2002); Policía Local de Ceuta, Memoria'97 (Ceuta: Policía Local de Ceuta, 1997), available at ww2.ciceuta.es/inicio.htm (accessed on March 6, 2002).