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Introduction

Human Rights Watch has previously documented that unaccompanied children in Spain face detention upon arrival and may face abuses in residential centers, and expulsion without due process to countries where they are at risk of cruel, inhuman, or degrading treatment.1

This report identifies a fundamental flaw in Spain’s repatriation of unaccompanied migrant and refugee children: the government’s failure to provide children with independent legal representation during repatriation procedures. This gap in protection leaves children unable to challenge decisions that fundamentally affect their lives and may result in children sent back to situations where their well-being is at risk. Adult migrants, in contrast, receive free legal assistance from lawyers in a deportation procedure.

There are significant procedural weaknesses in how Spanish law, which generally reflects international standards on children’s rights, is translated into practice. Under international law, an unaccompanied child may be returned only if it is in the child’s best interests and if adequate care is available. However, failure to regulate procedures for repatriating children in detail mean that best interest determination is not a reality, and government departments or entities repeatedly fail to fulfill their international obligations. The fact that child protection services may initiate repatriation procedures and yet are also responsible for representing children within them is a conflict of interest.

Spain has been a significant destination country for unaccompanied migrant and refugee children for the past 10 years. The majority of these children are from Africa, especially Morocco and, to a lesser extent, Senegal and other West African countries. Today there are approximately 3,000-5,000 unaccompanied foreign children in Spain, with most in the Canary Islands, Andalusia, Madrid, and Catalonia.2

The number of unaccompanied children Spain repatriated in the past two years is low compared to the overall number of unaccompanied children in the country. 3 In an effort to increase the overall number of repatriations of unaccompanied minors, Spain has recently concluded bilateral agreements with Morocco and Senegal. These agreements lack basic procedural guarantees to ensure that children are not repatriated to situations of risk. Spain has also financed the construction of reception facilities for returned children in Morocco. Spain’s ruling party’s pledge to increase repatriations of unaccompanied children furthermore featured prominently in the run-up to the March 2008 general elections.4

In practice, Spain has repeatedly sent unaccompanied children back to situations of risk in their countries of origin. Numerous reports document repatriations that were not in the child’s best interests, or cases in which children were returned without being reunited with their families or taken care of by child protection services.5 In 2007, the police repatriated two Moroccan boys even though police had been informed that a judicial decision suspended the boys’ repatriation.6 Moroccan unaccompanied children face routine ill-treatment and detention by Moroccan security forces and border guards.7 Spanish Ombudsmen in 2005 described repatriation decisions as “random” and “automatic.”8

Human Rights Watch urges Spain to ensure that all unaccompanied children who face repatriation are represented by an independent lawyer, and to carefully examine and document the child’s best interests, and the risks and dangers awaiting the child upon return, before making a repatriation decision.



1 See Human Rights Watch, Nowhere to Turn: State Abuses of Unaccompanied Migrant Children by Spain and Morocco, vol.14, no. 4(D), May 2002, www.hrw.org/reports/2002/spain-morocco/; Human Rights Watch, Unwelcome Responsibilities: Spain’s Failure to Protect the Rights of Unaccompanied Migrant Children in the Canary Islands, vol. 19, no. 4(D), July 2007, www.hrw.org/reports/2007/spain0707/.

2 Official figures on the total number of unaccompanied migrant children in Spain are unreliable. Figures are compiled by regional authorities and are not recorded in a uniform manner; children may be recorded multiple times in various autonomous communities due to the lack of a functioning centralized registry. According to UNICEF, Spain reported 5,200 unaccompanied Moroccan children registered in Spanish residential centers at the end of 2007. Human Rights Watch interview with Lenin Guzman, deputy director, UNICEF Morocco, Rabat, May 9, 2008. According to the Ministry of Labor’s Childhood Observatory, 9,117 unaccompanied migrant children were taken into care in 2004, the most recent year for which the ministry makes figures available on its website. In contrast, the Ministry of Interior reported 1,873 children taken into care in 2004. Ministry of Labour and Social Affairs (Ministerio de Trabajo y Asuntos Sociales), Childhood in Figures: Number 2 (La Infancia en Cifras: Número 2), (Madrid: 2006), www.mtas.es/SGAS/FamiliaInfanc/infancia/AcuerdosConvenios/InfanciaCifras.pdf  (accessed June 20, 2008) p. 182; Ombudsman (Defensor del Pueblo), Report on Legal Assistance for Foreigners in Spain (Informe Sobre Asistencia Jurídica a Los Extranjeros en España) (Madrid: 2005), p. 460.

3 Spain repatriated a total of 111 unaccompanied children in 2006, out of which 81 were returned to Morocco. The official figure in 2007 of repatriated children stood at 27. Amnesty International, “Spain: Briefing to the Human Rights Committee,” AI Index: EUR 41/012/2008, June 2008, www2.ohchr.org/english/bodies/hrc/docs/ngos/AI_Spain93.pdf (accessed September 24, 2008), p. 34.

4 “Rumí underscores the government’s will to ‘facilitate’ the assisted return of children with ‘rigor and seriousness’” (“Rumí subraya la voluntad del Gobierno para 'agilizar' el retorno asistido de menores con 'rigor y seriedad”), La Región, October 26, 2007, www.laregioninternacional.com/noticia/8485/ConsueloRum%C3%AD/emigraci%C3%B3n/retornoasistido/menores/inmigrantes/menoressolos/menoresnoacompa%C3%B1ados/asistenciasocial/retornodeinmigrantes/ (accessed September 24, 2008); “De la Vega assures that the government has initiated repatriation files for children” (“De la Vega asegura que el Gobierno ha puesto en marcha expedientes de repatriación de menores”), Granada Digital, December 10, 2007, www.granadadigital.com/index.php/nacional_gr/86963-Redacci%C3%B3n%20GD (accessed September 24, 2008).

5 Human Rights Watch, Nowhere to Turn: State Abuses of Unaccompanied Migrant Children by Spain and Morocco, vol.14, no. 4(D), May 2002, www.hrw.org/reports/2002/spain-morocco/; Association for Human Rights – Andalusia (Asociación pro derechos humanos de Andalucía) (APDHA), “Migrations and Rights of Unaccompanied Children” (“Migraciones y Derechos del Menor Extranjero no Acompañado”), 2006; Spanish Commission for Refugee Assistance (Comisión Española de Ayuda al Refugiado) (CEAR), Letter to the Office of the High Commissioner for Human Rights, Madrid, September 8, 2006; Ombudsman (Defensor del Pueblo), Annual Report 2005 and Debates in Parliament (Informe anual 2005 y debates en las Cortes Generales) (Madrid: Parliamentary Publications, 2006) www.defensordelpueblo.es/documentacion/informesanuales/Informe2005.zip (accessed September 25, 2008); Ombudsman (Defensor del Pueblo), Annual Report 2004 (Informe Annual 2004), www.defensordelpueblo.es/index.asp?destino=informes1.asp (accessed March 12, 2008),  p. 433; Ombudsman (Defensor del Pueblo),Annual Report 2007 (Informe anual 2007), www.defensordelpueblo.es/InformesAnuales/informe2007.pdf (accessed September 19, 2008), pp. 486-489; SOS Racism (SOS Racismo), “Children Between Borders: Repatriations Without Safeguards and Abuses Against Moroccan Children” (“Menores en Las Fronteras: De los Retornos Efectuados Sin Garantías a Menores Marroquíes y de los Malos Tratos Sufridos”), 2004, www.mugak.eu/ef_etp_files/view/Informe_menores_retornados.pdf?revision%5fid=9202&package%5fid=9185  (accessed June 11, 2008); UN Commission on Human Rights, Report of the Special Rapporteur on the human rights of migrants, Ms. Gabriela Rodríguez Pizarro, Visit to Spain, E/CN.4/2004/76/Add.2, 14 January 2004, paras. 55-56; Amnesty International (Amnistía Internacional), “Spain: Identity crisis, and racially motivated torture and ill-treatment by state agents” (“España: Crisis de identidad; tortura y malos tratos de índole racista a manos de agentes del Estado”), AI Index: EUR 41/001/2002, April 15, 2002, www.amnesty.org/fr/library/info/EUR41/001/2002/es (accessed March 31, 2008) pp. 73-82; US State Department, Bureau of Democracy, Human Rights, and Labor, “Country Reports on Human Rights Practices – 2006: Morocco,” March 6, 2007, www.state.gov/g/drl/rls/hrrpt/2006/78859.htm (accessed March 17, 2008); US State Department, Bureau of Democracy, Human Rights, and Labor, “Country Reports on Human Rights Practices – 2005: Morocco,” March 8, 2006,  www.state.gov/g/drl/rls/hrrpt/2005/61695.htm (accessed March 17, 2008); United Nations Committee against Torture, “Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, Spain,”  CAT/C/CR/29/3, 23 December 2002, para 11(b); UN Committee on the Rights of the Child, “Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations, Spain,” CRC/C/15/Add.185, June 13, 2002, para 46(c).

6 See: Ombudsman (Defensor del Pueblo),Annual Report 2007 (Informe anual 2007), www.defensordelpueblo.es/InformesAnuales/informe2007.pdf(accessed September 19, 2008), p. 488.

7 Under official procedures, Spain repatriates unaccompanied Moroccan children by handing children over to Moroccan border guards (Royal Decree 2393/2004, art. 92(4); and Ministry of Labor and Social Affairs Protocol on unaccompanied foreign children, cited in Observatorio de la Infancia, “Protocolo de Menores Extranjeros no Acompañados,” Ministerio de Trabajo y Asuntos Sociales, Madrid, December 2005). Returned children face the risk of being detained on the basis of article 50 of the Moroccan Act on Immigration and Emigration, law No. 02-03, which criminalizes “irregular emigration” from Morocco with a fine and/or imprisonment of up to six months.

8 Ombudsman, Annual Report 2005 and Debates in Parliament, p. 313; Children’s Ombudsman in Madrid (Defensor del Menor en la Comunidad de Madrid), Annual Report 2005  (Madrid: 2006), p. 75.


October 2008

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