<<previous  |  index  |  next>>

Gaps in Legal Protection for Children

Repatriation Procedures Lack Clarity

The repatriation of an unaccompanied child is an administrative procedure that involves central and regional administrations, and the office of the public prosecutor, which is under direct instruction from the prosecutor general and independent from central and regional administrations.²¹

Spanish law considers all unaccompanied migrant children to be in need of protection, and thus entitled to state guardianship (tutela).²² Regional child protection services act as children’s guardians and provide a care placement, usually in a residential center, for the child.²³  They also act as children’s legal representatives during a repatriation procedure and may propose to the central government that a child be repatriated.²⁴ The decision to repatriate a child, however, is taken by the central government, either upon proposal from child protection services, or upon its own initiative, and following a report from child protection services.²⁵ Central government representatives have to hear the child and decide about the child’s repatriation in accordance with the child’s best interests.²⁶ They also contact diplomatic representations of the child’s country to process travel documents and to trace the child’s family.²⁷ The office of the public prosecutor is charged with overseeing this process to ensure that repatriations comply with the law and the administration has to communicate to the prosecutor its decisions on whether a child will be repatriated.²⁸

Spanish law generally reflects several binding international norms and standards around children’s rights, including that the child’s best interests trump any other consideration and that children must be heard in all administrative or judicial proceedings.²⁹ Under the country’s immigration regulations, a child can only be repatriated if the repatriation does not put the child at risk or danger and if a child is reunited with the family or receives adequate care from protection services in the country of origin.³⁰

However, procedures for repatriating an unaccompanied child are not regulated in more detail. For example, the law fails to specify how the hearing with the child should be conducted, or who should be present. There are no formal criteria for assessing a child’s best interests. There are no instructions as to what and who must gather information before making a repatriation decision. There are no definitions of the risks and dangers that need to be verified before returning a child, nor is it defined who is in charge of doing so. The role of public prosecutors during the procedure is left vague (see section below). As a result, government entities contradict one another as to what their responsibility is during the procedure, they repeatedly fail to fulfill their legal obligations, for example by not hearing the child during the procedure and by not submitting individualized reports, which contributes to a lack of legal protection for children (see Andalusia case study below).

The Committee on the Rights of the Child, the body that oversees the implementation of the Convention on the Rights of the Child, specifies that “the ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution,” and that “the search for a durable solution commences with analyzing the possibility of family reunification.”³¹ The committee adds, however, that further separation of a child from his or her family may be necessary for the child’s best interest and that a decision to repatriate must be weighed against other forms of durable solutions such as remaining in the host country or transfer to a third country.³² 

Family reunification in the country of origin should not be pursued where there is a “reasonable risk” that such return would lead to the violation of a child’s fundamental human rights. Such a determination of risks includes, among other things, the availability of care arrangements, the child’s level of integration in the host country, and the duration of absence from the home country, as well as socioeconomic conditions upon return.

National Courts Repeatedly Annul Illegal Repatriations

National courts in Spain have repeatedly halted repatriation decisions made by the administration and ruled that these decisions violated procedural obligations and children’s rights. National courts, however, only review a fraction of all children’s repatriation cases and, thus, are not effective substitutes for fair procedures in initial hearings. However, that national courts have taken such strong measures in the few cases that they do hear is additional evidence that the repatriation system is flawed. Moreover, in at least two instances identified by the Spanish Ombudsman, Spanish authorities disregarded judicial suspensions of repatriations and repatriated unaccompanied children.³³

Within the past two years, courts have suspended and in many cases subsequently annulled the repatriation of at least 24 unaccompanied children to Morocco.³⁴ Several cases have been upheld at the appeals level³⁵ and one case was pending before Spain’s constitutional court as of September 2008. In all cases, the court suspended or annulled repatriations ordered by central government representatives and approved by public prosecutors who found them in conformity with the law. Grounds for the suspensions and annulations included both procedural and substantive grounds, including that the administration decided to repatriate without hearing the child and without taking into consideration the possible consequences after the child’s return,³⁶ and that repatriation would violate a child’s best interests and right to legal representation.³⁷

These cases are atypical in that lawyers independently challenged repatriation decisions on behalf of unaccompanied children. Most children in repatriation proceedings do not have access to a lawyer, and even in the national court cases the Spanish administration repeatedly tried to block lawyers from representing children, challenging children’s right to be represented on the grounds that they lack the legal capacity to appoint lawyers.³⁸ While most of these cases were argued before Madrid courts where lawyers have organized themselves to take up repatriation cases on a pro bono basis, in most parts of the country, no such organization exists.

Absence of Independent Representation

In practice, unaccompanied children are left without independent representation during a repatriation procedure which prevents them from challenging a repatriation decision, as required under international law. Child protection services—children’s only legal representatives—can and frequently do recommend repatriations. However, Human Rights Watch found that such proposals are made without any assessment of the child’s best interests or information about possible risks for the child after return. That child protection services represent children in a procedure that they initiate, without adequate information, for the purpose of removing the child from Spain constitutes a conflict of interest (see the Andalusia case study below).³⁹ Even if a child expresses the wish not to return to the country of origin during the procedure, no judge necessarily reviews the decision made by the administration. The child remains represented by the child protection services, without the legal capacity to initiate such a review. As such, unaccompanied children are unable to challenge repatriation decisions, and in comparison to adult migrants who receive free legal assistance from bar associations during deportation procedures, they are worse-off.⁴⁰  

The public prosecutor has the power and the impartiality to challenge a repatriation decision on behalf of the child. However, the prosecutor is not required by law to meet face-to-face with the child during the repatriation procedure, and a child is not given an opportunity to communicate real concerns to the prosecutor. Furthermore, the prosecutor is only instructed that he or she “may verify” whether the repatriation is in the child’s best interest.⁴¹ In practice, prosecutors repeatedly failed to ensure that repatriation decisions were compliant with the law. At least two dozen repatriation cases that were successfully challenged by independent lawyers before court had all been approved by public prosecutors, but were found to violate procedural obligations or children’s rights subsequently by courts (see section above about national court decisions).

The International Covenant on Civil and Political Rights (ICCPR) grants migrants the right to submit reasons against an expulsion decision, to have his or her case reviewed by the competent authority, and to be represented for that purpose before that authority.⁴²  The European Convention on Human Rights (ECHR) grants any person the right to an effective remedy whose rights and freedoms are violated under the Convention’s provisions.⁴³ The European Court of Human Rights (ECtHR), specified that states also have an obligation to guarantee an effective remedy against the risk of rights violations⁴⁴ and that the “the remedy required by Article 13 must be ‘effective’ in practice as well as in law.”⁴⁵

The Committee on the Rights of the Child stipulates that “individuals or agencies whose interests could potentially be in conflict with those of the child’s should not be eligible for guardianship,” as such an arrangement fails to secure proper representation of the child. In addition, the Committee has stated that children in administrative or judicial proceedings should be provided with a legal representative in addition to a guardian.⁴⁶ Spanish repatriation procedure fall short of this recommendation given that child protection services are in a potential conflict of interest with the child they represent; furthermore, they remain the child’s only representative in a repatriation proceeding.

An additional binding legal obligation on Spain is the principle of non-refoulement under the Geneva Convention relating to the Status of Refugees, which prohibits Spain to return a person to a place where his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.⁴⁷ The obligation of non-refoulement is further enshrined in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and under article 3 of the European Convention on Human Rights (ECHR). Both treaties prohibit Spain to return a person to a place where he or she is subjected to torture, inhuman or degrading treatment.⁴⁸  The ECtHR, in interpreting this provision, has held that persons must not be returned if they face a real risk of ill-treatment.⁴⁹

State parties furthermore have positive obligations under Article 3 of the ECHR. They need to take requisite measures and precautions against torture or inhuman or degrading treatment. In the case of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, which involved the deportation of a 5-year old Congolese girl, the ECtHR concluded that a child’s deportation amounted to inhuman or degrading treatment including on the grounds that Belgian authorities “did not seek to ensure that she [the child] would be properly looked after or have regard to the real situation she was likely to encounter on her return to her country of origin.”⁵⁰ In Nsona v. The Netherlands, which also involved the forced removal of an unaccompanied child, the court explained State parties’ responsibility under Article 3 of the ECHR as follows:

The responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting States at the time of the expulsion.⁵¹