Case-Study: AndalusiaBecause of its location on the Mediterranean Sea across from the coast of Morocco, the autonomous community52 of Andalusia has for a long time dealt with high numbers of unaccompanied children within its territory. A Spanish newspaper reported in June 2008 that Andalusia’s child protection system was caring for 1,210 unaccompanied children.53 In early 2007, the regional government, which had previously pursued a policy of not repatriating unaccompanied children, announced that it would begin efforts to start returning unaccompanied children to Morocco. Andalusia government representatives were quoted in the media saying that protection centers could no longer cope with the high numbers of children, and that unaccompanied children from Morocco were not really in need of protection because they deliberately left families who cared for them; the children’s repatriation, they argued, was in their best interest.54 The responsible regional Minister stated in October 2007 that repatriations would fulfill all legal guarantees “to always respect the rights of these children” and that every case would be studied “in greatest detail.”55 However, Human Rights Watch’s investigation of repatriation procedures in Seville, Málaga, and Cádiz provinces in Andalusia in early 2008 revealed that officials in charge were unable to explain to us how they made a best interest determination and generally assumed a child’s interest is served through a repatriation. We were, for example, told that families were in frequent contact with their children, which demonstrated that they cared about their fate and that repatriation was therefore in the child’s best interest. Officials who proposed or approved repatriations did not seek relevant information to assess the child’s best interests or the risks for a returned child. Children were not informed that their repatriation had been proposed or decided, and they were unable to legally challenge such decisions before a competent authority; children also did not receive information about their right to seek asylum or enjoy access to asylum procedures.56 Government entities either did not carry out hearings with children at all or the hearings they carried out were very superficial. Officials displayed a lack of clarity as to whom is responsible to hear the child during a repatriation procedure. Child protection services said central government representatives or public prosecutors conducted hearings with the child; central government representatives in turn told us that this was the responsibility of public prosecutors, law enforcement bodies, or the child protection services. One public prosecutor explained to us that he halted the repatriation of two children because the administration had not heard the children. Human Rights Watch viewed one transcript of a “hearing” with a child that was only two sentences, and simply said that the child did not want to return. None of the officials we spoke with was able to explain to us how a best interest determination is made; however, officials of child protection services consistently told us that the best interest of the child is to be repatriated.57 A child protection service official told us that it was generally in the best interest of a child to return to his or her country and the mere fact that the Moroccan consulate agreed to take responsibility for a child was a sufficient guarantee for the child’s well-being.58 Morocco, the official said, is a sovereign country, party to the Convention on the Rights of the Child, and says it has a child protection system; therefore, it is not possible for Spain to question such a guarantee, he said. The central government delegation in another province told us that they seek a written guarantee from the consulate that Moroccan authorities will assume protection and care for the child.59 However, when we sought to confirm this with the consulate, consulate officials were not aware that such guarantees were issued.60 Even if Moroccan consulates issued guarantees or gave assurances to take care of the child, this would not lift the obligation on Spain to carefully assess the risks for a child of being subject to inhuman or degrading treatment, neglect, or exploitation upon return, before making a repatriation decision. By arguing that a child’s well-being is guaranteed because Morocco ratified the Convention on the Rights of the Child, the Spanish administration deliberately refuses to objectively assess all risks and dangers for the child upon return as well as the child’s best interests.61 The European Court of Human Rights has made clear that the fact that a receiving country has ratified human rights treaties is not sufficient to satisfy a sending countries duty to protect a person from ill-treatment.62 We also found that the Andalusia administration had only scant knowledge about the children in its child protection system. Staff who work in care centers often have valuable knowledge about a child’s history and reason behind the child’s displacement, which should inform a best interest assessment in the search for a durable solution. Additionally, they may have a relationship of trust with the child, which is conducive to documenting sensitive information, for example, that a child has been subject to abuse or neglect. These personnel therefore should receive guidance from child protection services in documenting their background and the reasons for their displacement. Care center staff we met with in Andalusia, however, told us that they were not required to document information that is relevant to a repatriation decision, such as whether a child suffered from domestic violence, whether a child has lived in the streets, has suffered from labor exploitation, or whether a child faces trafficking risks upon return. 63 Instead, staff were primarily tasked to note the child’s identity and family contacts. They were also not aware which children had been proposed for repatriations. Andalusia authorities also told us that Moroccan consulates do not cooperate and facilitate the exchange of information about a child’s background or the child’s family.64 We found that unaccompanied children in Andalusia, with few exceptions, are not given information about their right to seek asylum and have no opportunity to ask for or be considered for asylum.65 Central government and child protection services representatives possessed very limited knowledge about asylum and their obligations under international law, and some wrongly assumed that staff who work in care centers give such information.66 One central government representative in a province even remarked that children could not be subject to persecution and in order to get a resident permit, children need not apply for asylum.67 This statement, while made by just one person, raises concerns about how widespread sentiments like this may be amongst officials. Despite this glaring absence of objective information about the possible fate awaiting a child upon return, Andalusia child protection services propose the repatriation of unaccompanied children on a continuous basis and apparently without any prior assessment.68 Central government representatives who make the final decision to repatriate a child in turn told us that they generally do not question proposals submitted by the child protection services and were confident that such repatriation proposals were made in the child’s best interests.69 Officials complained, however, that Moroccan consulates did not provide any assistance to process children’s repatriations.70 In at least two cases, in which the central government approved the repatriation of two unaccompanied boys to Morocco, the public prosecutor intervened and their repatriation was stopped in August 2007 because the boys had not been heard during the procedure and because there was no guarantee that they would be reunited with their families.71 52 Spain is politically organized into 17 autonomous communities and 2 autonomous cities. Autonomous communities consist of one or more provinces; Andalusia is divided into eight provinces. 53 J. Martín-Arroyo, “Crossing the straight and becoming an adult” (“Cruzar el Estrecho y hacerse mayor”), El Pais, June 14, 2008, www.elpais.com/articulo/andalucia/Cruzar/Estrecho/hacerse/mayor/elpepiespand/20080614elpand_12/Tes/ (accessed September 19, 2008). 54 The Andalusia Minister for equality and social affairs is quoted in a newspaper article advocating for children’s repatriations “for the best interest of the child.” See Antonio Fuentes, “Múgica condemns the Junta for not protecting immigrant children” (“Múgica desaprueba que la Junta evite amparar a los menores inmigrantes”), Europasur, June 12, 2008, www.europasur.es/article/andalucia/153515/mugica/desaprueba/la/junta/evite/amparar/los/menores/inmigrantes.html (accessed September 23, 2008). She was also quoted saying that Moroccan children come to Andalusia like children on a scholarship program and are not in need of protection. See José Bejarano, “Immigrants with Erasmus scholarships” (“Inmigrantes con becas Erasmus”), La Vanguardia, May 14, 2008, www.lavanguardia.es/lv24h/20080514/imp_53462931788.html (accessed September 25, 2008). Within the past year, Andalusia child protection services attempted twice to evade their legal obligation to assume guardianship for every unaccompanied child. They issued a circular in fall 2007 arguing that unaccompanied children would no longer automatically be put under state guardianship, because they deliberately left their families and caused the lack of protection themselves–a move considered illegal by the Spanish Ombudsman. A second circular was issued in spring 2008 instructing child protection services not to assume guardianship for unaccompanied children who are close to reaching adulthood. See Antonio Fuentes, “Múgica condemns the Junta for not protecting immigrant children” (“Múgica desaprueba que la Junta evite amparar a los menores inmigrantes”), Europasur, June 12, 2008, www.europasur.es/article/andalucia/153515/mugica/desaprueba/la/junta/evite/amparar/los/menores/inmigrantes.html (accessed September 23, 2008). 55 See the statement of the Andalusia Minister on Equality and Social Affairs Micaela Navarro Garzón before the Andalusia parliament, Andalusia Parliament (Parliamento de Andalucía), “Journal of Sessions, No. 390” (“Diario de Sesiones, No. 390”), October 3, 2007, www.Parliamentodeandalucia.es/webdinamica/portal-web-Parliamento/pdf.do?tipodoc=diario&id=21293 (accessed September 18, 2008), pp. 12511-12515. 56 We shared these conclusions with central government and regional authorities in Andalusia with a letter dated May 9, 2008, and requested clarification on how identified shortcomings will be remedied. We informed them in a second letter on August 13, 2008, that our findings will be made public but have not received a response. 57 Human Rights Watch interviews with Agustin López Sánchez, head of child protection services in Cádiz province, Cádiz, January 29, 2008; Francisco Caleros Rodríguez, secretary of the subdelegate in Cádiz and Juan Ortuño, chief of cabinet, Cádiz, January 29, 2008; Inmaculada Dugo Benítez, head of child protection services in Seville and Isabel Gragera Murillo, head of office for child welfare, Seville, February 4, 2008; Cármen Belinchón Sánchez, director general of child protection and family affairs in Andalusia, Seville, February 5, 2008; Vigente Vigil-Escalera Pacheco, area director for labor and social affairs, central government representation in Seville, Seville, February 6, 2008; Juan Alcover, area director for labor and social affairs, central government representation in Málaga, Málaga, February 7, 2008; Isidro Ramos Rengife, head of child protection services in Málaga, Málaga, February 7, 2008. 58 Human Rights Watch interview with Isidro Ramos Rengife, head of child protection services, Málaga, February 7, 2008. 59 Human Rights Watch interview with Juan Ortuño, chief of cabinet, and Francisco Calero Rodríguez, secretary of the subdelegate, Subdelegación del Gobierno, Cádiz, January 29, 2008. 60 Human Rights Watch interview with Nadia Kourima, responsible for social affairs, consulate of Morocco, Algeciras, January 30, 2008. 61 The Andalusia minister for social affairs herself declared in October 2007 that the Moroccan child protection system may not provide adequate care and protection for unaccompanied children returned by Spain because the protection system was known to be “fragile.” Andalusia Parliament (Parliamento de Andalucía), “Journal of Sessions, No. 390” (“Diario de Sesiones, No. 390”), October 3, 2007, www.Parliamentodeandalucia.es/webdinamica/portal-web-Parliamento/pdf.do?tipodoc=diario&id=21293 (accessed September 18, 2008), p. 12509. 62 “The Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where…reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention,” Saadi v. Italy, (Application no. 37201/06), Judgment of 28 February 2008, available at www.echr.coe.int, para. 147. 63 Human Rights Watch interviews with several staff who work in care centers in Seville, Cádiz, and Málaga provinces (exact names and dates withheld). 64 Human Rights Watch interview with Juan Ortuño, chief of cabinet, and Francisco Calero Rodríguez, secretary of the subdelegate, Subdelegación del Gobierno, Cádiz, January 29, 2008; with Santiago Yerga Cobos, provicinal coordinator on migration policies, January 28, Cádiz; with Agustin López Sánchez, head of child protection services, Cádiz, January 30; with Isidro Ramos Rengife, head of child protection services, Málaga, February 7, 2008. 65 These findings are consistent with earlier findings in the Canary Islands. See Human Rights Watch, Unwelcome Responsibilities, pp. 49-54. 66 Human Rights Watch interview with Juan Ortuño, chief of cabinet, and Francisco Calero Rodríguez, secretary of the subdelegate, Subdelegación del Gobierno, Cádiz, January 29, 2008; with Agustin López Sánchez, head of child protection services, Cádiz, January 30; with Ana Hermosa Martínez, protection prosecutor, Sevilla, February 4, 2008; with Inmaculada Dugo Benítez, head of services, and Isabel Gragera Murillo, head of office for child protection, child protection services, Seville, February 4, 2008. Human Rights Watch interviews with several staff who work in care centers in Seville, Cádiz, and Málaga provinces (exact names and dates withheld). 67 Human Rights Watch interview with Juan Alcover, area director for labor and social affairs and legal advisor of the government’s subdelegation, Málaga, February 7, 2008. 68 This finding is consistent with Human Rights Watch’s previous findings in the Canary Islands. See Human Rights Watch, Unwelcome Responsibilities, p.100. We were told that child protection services in Cádiz province proposed the repatriation of more than 60 children in 2007. In Sevilla province, child protection services made proposals to repatriate children on a continuous basis, and 58 from September 2007 to January 2008. Within four years, Andalusia child protection services made 988 repatriation proposals for unaccompanied migrant children to central government representatives. See, Andalusia Parliament (Parliamento de Andalucía), “Journal of Sessions, No. 390” (“Diario de Sesiones, No. 390”), October 3, 2007, www.Parliamentodeandalucia.es/webdinamica/portal-web-Parliamento/pdf.do?tipodoc=diario&id=21293. 69 According to press reports, an investigation by the Spanish Ombudsman in Andalusia revealed that the files of unaccompanied children for whom a proposal for repatriation has been made did not include detailed and individualized reports. The Ombudsman reportedly found a tendency to automatically propose a child’s repatriation. See “Ombudsman requests a ‘detailled and personal’ report about migrant children for their repatriation” (“Defensor del Pueblo reclama un informe ‘detallado y personal’ sobre los menores inmigrantes para su reagrupación”), Europa Press, July 14, 2008, www.europapress.es/epsocial/inmigracion-00329/noticia-defensor-pueblo-reclama-informe-detallado-personal-menores-inmigrantes-reagrupacion-20080714154006.html (accessed September 24, 2008). 70 Human Rights Watch interview with Juan Ortuño, chief of cabinet, and Francisco Calero Rodríguez, secretary of the subdelegate, Subdelegación del Gobierno, Cádiz, January 29, 2008; with Santiago Yerga Cobos, provicinal coordinator on migration policies, January 28, Cádiz; with Agustin López Sánchez, head of child protection services, Cádiz, January 30; with Isidro Ramos Rengife, head of child protection services, Málaga, February 7, 2008. 71 Human Rights Watch interview with Álvaro Conde, prosecutor on alien affairs, and Angeles Ayuso, chief prosecutor, Cádiz, January 30, 2008. |