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Conclusions and Recommendations

Human Rights Watch found that repatriation procedures in Andalusia fall short of guaranteeing that repatriations serve children’s best interests and ensure their safety and well-being. In fact, we found that there is a fundamental misunderstanding of the best interest principle and dangerous presumption that return for an unaccompanied child is in the child’s best interest and need not be determined on an individual basis and in combination with a risk assessment. These findings are consistent with repeated criticism by the Spanish Ombudsman and non-governmental organizations, and with rulings by national courts. They also show that repatriation procedures lack crucial safeguards: unaccompanied children are not given independent representation during a procedure that has a fundamental impact on their lives and may put their well-being and the exercise of their fundamental rights at risk.

To the Government of Spain

Change repatriation procedures to include, at the minimum, the following safeguards:

• Provide all unaccompanied children with competent and independent legal representation, in addition to representation by child protection services. Legal representation should be made available at the initiation of a repatriation proceeding.
• Precede any repatriation proposal or decision with a formal determination of the child’s best interests, in line with UNHCR’s guidelines on formal best interest determination, and the Committee on the Rights of the Child’s General Comment No. 6.
• Carry out a thorough and individualized analysis of whether a repatriation would place the child at risk of having his or her fundamental rights violated or persecution or abuse targeting the child or family.
• Create a mechanism that guarantees every child’s right to be heard during a repatriation proceeding in the presence of the child’s legal representative.

Make the implementation of the bilateral readmission agreements transparent by allowing for independent monitoring of their implementation and by making the periodic reports by the committees tasked to oversee the agreements’ implementation public.

To the United Nations Human Rights Committee

Urge Spain to improve its safeguards for unaccompanied children who face repatriations in order to comply with its obligation under article 13 of the ICCPR, in accord with the above recommendations to the Spanish government. Recommend in particular that Spain provide unaccompanied children independent lawyers during repatriation procedures.

To the Governments of Morocco and Senegal

Urge the government of Spain to grant unaccompanied children their full rights as stipulated by national law and binding international obligations.

Make the implementation of the bilateral readmission agreements transparent and allow for their independent monitoring.

Cooperate in the return of an unaccompanied child when such a decision is in the child’s best interests and if adequate care arrangements can be guaranteed for the returned child.

October 2008

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