Author
Children shall not be detained as a rule,[1] but the Aliens Act foresees the possibility of detaining families with children.[2] Similarly, as already mentioned, unaccompanied or separated migrant children are never detained in CIEs, unless they are not identified as minors before detention.
Although detention of asylum seekers or vulnerable categories is not explicitly allowed by law, in practice several exceptions have been reported concerning unaccompanied children and victims of trafficking. This is due to the lack of identification of the minor age of the person, or of their status of victim of trafficking. For example, according to the annual report issued by the Ombudsperson in its capacity of National Prevention of Torture Mechanism, 11 persons were identified as minors at CIEs in 2022, the highest number being detained in the CIEs of Valencia (7) and Barcelona (3).[3] In its 2022 report on CIEs, the Jesuit Refugee Service highlighted the persistent problem of detention of presumed unaccompanied migrant children, asylum seekers with an application lodged in other EU member States, women victims of gender-based violence, EU citizens, etc.[4]
Nonetheless, when they are identified as minors or victims of trafficking while they are in detention, they are released and handled to the competent protection systems. In addition, applicants such as pregnant women or persons requiring assistance may be exempted from the border procedure and admitted to the territory in specific cases.
[1] Article 62(4) Aliens Act.
[2] Article 62-bis(1)(i) Aliens Act. The part of this provision, referring to the need for CIE to guarantee family unity, has been set aside by the Supreme Court: Tribunal Supremo, Application 373/2014, 10 February 2015.
[3] Mecanismo Nacional de Prevención de la Tortura, Defensor del Pueblo, ‘Informe Anual 2022. Anexo D – Lugares y centros de detención de personas extranjeras y procedimientos que se les aplican’, March 2023, available in Spanish at: https://tinyurl.com/39detvye.
[4] Servicio Jesuita a Migrantes, ‘Informe CIE 2022.Diferencias que generan desigualdad’, June 2023, available in Spanish at: https://tinyurl.com/yc6w5adx.