Author
The Asylum Act does not provide a specific mechanism for the early identification of asylum seekers that are part of most vulnerable groups. Article 46(1) of the Asylum Act makes specific reference to vulnerable groups when referring to the general provisions on protection, stating that the specific situation of the applicant or persons benefiting from international protection in situations of vulnerability, will be taken into account, such in the case of minors, unaccompanied children, disabled people, people of advanced age, pregnant women, single parents with minor children, persons who have suffered torture, rape or other forms of serious violence psychological or physical or sexual, and victims of human trafficking.
Screening of vulnerability
In these cases, the Asylum Act encourages the adoption of necessary measures to guarantee a specialised treatment to these groups. These provisions, however, do not really concern procedural arrangements. Instead, the law makes a reference to protection measures and assistance and services provided to the person.[1] In addition, due to the lack of a Regulation on the implementation of the Asylum Act to date, Article 46, as other provisions, is not implemented in practice.
Early risk assessment and other types of vulnerability identification are either conducted by asylum officers or police officers during the applicant’s asylum interview, or by civil society organisations that provide services and assistance during the asylum process and within asylum reception centres. In addition, the increase in the number of asylum seekers since 2017 exacerbated difficulties in the identification of vulnerabilities. The OAR does not collect disaggregated statistics on vulnerable groups.
UNHCR plays an important consultative role during the whole asylum process. Under the Asylum Act, all registered asylum claims shall be communicated to the UN agency, which will be able to gather information on the application, to participate in the applicant’s hearings and to submit reports to be included in the applicant’s record.[2] In addition, UNHCR takes part in the Inter-Ministerial Commission of Asylum and Refuge (CIAR), with the right to speak but not to vote, playing a central role in the identification of particular vulnerabilities during the decision-making process.
Moreover, UNHCR’s access to asylum seekers at the border, in CIEs or in penitentiary facilities enables the monitoring of most vulnerable cases considering procedural guarantees. These are crucial places for the identification of most vulnerable profiles due to the existing shortcomings and limitations that asylum seekers face in accessing to legal assistance. In asylum claims following the urgent procedure and in the case of an inadmissibility decision on border applications, UNHCR is able to request an additional 10 days term to submit a report to support the admission of the case.
The framework of Migrant Temporary Stay Centres (CETI) in Ceuta and Melilla might be regarded as a missed opportunity for early identification of vulnerable profiles within mixed migration flows. These centres manage the first reception of undocumented newly arrived migrants and non-identified asylum seekers, before they are transferred to the Spanish peninsula. For this reason, CETI could provide an opportunity for the establishment of a mechanism of early identification of most vulnerable collectives. NGOs and UNHCR who work in the CETI try to implement this important task, but the limited resources, frequent overcrowding of the centres and short-term stay of the persons prevent them from effectively doing so.
The lack of a protocol for the identification and protection of persons with special needs in CETI has always been criticised and continues to be a concern in 2023. Vulnerable groups such as single women, families with children, LGBTI+ people, and religious minorities, cannot be adequately protected in these centres.[3] In addition, it is stressed that such factors of vulnerability, coupled with prolonged and indeterminate stay in the CETI, has a negative influence on the mental health of residents and serious personal consequences.
Regarding sea arrivals, identification of vulnerabilities should in principle be carried out in the CATE where newly arrived persons are accommodated (see Access to the territory). Save the Children started to deploy teams of professionals in some parts of the coast of Andalucía, in order to monitor sea arrivals, especially in relation to children. In particular, since 2018, the organisation works with migrant and refugee children arriving by boat to Algeciras, Almería and Málaga providing child-friendly spaces and counselling, and since 2022 also in the Canary Islands The organization also has a child friendly space at the land border in Melilla since 2014.[4]
In relation to persons with disabilities, UNHCR and the Spanish Committee of Representatives of Persons with Disabilities (Comité Español de Representantes de Personas con Discapacidad – CERMI) underlined the importance of reinforcing guarantees for disabled asylum seekers and refugees. The organisations announced that they are preparing guidelines in order to assist persons with disabilities in the context of the international protection procedure from a human rights perspective.[5] Guidelines to guarantee equal treatment and no discrimination of asylum seekers, statelessness applicants, refugees and stateless people with disabilities were published in May 2021.[6]
In a report launched in June 2023, the State Observatory of Disabilities at the Ministry of Social Rights and Agenda 2030 called for the implementation of measures, protocols and tools aiming at improving the asylum procedure and the asylum reception system in line with the needs of persons with disabilities, and removing those barriers that impede their inclusion.[7] In terms of obstacles persons with disabilities face in accessing asylum and the procedure, the report highlights the lack of provision of individualised information on rights and obligations of asylum seekers, the access to services for persons with disabilities, emotional needs disregarded, exclusion in the participation and decision making processes.
Positive developments were reported in 2020 regarding identification of vulnerabilities related to the fact that the OAR now considers Female Genital Mutilation as an indicator for gender persecution, that LGTBQI+ cases are better assessed (especially those of Sub-Saharan asylum applicants), and that there has been an increase in recognition of a form of international protection to Moroccan women victims of gender-based violence. These positive improvements continued in 2023.
In July 2023 the Spanish Committee of Representatives of Persons with Disabilities (Comité Español de Representantes de Personas con Discapacidad – CERMI), Amnesty International and the ONCE Foundation signed an agreement with the aim of tackling the needs of persons with disabilities in the promotion and protection of human rights, with a specific focus on the international protection of persons with disabilities.[8]
In 2023, UNHCR signed an agreement with the ONCE Foundation and the Spanish Committee of People with Disabilities for the inclusion of impaired persons. Moreover, the Forum “Spain with the Refugees” organised by UNHCR in advance to the Global Refugee Forum (GRF) recorded six pledges in favour of persons with disabilities, to improve access to information, assistance, referral to adequate services, and protection with a special focus on the inclusion of refugees with disabilities by strengthening their access to training and employment.[9]
In addition, the UN Agency hosted, jointly with the Council of Europe, a seminar on the Protection of asylum-seekers and refugees with specific needs. The event brought together over 400 participants and speakers from the CoE, UNHCR, NGOs, academia, and competent authorities, including the police, the Ministry of Inclusion, Social Security and Migrations, and the Asylum Office. Among the topics addressed were the Council of Europe and UNHCR standards regarding the protection of asylum seekers and refugees with specific needs, the ECtHR case law of relevance, the identification and access to procedures, the referral mechanisms and the reception system. The event served to advocate for the strengthening of the protection of asylum seekers and refugees with specific needs in Spain.[10]
Human trafficking victims
Major shortcomings are still registered regarding the treatment of trafficking victim’s cases; however, various improvements have been reported in recent years. Despite the adoption of two National Plans against Trafficking of Women and Girls for the purpose of Sexual Exploitation,[11] and of a Framework Protocol on Protection of Victims of Human Trafficking,[12] aiming at coordinating the action of all involved actors for guaranteeing protection to the victims, several obstacles still exist. The fight against trafficking is focused on girls and women trafficked for the purpose of sexual exploitation. In addition, not only is early identification of victims of trafficking very difficult, and their assistance and protection still challenging, but they also face important obstacles in obtaining international protection. The low number of identified victims of trafficking who have been granted refugee status in Spain highlights this fact. The first successful asylum claim on trafficking grounds was reported in 2009.
A report published in December 2022 by the organisation ‘Diaconía’ underlines the challenges that trafficked persons continue to face in Spain in accessing the information on asylum and the asylum procedure itself.[13] In his 2022 annual report, the Spanish Ombudsperson continues to highlight the challenges in identifying trafficked persons and in the granting them international protection.[14]
A report published by the network ‘Alarm Phone’ in January 2023 described the sexual and labour exploitation that migrants suffer in transit and destination countries around the Western Mediterranean, that is Spain, Morocco and Algeria, showing how similar conditions and mechanisms of exploitation exist on both sides of the Mediterranean and Atlantic areas.[15]
An analysis of case-studies published in May 2023 by the NGOs ‘Proyecto Esperanza’ and ‘Sicar.Cat’ on the international protection needs of trafficked persons led to a set of recommendations to improve their rights, assistance and protection, concretely the need to generate common agreements or Memorandums of Understanding (MoU) between organisations, authorities and key actors in Southern European countries, which are the gateway to the EU for refugees and migrants, and organisations, authorities and key actors located in the countries of subsequent reception. Also, a Standard Operating Procedure (SOP) for transnational referral to ensure that transnational referral procedures are coordinated, consistent and centered on the rights of the victims or potential victims needs to be established. And finally, the training of key actors should be strengthened (both traditional and non-traditional), to improve the early identification of potential victims of trafficking, in the context of asylum procedures, and their ability to refer victims or potential victims safely and quickly. Awareness of the transnational dimension of human trafficking among frontline professionals is critical to advancing access to rights for trafficked persons.[16]
In order to improve the identification and referral of trafficked persons at the Madrid Barajas Airport, the Directorate-General for Integration and Humanitarian Assistance of the Ministry of Inclusion, Social Security and Migration signed the adoption of a specific procedure in October 2019, together with the State Delegation for Gender Violence of the Ministry of the Presidency, Relation with the Parliament and Equality.[17] The new procedure foresees a collaboration framework with five NGOs working in the reception of asylum seekers and in the detection of – and assistance to – trafficked persons. The aim is to foster and guarantee a swift access to adequate support services, before and independently from their formal identification as victims of human trafficking. The NGOs participating to the procedure are the Spanish Red Cross, Proyecto Esperanza-Adoratrices, Association for the Prevention, Rehabilitation and Care for Women Prostituted (APRAMP), Diaconía and the Fundación Cruz Blanca. The initial idea was to extend the pilot project to other Spanish airports such as Barcelona and Málaga, but the Protocol was finally not formally extended.[18] Despite the lack of a formal protocol, guidelines on detection, identification, referral and coordination are in place at the airport of Barcelona among relevant actors.[19]
Concerns about the identification of trafficked persons and the need for more proactive detection of victims of trafficking among asylum seekers and migrants in an irregular situation have been highlighted by relevant international organisations, such as the Council of Europe Special Representative on Migration and Refugees,[20] and the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA).[21] They also stressed the need of providing the staff working in CETI with training on the identification of victims of trafficking in human beings and their rights.
The Spanish Network against Trafficking in Persons (Red Española contra la Trata de Personas) and the Spanish Ombudsperson agree on the fact that this is due to a malfunctioning of the protection system because the victims, after being formally identified by Spanish security forces, are given a residence permit based on provisions of the Aliens Act, instead of taking into consideration their possible fulfilment of the requirements for refugee status. The latter would of course guarantee greater protection to victims of trafficking.
Since the start of 2017, the OAR started considering Nigerian women as part of a “particular social group” according to refugee law, and as such as possible beneficiaries of international protection due to individual persecution suffered as connected to trafficking. This continues to be positively observed since then; the OAR also granted asylum to a Colombian man victim of trafficking in 2021. There were also cases, in the past years, in which refugee status was granted to persons trafficked for the purpose of labour exploitation.
In April 2021, the Government launched a public consultation for the adoption of a law on trafficking, focusing on the sexual exploitation of women and girls.[22] In 2022 the Government, through the Minister of Justice, designed and approved a proposal for a comprehensive law to address trafficking in all its forms and in relation to all victims.[23] Due to the general elections held in 2023 and the negotiations to form a new Government, the proposal was not adopted. In March 2024, the Council of Ministers adopted a new comprehensive law proposal.[24]
In December 2021, the Minister of Interior adopted the National Strategic Plan on Trafficking in Human Beings and Exploitation for the period 2021-2023, aimed at guaranteeing adequate protection and assistance to all victims of trafficking and exploitation.[25] The Plan makes reference to the Asylum Act, specifically for what concerns the differential treatment foreseen by Article 46 for certain groups – among which trafficking victims – in the asylum procedure. Additionally, the plan addresses the topic of international protection needs as regards certain trafficked persons.
Another relevant instrument adopted in the same month is the ‘National Action Plan against Forced Labour: compulsory labour relations and other forced human activities’.[26] Even though it does not explicitly refer to asylum, the Action Plan represents an important step forward in tackling forms of trafficking different from trafficking for sexual purposes, and in addressing all victims.
In 2021, the Group of Experts on Action against Trafficking in Human Beings (GRETA) of the Council of Europe started its third evaluation round of the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Spain. The country visit was carried out in July 2022[27] and the evaluation report was published in June 2023.[28] Among the recommendations made, GRETA urged the Spanish authorities ‘to put in place and operationalise a National Referral Mechanism (NRM) and to ensure that, in practice, formal identification of victims does not depend on the presence of sufficient evidence for the initiation of criminal proceedings’. It also called on the Spanish authorities to strengthen the proactive detection of victims of trafficking among asylum seekers and migrants arriving in Ceuta, Melilla and the Canary Islands.
On the occasion of the World Day against Trafficking in Persons, the Forum for the Social Integration of Migrants (Foro para la Integración Social de los Inmigrantes) asked the new Government formed following the general elections to make the fight against trafficking a priority and to increase the State budget to guarantee assistance and protection to all victims, independently of the purpose of exploitation.[29] The NGO ‘CEAR’ also called on the Government to adopt the proposal for a comprehensive law against trafficking, to put in place measures for the identification and protection of trafficked persons through multidisciplinary teams, and to guarantee trafficked persons access to the asylum procedure.[30] The same call for the adoption of the proposal for a comprehensive law against trafficking was made also by Amnesty International[31] and the Spanish Network against Trafficking in Persons[32] in May 2023.
Age assessment of unaccompanied children
A specific Protocol regarding unaccompanied children was adopted in 2014 in cooperation between the Ministries of Justice, Interior, Employment, Health and Social Services and of Foreign Affairs along with the Public Prosecutor (Fiscalía General), which aims at coordinating the actions of all involved actors in the Spanish framework in relation to unaccompanied children.[33] It should be highlighted that, due to the territorial subdivision of competences, the Protocol only represents a guidance document for all actions involving unaccompanied minors, which aims at being replicated at lower regional level. In fact, children-related issues fall within the competence of the Autonomous Regions between which governance is divided in Spain.
The Protocol sets out the framework for the identification of unaccompanied children within arrivals at sea and defines the procedure that should be followed for the conduct of age assessment procedures in case of doubts about the age of the minor.
It establishes that children’s passports and travel documents issued by official authorities have to be considered as sufficient evidence of the age of the person,[34] but it also sets out the exceptions to this rule and the cases in which the child can be considered undocumented, and accordingly be subjected to medical age assessment. These circumstances are the following:
- The documents present signs of forgery or have been corrected, amended, or erased;
- The documents incorporate contradictory data to other documents issued by the issuing country;
- The child is in possession of two documents of the same nature that contain different data;
- Data is contradictory to previous medical age assessments, conducted at the request of the public prosecutor or other judicial, administrative or diplomatic Spanish authority;
- Lack of correspondence between the data incorporated into the foreign public document and the physical appearance of the person concerned;
- Data substantially contradicts circumstances alleged by the bearer of the document; or
- The document includes implausible data.
Concerning the fourth condition relating to previous age assessments, it is important to note that these age determination tests are not precise and make an estimation of the date of birth of the young migrant, which would imply cases where the two dates of birth would never coincide. In those cases, the Protocol would justify the application of a second age assessment test and the non-consideration of the officially issued document of the person.
Medical methods and consideration of documentary evidence
Under Article 35(3) of the Aliens Act, the competence to decide on the application of medical tests aimed to remove the doubts about the majority or minority of age of undocumented children is exclusive of the Public Prosecutor’s Office. The medical assessment foresees the application of X-ray tests to assess the maturity of the minor’s bones.
When the medical test has been performed, the age of the person will match with the lower value of the fork; the day and month of birth will correspond to the date in which the test has been practiced.
These tests have resulted in very problematic age determinations and have attracted many criticisms from international organisations, NGOs[35], academics, the UN Committee on the Rights of the Child, as well as administration officers and the Spanish Ombudsperson.[36] The main concerns regard the inaccurate nature of the tests, their lack of accuracy if applied to persons with different ethnicities mainly due to the lack of professionals’ medical knowledge on the physical development of non-European minors, the lack of provision of information to the minor on how tests work and on the whole procedure. In addition, it has been proven by several documents that, while these tests limit children’s access to their dedicated protection system, they do not limit adults’ access to the minors’ system.[37] The most criticised aspect of the practical application of the tests for the determination of age is the lack of legislative coherence and the excessive discretion of the authorities.
The Law on the protection of children from violence adopted in 2021 establishes the obligation to apply the presumption of minority of age when age cannot be determined, and that integral nudes, genital explorations or other invasive examinations cannot be carried out under any circumstances.[38]
The provisions of the Protocol do not follow the recent Spanish Supreme Court ruling, which has provided clarification and the right interpretation of Article 35 of Aliens Act, which provides that “in case it is not possible to surely assess the age, tests for age determination can be used”.[39]
In this judgment, the Supreme Court ruled that, when the official documentation of the minor states the age minority, the child must be sent to the protection system without the conduct of medical tests. In the cases when the validity of the documentation is unclear, the courts will have to assess with proportionality the reasons for which the mentioned validity is questioned. In that case, medical tests can be conducted but always bearing in mind that the doubts based on the physical aspects of the minor must be read in their favour. In the same way, documented unaccompanied minor migrants cannot be considered undocumented if they hold an official document issued by their country of origin. As said above, this latter aspect is contradicted by the Protocol.
Between 2017 and 2021, the United Nations Committee on the Rights of the Child granted interim measures in cases concerning medical age assessments of unaccompanied children in Spain[40], and issued several decisions condemning Spain for its illegal practices and methodologies used for carrying out the procedure.[41]
In practice, medical age assessment procedures are used as a rule rather than as an exception, and are applied to both documented and undocumented children, no matter if they present official identity documentation or if they manifestly appear to be minors; the benefit of the doubt is also not awarded in practice. Children are also not given the benefit of the doubt if they present documentation with contradictory dates of birth.
In a decision issued in June 2020, the Spanish High Court (Tribunal Supremo) reiterated the necessity to ensure the validity of the documentation issued by Embassies and Consulates to children, in light of the principles and guidance made by the UN Committee on the Rights of the Child on age-assessments in Spain.[42]
With three decisions issued in May and June 2021, the Supreme Court (Tribunal Supremo) established the validity of the documentation of the child’s country of origin to prove his/her minority of age, also when it’s posterior to the Public Prosecutor’s decree establishing the majority, as far as the documentation is not considered forged or manipulated. It is hoped that the jurisprudence set by the Supreme Court will finally reverts the trend existing so far in Spain.[43]
As underlined by Save the Children, the main difficulties for children arriving to Spain concern their identification and age assessment and the detection of their vulnerability. Also, the presumption of minority at entry points has proven to be difficult, especially when involving adolescents or girls and boys close to turning 18. Where the border police have doubts over a child’s age, and no identification documents are provided, the children are not systematically integrated under public minor protection system until their age is assessed. This means that some of them have to wait inside CATEs (which are de facto detention centres managed by the police) until they are taken to the nearest hospital to have their age assessed through radiographies of their wrist, collarbone or teeth. The age assessment procedure (e.g. using X-ray examination) is subject to many criticisms both from scientific and civil society sectors as they are not reliable, with a margin of error of the age that can vary from down to up to 2 years.[44]
In addition, several NGOs denounce the discriminatory application of the procedure, which, for example, is always applied to Moroccan unaccompanied young migrants based solely on their nationality, and the only original documentation that is considered as valid is the one that states that the migrant has reached the major age. Some organisations have expressed their concerns and denounced the fact that most of the unaccompanied migrants are declared adults, following several applications of the tests until the result declares the person of major age.[45] In this way, the Autonomous Communities would avoid taking charge of the children.
At the beginning of 2021, the Spanish Ombudsperson translated into several languages an animated video elaborated by the EUAA and the Council of Europe on age assessment procedures that must respect and comply with children rights standards. It was translated into Wolof, Bambara and the Moroccan Arabic.[46] The Spanish Ombudsperson shared the video with all relevant authorities involved in identifying and protecting children, and recommended its use in particular on the Canary Islands.
In April 2022 the Government adopted the law proposal for the regulation of the age assessment procedure which provides, i.e., for the establishment of the presumption of minority age while the procedure is on-going, for the realisation of a civil judicial procedure instead of an administrative one, for guaranteed legal assistance during the procedure, and the prohibition of invasive methods, such as integral nudes and genital examinations.[47] Civil society organisations welcomed the law proposal as it improves the existing situation, but they consider that some modifications should be made, for it to be fully in line with existing jurisprudence as well as with the recommendations made by the UN Committee on the Rights of the Child.[48] Similarly, while welcoming the proposal, Save the Children stressed that there it still raises some concerns, such as the provision regarding the urgency of the procedure which leads to tight deadlines, the lack of mandatory request of child documentation to consulates and embassy of origin, the impossibility to appeal and change the results of the evaluation. Additionally, it highlighted the possible obstacles to the application of the presumption of minority age when children have just arrived by sea and are detained within CATE where no lawyers nor guardians are appointed have been underlined.[49]
In view of the General Elections, the Platform for Childhood (Plataforma de Infancia) and UNICEF sent to the political parties a set of proposals, which includes, among others, the call to reform the age assessment procedures.[50]
Within the reporting procedure of the UN Committee for the Rights of the Child, one of the questions presented to the Spanish Government in the List of Issues Prior to Reporting refers to the measures put in place to end with the human rights violations that occur with the age assessment procedure.[51]
At the end of 2022, the Constitutional Court (Tribunal Constitucional) examined a case regarding appealing against age assessment decisions. The court considered that the opportunity to challenge an age assessment decision was a requirement for the right to effective judicial protection to be upheld.[52]
Other obstacles in practice
The Protocol does not foresee legal assistance for minors from the moment they come into contact with the authorities. The minor, who is in charge of signing the authorisation to be subjected to the tests of age determination, can only count on the right to an interpreter to explain to him or her the procedure. On the contrary, the possibility to be assisted by a lawyer is not foreseen.
It should be highlighted that one of the main problems regarding the age of unaccompanied children, and in particular those arriving in Ceuta and Melilla, is the fact that many prefer to declare themselves as adults because of the deficiencies of the minors’ protection system and the restriction of movement to which they are subject in the two autonomous cities. This means that unaccompanied children prefer to be transferred to the Spanish peninsula as adults, thereby not being able to access the ad hoc protection system there, instead of remaining as children in Ceuta and Melilla. Once in the peninsula, these children find it almost impossible to prove they are minors as they have already been registered and documented as adults.
Due to the increase of arrivals to the Canary Islands, the time needed to carry out age assessment procedures significantly increased in 2020.[53] These issues persisted at the beginning of 2021 as thousands of children continued to be accommodated in adult reception facilities pending the age assessment procedure.[54] The Government of Canarias had already urged the Autonomous Communities in November 2020 to relocate around 500 unaccompanied children; the first relocations were carried out from March 2021.[55] Regardless, transfers carried out throughout 2021 have not been sufficient to solve the situation, as just 208 minors were transferred to mainland. At the beginning of 2022, 2,600 unaccompanied migrant children were still under the protection of the Canary Islands.[56] In May 2022, 976 children (40% of the children under the guardianship of the Autonomous Community) continued to wait their age assessment.[57]
Similarly, Save the Children asked the Government to urgently act to protect migrant children arriving to the Canary Islands and to speed up their transfer to mainland, inter alia by adopting a protocol on sea arrivals adapted to children’s needs.[58] One of the main reasons for the delay in age assessment procedures seems to be the lack of human resources.[59] In order to speed up the tests, the Public Prosecutor of Gran Canaria authorised the possibility to carry out age assessments in private medical centres.
In May 2022, the UNHCR Representative for Spain expressed concern for the situation of the more than 2,300 unaccompanied children under the guardianship of the Autonomous Community of the Canary Islands, and on the challenges they face in accessing asylum, especially considering that many of them are fleeing conflict in their countries, such as Mali.[60]
In February 2024, a judge decided to release a Senegalese migrant who had been detained for almost60 days for allegedly having driven illegally a boat to the Canary Islands, by declaring him as a minor. The child had declared to be a minor and provided his birth certificate to competent authorities; regardless, he had been assessed as an adult after age assessment procedure.[61] The Ombudsperson of the Canary Islands opened an investigation to clarify the situation occurred, and urged the Government of the archipelago to carry out in an immediate timeframe since the arrival. To this date, 5,500 migrant children are waiting for the result of their age assessment procedures.[62]
In February 2024, the UN Committee on the Rights of the Child urged Spain to transfer to a minors’ reception facility a 14 years old unaccompanied child from Gambia who had been living on the street for four days in the Autonomous Community of Madrid. Despite providing his birth certificate, his passport and his childlike appearance, he was treated as an adult and left in a situation of abandonment.[63]
Regarding unaccompanied children in need of international protection, UNHCR conducted trainings directed at more than 1,000 professionals from central and regional government and NGOs working in child protection centres, resulting in an increased sensitivity and attention to their specific needs and enhanced collaboration among relevant actors to speed up their referrals to the asylum procedure. UNHCR, with the support of the University of Comillas, developed a Practical Guide for Professionals working with Unaccompanied and Separated Refugee Children, a practical tool for professionals who play a role in the protection and assistance of refugee children arriving in Spain, and started its dissemination with the police, child protection services, the Office for Asylum and Refugee (OAR), NGOs and lawyers.[64]
As the 2021 Public Prosecutor annual report underlined, despite the efforts put in place by the competent institutions, 1,064 decisions on age assessments were still pending in 2021.[65] A report published by UNICEF informs that, at the beginning of July 2021, out of 2,528 presumed minors under the guardianship of the government of the Canary Islands, 1,753 children were still waiting for their age to be assessed.[66]
In a hearing in front of the Senate in April 2021, the Spanish Ombudsperson requested all the Autonomous Communities to collaborate and to show solidarity in the protection and reception of unaccompanied migrant children who arrived at the Canary Islands. Nine Autonomous Communities (Cataluña, Navarra, Cantabria, Valencia, Castilla y León, Extremadura, Galicia, Asturias and Aragón) accepted to take in 200 children[67]. The Ombudsperson also stressed the necessity for the Public Prosecutor Office to reform the age assessment procedure, in order to accelerate it.[68]
Statistics on age assessments are always published in the month of September of the following year: i.e. figures on 2023 will only made available in September 2024. From 2017 to 2022, the Prosecutor concluded the following age assessment examinations:
| Age assessments by outcome: 2017-2022 | ||||||
| Type of decision | 2017 | 2018 | 2019 | 2020 | 2021 | 2022 |
| Total assessments conducted | 5,600 | 12,152 | 7,745 | 5,038 | 6,677 | 4,805 |
| Determined as adult | 2,205 | 3,031 | 2,477 | 1,562 | 1,654 | 1,264 |
| Determined as minor | 2,751 | 4,558 | 3,732 | 2,446 | 3,245 | 2,163 |
| Cases filed | 644 | 4,563 | 1,037 | 855 | 1,778 | 1,378 |
Source: Fiscalía General del Estado, 2018, 2019, 2020, 2021 and 2022 Activity reports: https://cutt.ly/NrqsfgZ, https://bit.ly/3nDnGsF, https://bit.ly/3eMepwr, https://bit.ly/3RuAXDV and https://tinyurl.com/46a2ae2j.
Registration of unaccompanied minors
Another important issue relates to the registration of unaccompanied minors, and over the years different organisations and bodies (i.e. Ombudsperson) have raised concerns on the issue. In March 2019, the National Court ruled that the conditions for the registration of Spanish children before municipalities must be equally applied to foreign children. The claim had been lodged by the NGO Caritas-Spain,[69], and resulted in a decision of the Supreme Court (Tribunal Supremo) in April 2022, establishing that the requirement of a visa for registration of Moroccan children was illegal and discriminatory compared to Spanish children or children of other nationalities.[70] Despite that, in October 2022 the NGO ‘Solidarity Wheels’ warned that the authorities in Melilla continued to ask for a visa in order to register Moroccan children.[71]
In view of the reform of the Ruling of the Immigration Law, in early 2021 different organisations presented a set of proposals for reforming the provisions related to unaccompanied migrant children, especially regarding their registration and documentation in order to ensure their effective integration in Spain.[72] The reform was finally adopted in October 2021. It facilitates access to residence and work permits for unaccompanied migrant children, as well as those for who arrived as children and aged out and are between 18 and 23 years old, and allows access to work also for children turning 16.[73] The change is expected to improve living conditions and integration prospects for thousands of young people. From the entry into force of the reform in November 2022 until 30 June 2023, a total of 16,211 children and young adults aged between 16 and 23 years old had a residence permit. In addition, the 60% of them were in the labour register.[74]
[1] Article 46(2) Asylum Act.
[2] Articles 34-35 Asylum Act.
[3] CEAR, Informe 2020, Las personas refugiadas en España y en Europa, June 2020, available in Spanish at: https://bit.ly/3nyl3bM, 89.
[4] Information provided by Save the Children on March 2023.
[5] Servimedia, Acnur y Cermi coinciden en reforzar la perspectiva de discapacidad en las situaciones de protección internacional, 15 December 2020, available in Spanish at: https://bit.ly/39sBktB.
[6] Comité Español de Representantes de Personas con Discapacidad – CERMI, ‘¡Tengo derechos humanos! Garantías para la igualdad de trato y no discriminación de las personas refugiadas, apátridas y solicitantes de asilo y apatridia con discapacidad’, May 2021, available at: https://bit.ly/3HWmRp4.
[7] Servicio de Información sobre Discapacidad, ‘ Derechos Sociales pide un sistema de protección internacional inclusivo y respetuoso con las personas refugiadas con discapacidad’, 21 June 2023, available in Spanish at: https://tinyurl.com/4ys65472; Observatorio de la Discapacidad, ‘Las personas con discapacidad en situación de protección internacional en España: situación, desafíos y propuestas’, available in Spanish at: https://tinyurl.com/mt2b9tcv.
[8] El Derecho, ‘Alianza entre CERMI, Amnistía Internacional y Fundación ONCE’, 5 July 2023, available in Spanish at: https://tinyurl.com/58mz5rrk.
[9] Information provided by UNHCR in April 2024.
[10] Information provided by UNHCR in April 2024.
[11] Ministry of Health, Social Services and Equality, Plan Integral De Lucha Contra La Trata De Mujeres Y Niñas Con Fines De Explotación Sexual, 2015-2018, available in Spanish at: https://bit.ly/2E3Moks.
[12] Framework Protocol of 2011 against trafficking (“Protocolo Marco de Protección de las Víctimas de Trata de Seres Humanos”), available in Spanish at: http://bit.ly/1S8FPud.
[13] Diaconía, ‘Informe de análisis de la situación de las víctimas de trata de personas en necesidad de protección internacional en España’, December 2022, available in Spanish at: https://bit.ly/406qceN.
[14] Defensor del Pueblo, ‘Informe anual 2022 – Volumen 1’, March 2023, available in Spanish at: https://bit.ly/3ZJ4U7p, 194; Europa Press, ‘España carece de herramientas ágiles para identificar a víctimas de trata, según el Defensor del Pueblo’, 13 March 2023, available in Spanish at: https://bit.ly/3JEwFZ0.
[15] Alarm Phone, “They only give us the really hard jobs” – the exploitation of migrant labour in transit and destination countries around the Western Mediterranean’, 8 January 2023, available at: https://bit.ly/4bus33I.
[16] Proyecto Esperanza, Sicar.Cat, ‘Análisis de casos de trata transnacionales en la Unión Europea’, May 2023, available in Spanish at: https://tinyurl.com/2ua42xj7.
[17] Ministerio de Trabajo, Migraciones y Seguridad Social, ‘El Gobierno pone en marcha un procedimiento de derivación de potenciales víctimas de trata de seres humanos en el aeropuerto de Barajas’, 15 October 2019, available in Spanish at: https://cutt.ly/Xe79s1H.
[18] Information provided by Fundación Cruz Blanca, 11 January 2021.
[19] Information provided by Fundación Apip-Acam in March 2023.
[20] Council of Europe, Report of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees, to Spain, 18-24 March 2018, SG/Inf(2018)25, 3 September 2018, available at: https://bit.ly/3SFhUJV.
[21] GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Spain – Second Evaluation Round, GRETA(2018)7, 20 June 2018, available at: https://bit.ly/2RzTKCW.
[22] Ministerio de Igualdad, ‘Consulta pública previa a la elaboración de un proyecto normativo consistente en una ley integral contra la trata’, April 2021, available in Spanish at: https://bit.ly/34IxT3S.
[23] Ministerio de Justicia, ‘El Gobierno aprueba el Anteproyecto de Ley Orgánica Integral contra la Trata’, 29 November 2022, available in Spanish at: https://tinyurl.com/yfzw4wvn
[24] El Diario, ‘El Gobierno aprueba el anteproyecto de ley de trata que dará permiso temporal de residencia a las víctimas sin necesidad de denuncia’, 8 March 2024, available at: https://tinyurl.com/2xhc6zdx
[25] Gobierno de España, Presidencia del Gobierno, ‘Interior presenta el Plan Estratégico Nacional contra la Trata y la Explotación de Seres Humanos 2021-2023’, December 2021, available in Spanish at: https://bit.ly/35t9u2k.
[26] Boletín Oficial del Estado (BOE), ‘Resolución de 20 de diciembre de 2021, de la Secretaría de Estado de Empleo y Economía Social, por la que se publica el Acuerdo del Consejo de Ministros de 10 de diciembre de 2021, por el que se aprueba el Plan de Acción Nacional contra el Trabajo Forzoso: relaciones laborales obligatorias y otras actividades humanas forzadas’, 20 December 2021, available in Spanish at: https://bit.ly/3hdxY22.
[27] Council of Europe, ‘GRETA carries out third evaluation visit to Spain’, 4-8 July 2022, available at: https://bit.ly/3Y3I5K6.
[28] Group of Experts on Action against Trafficking in Human Beings (GRETA), Council of Europe, Evaluation report – Spain – Third evaluation round – Access to justice and effective remedies for victims of trafficking in human beings, 12 June 2023, available at: https://bit.ly/3SCIUtG.
[29] Ministerio de Inclusión, Seguirdad Social y Migraciones, ‘Declaración del Foro para la Integración Social de los Inmigrantes (FISI) sobre el día mundial contra la trata de seres humanos’, 30 July 2023, available in Spanish at: https://tinyurl.com/utmazv7b
[30] CEAR, ‘Detectar e Identificar a las víctimas de trata, un paso urgente para acabar con esta lacra’, 28 July 2023, available in Spanish at: https://tinyurl.com/mu2azp53
[31] Amnistía Internacional, ‘AI: Por una Ley Integral contra la Trata de Seres Humanos’, 16 May 2023, available in Spanish at: https://tinyurl.com/2mrwbk2k
[32] Servimedia, ‘Unas 30 ONG piden “urgencia” al Gobierno para aprobar la Ley de Trata esta legislatura’, 16 May 2023, available in Spanish at: https://tinyurl.com/4tnbd2n6.
[33] Framework Protocol of 13 October 2014 on actions relating to foreign unaccompanied minors, available in Spanish at: http://bit.ly/1WQ4h4B.
[34] Chapter II, para 6 Protocol on Unaccompanied Minors.
[35] Plataforma de Infancia, “El informe de aportaciones a la Lista de Cuestiones Previa a la Presentación de Informes (LOIPR) en el marco del VII Ciclo del procedimiento de informes periódicos a España ante el Comité de Derechos del Niño”, October 2022, available in Spanish at: https://bit.ly/3Jd40sF, 25.
[36] Defensor del Pueblo, ‘Informe anual 2022 – Volumen 1’, March 2023, available in Spanish at: https://bit.ly/3ZJ4U7p, 166.
[37] Clara Isabel Barrio Lema, María José Castaño Reyero and Isabel Diez Velasco, Instituto Universitario de Estudios sobre Migraciones, Universidad Pontificia Comillas, ‘Colectivos vulnerables en el sistema de asilo’, December 2019, available in Spanish at: https://cutt.ly/3r13JP5.
[38] Diario La Ley, ‘La nueva ley de la infancia prohíbe los desnudos integrales a menores migrantes para determinar su edad’, 13 May 2021, available in Spanish at: https://bit.ly/3i7tsCM.
[39] Supreme Court, Judgment No 453/2014, 23 September 2014, available in Spanish at: http://bit.ly/1QD7YGj. See EDAL summary at: http://bit.ly/1n40OTM.
[40] OHCHR, Table of pending cases before the Committee on the Rights of the Child, available at: https://bit.ly/2R00THz; EU Observer, ‘Spain turns its back on migrant children’s rights’, 7 August 2017, available at: http://bit.ly/2vaQG31.
[41] For more detailed information, see previous updates to this country report at: https://bit.ly/4bfSkT0. El País, ‘La ONU reprende a España por devolver en caliente a un menor’, 19 February 2019, available in Spanish at: https://bit.ly/2TT6BNv; ECCHR, ‘Spanish practice of push-backs violates children’s rights’, 19 February 2019, available at: https://bit.ly/2Em0o7z; Committee on the Rights of the Child, N.B.F. v. Spain, CRC/C/79/D/11/2017, 27 September 2018, available in Spanish at: https://bit.ly/2RzNpXZ; Committee on the Rights of the Child, A.L. v. Spain, CRC/C/81/D/16/2017, 31 May 2019, available at: https://bit.ly/2NPuJzB; Committee on the Rights of the Child, J.A.B. v. Spain, CRC/C/81/D/22/2017, 31 may 2019, available at: https://bit.ly/2uo2G3c; See EDAL summay at: https://bit.ly/2NN5u0X; United Nations, Noticias ONU, Comité de la ONU: El método usado para evaluar la edad de los migrantes en España viola la Convención de los Derechos del Niño, 13 October 2020, available in Spanish at: https://bit.ly/2MT2H8O; United Nations – Human Rights Office of the High Commissioner, Spain’s age assessment procedures violate migrant children’s rights, UN committee finds, 13 October 2020, available in Spanish at: https://bit.ly/3i01oQW; Consejo General de la Abogacía Española, La ONU condena a España por someter a una niña a una exploración genital para determinar su edad, 25 February 2021, available in Spanish at: https://bit.ly/3gn7gUw.
[42] Tribunal Supremo, Sala de lo Civil, Decision nº 307/2020, 16 June 2020, available in Spanish at: https://bit.ly/38z1Na0; Consejo General de la Abogacía Española, El Tribunal Supremo zanja la problemática de la determinación de la edad de los niños y niñas que llegan solos a España, 25 June 2020, available in Spanish at: https://bit.ly/3ozvJIh.
[43] Tribunal Supremo, STS 2164/2021, 24 May 2021, available in Spanish at: https://bit.ly/3IlgT1B; Tribunal Supremo, STS 2400/2021, 21 June 2021, available in Spanish at: https://bit.ly/3AeH8E6; Tribunal Supremo, STS 2551/2021, 18 June 2021, available in Spanish at: https://bit.ly/3nJg2jr.
[44] Information provided by Save the Children, 1 April 2020.
[45] Fundaciòn Raices, Solo por estar solos, 2014, available in Spanish at: http://bit.ly/211pBFo.
[46] Defensor del Pueblo, ‘Determinación de la edad de menores extranjeros indocumentados’, 15 January 2021, available in Spanish at: https://bit.ly/3bkLw8O.
[47] Ministerio de Justicia, ‘El Consejo de Ministros aprueba el Anteproyecto de Ley por el que se Regula el Procedimiento de Evaluación de la Edad’, 12 April 2022, available in Spanish at: https://bit.ly/3mMIXWi.
[48] Plataforma de Infancia, ‘Organizaciones sociales proponemos modificaciones al Anteproyecto de Ley sobre el procedimiento de evaluación de la edad de los niños y niñas no acompañados’, 10 May 2022, available in Spanish at: https://bit.ly/3JAhaAj.
[49] Information provided by Save the Children in March 2023.
[50] Plataforma de Infancia, ‘Propuestas de Infancia para programas electorales Elecciones Generales 2023’, June 2023, available at: https://bit.ly/3THv2gQ; UNICEF, ‘En estas elecciones, gana la infancia. Contribución de UNICEF España a los Programas Electorales’, June 2023, available in Spanish at: https://tinyurl.com/46p445t3.
[51] Plataforma de Infancia, ‘El Comité de los Derechos del Niño insta al Gobierno de España a proporcionar información sobre medidas de apoyo a la crianza’, 1 March 2023, available at: https://bit.ly/3mPMa7A.
[52] Tribunal Constitucional de España, SENTENCIA 130/2022, de 24 de octubre, (BOE núm. 288, de 01 de diciembre de 2022), ECLI:ES:TC:2022:130, available in Spanish at: https://tinyurl.com/2n8j7wwa.
[53] Fundamental Rights Agency (FRA), ‘Migration: key fundamental rights concerns. 1.10.2020-31.12.2020. Quarterly bulletin’, 2021, available at https://bit.ly/3Hw89FC.
[54] El Diario, ‘Más de 1.000 migrantes siguen en un limbo y sin escolarizar a la espera de que las pruebas óseas determinen si son mayores de edad’, 25 January 2021, available in Spanish at: https://bit.ly/3b9f0WY.
[55] Canarias7, ‘Canarias comienza el traslado de menores extranjeros no acompañados a la Península’, 11 March 2021, available in Spanish at: https://bit.ly/3i6uLBP.
[56] Europa Press, ‘Torres pedirá “más compromiso” a las CCAA en la Conferencia de Presidentes con el traslado de menores migrantes’, 28 January 2022, available in Spanish at: https://bit.ly/3t5phxA.
[57] Canarias7, ‘El 40% de los menores sigue pendiente de las pruebas de edad’, 30 May 2022, available in Spanish at: https://bit.ly/3JFcKcg.
[58] La Vanguardia, ‘Save The Children pide agilizar el traslado de niños migrantes a la península’, 11 February 2021, available in Spanish at: https://bit.ly/3diSDRH.
[59] El Día, ‘Una letrada alerta de la falta de personal para fijar la edad real de los inmigrantes’, 1 February 2021, available at: https://bit.ly/2ZwcoNp.
[60] El País, ‘La representante de Acnur en España: “Los recursos para pedir asilo no están a la altura”’, 16 May 2022, available in Spanish at: https://bit.ly/3Pp9bXD.
[61] El Diario, ‘El juez ordena la inmediata puesta en libertad de un migrante senegalés tras dos meses en prisión al acreditarse que es menor’, 16 February 2024, available at: https://tinyurl.com/2h68wm5f.
[62] Cadena Ser, ‘El Defensor del Pueblo canario abre una investigación para esclarecer la situación de los menores en prisión’, 16 February 2024, available at: https://tinyurl.com/2ep2zv4r.
[63] El Diario, ‘El menor gambiano que ha acudido a la ONU tras acabar en la calle en España: “Me sentí solo y distinto a los otros”’, 23 February 2024, available at: https://tinyurl.com/42vn9tkf; El Diario, ‘La ONU exige a España que acoja a un niño migrante de 14 años abandonado en Madrid en la calle desde hace 4 días’, 15 February 2024, available at: https://tinyurl.com/3883b2hh.
[64] Information provided by UNHCR in March 2023.
[65] Fiscalía General del Estado, ‘Memoria de la FGE 2022 (Ejercicio 2021)’, September 2022, available in Spanish at: https://bit.ly/3mSwiBn.
[66] UNICEF, ‘Canarias: Niños y niñas migrantes en una de las rutas más peligrosas del mundo’, July 2021, available in Spanish at: https://bit.ly/3pUjYPK, 20.
[67] Newtral, ‘Canarias apela a la “solidaridad obligatoria” para repartirse la tutela de menores extranjeros no acompañados’, 25 August 2021, available in Spanish at: https://bit.ly/3TewzKQ.
[68] Defensor del Pueblo, ‘El Defensor pide a todas las administraciones que se impliquen en la acogida de los menores extranjeros no acompañados’, 27 April 2021, available in Spanish at: https://bit.ly/3suhlba.
[69] Audiencia Nacional, ‘Sala de lo Contencioso-Administrativo, Sección Séptima, nº recurso 770/2017’, 28 December 2018, available in Spanish at: https://cutt.ly/brc1ryQ.
[70] Tribunal Supremo. Sala de lo Contencioso, Decision nº 473/2022, 25 April 2022, available in Spanish at: https://tinyurl.com/375j45ah.
[71] El Salto Diario, ‘Melilla: ¿se cumple el derecho de la infancia migrante a empadronarse?’, 25 April 2023, available in Spanish at: https://tinyurl.com/3y73sfzk.
[72] La Merced Migraciones, ‘Garantizar el derecho a documentarse de los niños y niñas que llegan solos a España’, February 2021, available in Spanish at: https://bit.ly/2ZEDsKo.
[73] PICUM, ‘Spain adopts law to facilitate regularisatuon of young migrants’, 18 November 2021, available at: https://bit.ly/3mUBDrx.
[74] Ministerio de Inclusión, Seguirdad Social y Migración, Observatorio Permanente de la Inmigración, ‘Menores no acompañados y jóvenes extutelados con autorización de residencia’, available in Spanish at: https://tinyurl.com/3mccsz53.