Identification

Spain

Country Report: Identification Last updated: 21/04/22

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 in practice are conducted by asylum officers or police officers during the conduct of the asylum interview with the applicant, 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 has exacerbated difficulties in the identification of vulnerabilities. The OAR does not collect disaggregated statistics on vulnerable groups.

The role of UNHCR should also be highlighted, as it 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 CIE 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 2021. Vulnerable groups such as single women, families with children, trafficked persons, 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. The persistent claim by many NGOs and other stakeholders is that those identified as being vulnerable should be quickly transferred to mainland in order to access protection in more adequate facilities.

As regards 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). This is not the case in practice, however, UNHCR and CEAR in an implementing partner role started a project in August 2018, aimed at supporting authorities in the identification of persons arriving by boat in Andalucía.[4] More specifically, the teams of both organisations are in charge of providing legal information to persons arriving by boat, as well as detecting persons with vulnerabilities and special needs i.e. asylum seekers, children, trafficked persons, etc. Also, 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. The organization also has a child friendly space at the land border in Melilla since 2014.[5]

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.[6] Guidelines to guarantee equal treatment and no discrimination of asylum seekers, statelessness applicants, refugees and stateless people with disabilities were published in May 2021.[7]

Positive developments reported in 2020 regarding identification of vulnerabilities relate 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. Such positive aspects continued to be registered in 2021.

Human trafficking victims

Major shortcomings regard victims of trafficking. Despite the adoption of two National Plans against Trafficking of Women and Girls for the purpose of Sexual Exploitation,[8] and of a Framework Protocol on Protection of Victims of Human Trafficking,[9] 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 by Accem in November 2019 underlined that the identification of trafficked persons is one of the main challenges existing in Spain, and that the procedure relies inter alia on the auto-identification by the victim as well as on his or her collaboration to the investigation and prosecution of the crime.[10] Moreover, a report published by CEAR-Euskadi in June 2019 acknowledges that improvements have been made since 2016 in the granting of international protection to trafficked persons thanks to a change of policy of the OAR, but the NGOs estimates that the recognition rate is still too low considering the dimension of the phenomenon in Spain.[11]

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.[12] 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 in the future, e.g. in Barcelona and Málaga. However, as of the end of 2020 and according to available information, the Protocol has not been extended so far.[13]

Moreover, at the end of October 2019, the NGO CEAR reported that, despite being detected as victims of human trafficking by a specialised NGO at the Madrid airport, and despite the recommendations of the Spanish Ombudsman to avoid their repatriation due to the risks they could face, two young Vietnamese girls had been returned back to their home country.[14] The Spanish Ombudsman further reported in its Annual Report of 2019, published in 2020, that despite the existence of such Protocols, the Commissariat-General of Foreigners and Borders never activated the procedure foreseen in order to identify and protect presumed trafficked persons in 2019.[15].

In its 2020 report, the NGO CEAR expresses concerns about the change of criteria in detecting trafficked persons in need of international protection at Madrid-Airport by the National Police, as well as regarding the fact that almost all applications of international protection lodged by presumed trafficked persons are rejected by the OAR.[16]

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,[17] and the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA).[18] 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 Ombudsman 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.

The situation and the OAR’s attitude on this topic have started to change from the last months of 2016 and January 2017. In that period, 12 sub-Saharan women and their children were granted international protection.[19] Since then, the criteria adopted by the OAR have changed and the Office considers Nigerian women a “particular social group” according to the refugee definition, thus possible beneficiaries of international protection due to individual persecution 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.

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.[20]

During the World Day against Trafficking in Persons, the Spanish Ombudsman called for an improvement of the protocols to identify trafficked persons, also stressing the necessity to realise specific trainings focusing on interviewing presumed trafficked persons within the asylum procedure.[21]

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.[22] 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’.[23] 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 will be carried out in 2022.[24]

 

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.[25] 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,[26] 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,[27] NGOs, academics, as well as administration officers and the Spanish Ombudsman.[28] The main concerns regard the inaccurate nature of the tests, their ethnic irrelevance 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.[29] 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 minor age when age cannot be determined, and that integral nudes, genital explorations or other invasive examinations cannot be carried out under any circumstances.[30]

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”.[31]

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 his or her 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.

The United Nations Committee on the Rights of the Child granted interim measures in cases concerning medical age assessments of unaccompanied children in 2017.[32] In February 2019, the Committee adopted a decision condemning Spain for the illegal practice and establishing the obligation to compensate the applicant.[33]

On 27 September 2018, the Committee on the Rights of the Child issued an opinion in N.B.F. v. Spain,[34] providing relevant guidance on age assessment. In particular, it stressed that, in the absence of identity documents and in order to assess the child’s age, states should proceed to a comprehensive evaluation of the physical and psychological development of the child and such examination should be carried out by specialised professionals such as paediatricians. The evaluation should be quickly carried out, taking into account cultural and gender issues, by interviewing the child in a language he or she can understand. States should avoid basing age assessment on medical examinations such as bone and teeth examinations, as they are not precise, have a great margin of error, can be traumatic and give rise to unnecessary procedures.

On 31 May 2019, the United Nations Committee on the Rights of the Child (UNCRC) decided in two separate cases on age assessments conducted on unaccompanied children, A.L.[35] and J.A.B.,[36] in Spain, thus providing relevant elements on the age assessment procedure carried out by Spanish authorities.[37]

In the case A.L. v. Spain, the Committee recalled that the determination of the age of a young person claiming to be a minor is of fundamental importance, since the outcome determines whether that person will be entitled to protection as a child and the rights that flow from this, or will be excluded from such protection. With reference to General Comment No. 6, the Committee held that both physical appearance and psychological maturity have to be taken into account and that the assessment must be based on scientific criteria with consideration of the best interests of the child. In cases of uncertainty, the individual should be given the benefit of the doubt, so that, in the case of a child, they are treated as such. With regard to legal representation, the Committee held that the appointment of a legal guardian or a representative is an essential guarantee during the age assessment process. The denial of access to legal representation constitutes a violation of the right to be heard. In light of the above, the Committee found a violation of both applicants’ rights under Articles 3 and 12 of the Convention on the Rights of the Child.

In respect of J.A.B., the Committee held that Spain had failed to protect him against his situation of helplessness, particularly given his high degree of vulnerability as a minor who is a migrant, unaccompanied and ill. The Committee noted that this lack of protection occurred even after the author submitted identity documents to the Spanish authorities confirming that he was a child. The Committee considered that this constituted a violation of Articles 20 (1) and 24. The Committee further ruled that   Spain now has an obligation to avoid similar violations through ensuring age assessments are conducted in conformity with the Convention, that the procedures take into account the documentation presented and that legal representation is allocated.

During 2020, the Committee reiterated its concerns regarding age assessment procedures in Spain and their violation of the UN Convention on the Rights of the Child.[38] It affirmed that, in 14 cases assessed and decided by the Committee, Spain failed to carry out a proper age assessment procedure. It also recalled UNHCR’s information according to which the method (i.e. radiography) used in Spain presents a margin of error of four years. In addition, the Committee underlined that identity documents, if available, should be considered valid unless there is proof of the contrary, and that the best interests of the child must be a primary consideration throughout the age determination process.

In 2021, once more the UN body condemned Spain for how age assessment are carried out and for violating unaccompanied children rights, when obliging a girl to go under genital examination for assessing her age.[39] The decision referred to the case of a 16-year-old Cameroonian girl who escaped forced marriage and sexual abuses.

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 several cases in Madrid Barajas Airport in 2017, children with identity documents stating their minority were registered as adults because they were travelling with a (false) passport declaring them over the age of 18.[40] Children who are declared adults while their country of origin documentation states they are children are expelled from both child and adult protection due to the inconsistency between the age sets stated in their documentation. This practice persisted in 2020, and many stakeholders continue to denounce it, in particular the organisation Fundación Raices, which is also one of the main applicants of cases both at national level and in front of the UN Committee on the Rights of the Child.[41]

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 having the minors in their charge.

In order to guarantee unaccompanied children effective access to justice, the Spanish Ombudsman issued a recommendation to the State General Prosecutor (Fiscal General del Estado).[46] The Ombudsman recommended the adoption of an instruction providing that, in the context of the procedure to assess the age of a person issued an expulsion order, public prosecutors shall issue the decree establishing the person’s majority before removal is executed. The authorities have rejected the recommendation in 2019, however.

During a hearing at the Senate in July 2020, the Spanish Ombudsman reported again the persisting problems in relation to age-assessment and DNA tests at CETIs and CIEs.[47] In particular, the body expresses concern about the excessive delays in DNA tests, which may result in the separation of families and summary expulsions.

At the beginning of 2021, the Spanish Ombudsman translated into several languages an animated video elaborated by EASO 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.[48] The Spanish Ombudsman shared the video with all relevant authorities involved in identifying and protecting children, and recommended its use in particular on the Canary Islands.

Other obstacles in practice

Finally, 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. UNICEF reported the presence of about 2,200 unaccompanied migrant children in November 2020.[49] 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.[50] 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.[51] 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.[52]

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.[53] One of the main reasons for the delay in age assessment procedures seems to be the lack of human resources.[54] 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.

As the 2020 Public Prosecutor’s annual report underlines, due to the inadequacy and unpreparedness of the services at the Canary Islands faced with the large number of arrivals, at the end of 2020 1,076 decisions on age assessments were still pending (being 400 in Tenerife).[55] 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.[56]

In a hearing in front of the Senate in April 2021, the Spanish Ombudsman 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. The Ombudsman also stressed the necessity for the Public Prosecutor Office to reform the age assessment procedure, in order to accelerate it.[57]

Statistics on age assessments are always published in the month of September of the following year; i.e. figures on 2021 will only made available in September 2022. From 2015 to 2020, the Prosecutor concluded the following age assessment examinations:

Age assessments by outcome: 2014-2020
Type of decision 2015 2016 2017 2018 2019 2020
Total assessments conducted 2,539 2,971 5,600 12,152 7,745 5,038
Determined as adult 888 1,243 2,205 3,031 2,477 1,562
Determined as minor 1,033 1,365 2,751 4,558 3,732 2,446
Cases filed 615 363 644 4,563 1,037 855

Source: Fiscalía General del Estado, 2016, 2017, 2018, 2019, and 2020 Activity reports: http://bit.ly/2muOQEL, https://bit.ly/2zN1VAB, https://cutt.ly/NrqsfgZ, https://bit.ly/3nDnGsF, and https://bit.ly/3eMepwr.

 

Registration of unaccompanied minors

Another important issue relates to the registration of unaccompanied minors. In March 2019, the National Court ruled that the conditions for the registration of Spanish children at municipalities must be equally applied to foreign children. The claim had been lodged by the NGO Caritas-Spain.[58] The Ombudsman has also raised concerns in June 2019 regarding the inaccuracy of the register of unaccompanied minors and highlighted the deficiencies resulting from age assessment procedures, in particular regarding girls.[59]

In September 2019, the Prosecutor General’s Office (Fiscalía General del Estado) adopted an internal circular addressed to all public prosecutors regarding the grant of residence permits to unaccompanied children. The circular foresees the obligation for all public prosecutors to apply the law and thus to grant a residence permit to unaccompanied children at regional level and to lodge a claim against Delegations and Sub-delegations of the Government that, without justified reasons, refuse to submit such permits.[60]

Although the law foresees that unaccompanied children must be granted a residence permit upon their arrival in Spain,[61] at least 10,000 unaccompanied children falling under the protection of the Autonomous Communities were found to be undocumented in 2019.[62]

In October 2019, the Ombudsman highlighted the necessity to improve the protection of children who arrive in Spain irregularly and are accompanied by adults.[63] The issues identified by the Ombudsman relate inter alia to the dysfunctions of the registration of children who arrive in Spain, the necessity to establish identification mechanisms for children at risk (e.g. of human trafficking) as well as the importance of establishing swift procedures facilitating the coordination amongst relevant authorities. The ten Spanish Ombudsmen and Ombudswomen agreed to sign a common declaration calling on the public authorities to implement a national strategic plan to assist migrant children.[64]

In view of the reform of the Ruling of the Immigration Law, different organisations presented in early 2021 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.[65]

In a report published in February 2021, Save the Children and the Fundación porCausa indicated that there were almost 147,000 children in an irregular situation in Spain in 2019.[66] Almost one third of them is over 15 years-old, and the vast majority come from Latin America. 43% of them are from Africa, but they only represent 13% of the total. The report also underlines the consequences of their irregular situation, such as the high risks of poverty, as well as the serious difficulties in accessing financial supports, health, education, justice, etc.

 

 

 

[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] CEAR, ‘CEAR y ACNUR se unen para facilitar la identificación de refugiados en costas’, 14 August 2018, available in Spanish at: https://bit.ly/2MiPNQn.

[5] Information provided by Save the Children, 1 April 2020.

[6] 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.

[7] 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.

[8] 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.

[9] 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.

[10] Laura Carrillo Palacios and Teresa De Gasperis (Accem), ‘La otra cara de la trata’, November 2019, available in Spanish at: https://cutt.ly/htwIdsc.

[11] CEAR-Euskadi, ‘Retos en el avance hacia una protección de las mujeres y niñas en situación de trata en Euskadi desde un enfoque de protección internacional’, June 2019, available in Spanish at: https://cutt.ly/htegGrh.

[12] 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.

[13] Information provided by Fundación Cruz Blanca, 11 January 2021.

[14] CEAR, ‘La devolución de dos jóvenes vietnamitas, un clamoroso paso atrás contra la trata’, 31 October 2019, available at: https://cutt.ly/HrcUV0Z.

[15] Defensor del Pueblo, Informe Anual 2019. Volumen I – Informe de Gestión, 2020, available in Spanish at: https://cutt.ly/njaEHwL, 218.

[16] CEAR, Informe 2020. Las personas refugiadas en España y en Europa, June 2020, available in Spanish at: https://bit.ly/3ny3OaG, 81.

[17] 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.

[18] 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.

[19] CEAR, ‘España empieza a reconocer el derecho de asilo a las víctimas de trata’, 16 January 2017, available in Spanish at: https://goo.gl/NZDQcf.

[20] Ministerio de Igualdad, ‘Consulta pública previa a la elaboración de un proyecto normativo consistente en una ley integral contra la trata’, April 2021, available at: https://bit.ly/34IxT3S.

[21] Europa Press, ‘El Defensor del Pueblo pide mejorar los protocolos para la identificación de las víctimas de trata’, 29 July 2021, available at: https://bit.ly/3t7aan7.

[22] 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 at: https://bit.ly/35t9u2k.

[23] 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 at: https://bit.ly/3hdxY22.

[24] GRETA – Group of Experts on Action against Trafficking in Human Beings, ‘Reply from Spain to the Questionnaire for the evaluation of the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the Parties. Third evaluation round. Thematic focus: Access to justice and effective remedies for victims of trafficking in human beings. Reply submitted on 5 October 2021’, available at: https://bit.ly/3w0w0Lb.

[25] Framework Protocol of 13 October 2014 on actions relating to foreign unaccompanied minors, available in Spanish at: http://bit.ly/1WQ4h4B.

[26] Chapter II, para 6 Protocol on Unaccompanied Minors.

[27] For a critique by the United Nations High Commissioner for Human Rights (OHCHR), see El Diario, ‘La desprotección de los menores migrantes solos en España’, 17 February 2016, available in Spanish at: http://bit.ly/1PVIXqe. See also Save the Children Spain, Menores no acompañados: Informe sobre la situación de los menores no acompañados en España, 2005, available in Spanish at: http://bit.ly/1peTpmj.

[28] Ombudsman, Determinación edad presunta menor de edad, 10 May 2017, available in Spanish at: http://bit.ly/2DvtDBW.

[29] 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.

[30] Diario La Ley, ‘La nueva ley de la infancia prohíbe los desnudos integrales a menores migrantes para determinar su edad’, 13 May 2021, available at: https://bit.ly/3i7tsCM.

[31] 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.

[32] 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.

[33] 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.

[34] 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.

[35] 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.

[36] 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.

[37] See EDAL summay at: https://bit.ly/2NN5u0X.

[38] 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.

[39] 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 at: https://bit.ly/3gn7gUw.

[40] CEAR, ‘Defensor del Pueblo reclama presunción de minoría de edad a refugiados’, 2 August 2017, available in Spanish at: http://bit.ly/2vIp4AW; Ombudsman, Presunción de minoría de edad para solicitantes de asilo, 12 July 2017, available in Spanish at: http://bit.ly/2naKjIX.

[41] See Fundación Raíces at: https://bit.ly/3sc8giJ.

[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 at: https://bit.ly/3IlgT1B; Tribunal Supremo, STS 2400/2021, 21 June 2021, available at: https://bit.ly/3AeH8E6; Tribunal Supremo, STS 2551/2021, 18 June 2021, available 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] Ombudsman, ‘Procedimiento de determinación de la edad. decreto de mayoría de edad y notificación a los interesados, por parte de los fiscales, con anterioridad a la materialización de su devolución’, 13 September 2018, available in Spanish at: https://bit.ly/2FFF1PA.

[47] Diario de Sesiones del Senado, Pleno, 1 July 2020, available in Spanish at: https://bit.ly/2Xt1qqO, 131.

[48] Defensor del Pueblo, ‘Determinación de la edad de menores extranjeros indocumentados’, 15 January 2021, available at: https://bit.ly/3bkLw8O.

[49] Fundamental Rights Agency (FRA), ‘Migration: key fundamental rights concerns. 1.10.2020-31.12.2020. Quarterly bulletin’, 2021, available at https://bit.ly/3Hw89FC.

[50] 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.

[51] Canarias7, ‘Canarias comienza el traslado de menores extranjeros no acompañados a la Península’, 11 March 2021, available at: https://bit.ly/3i6uLBP.

[52] Europa Press, ‘Torres pedirá “más compromiso” a las CCAA en la Conferencia de Presidentes con el traslado de menores migrantes’, 28 January 2022, available at: https://bit.ly/3t5phxA.

[53] 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.

[54] 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.

[55] Fiscalía General del Estado, ‘Memoria de la FGE 2021 (Ejercicio 2020)’, September 2021, available at: https://bit.ly/3zrWXqS.

[56] UNICEF, ‘Canarias: Niños y niñas migrantes en una de las rutas más peligrosas del mundo’, July 2021, available at: https://bit.ly/3pUjYPK, 20.

[57] 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 at: https://bit.ly/3suhlba

[58] Audiencia Nacional, ‘Sala de lo Contencioso-Administrativo, Sección Séptima, nº recurso 770/2017’, 28 December 2018, available in Spanish at: https://cutt.ly/brc1ryQ.

[59] Europa Press, ‘El Defensor del Pueblo avisa de que “la inexactitud” del registro menores extranjeros solos “invisibiliza” a las niñas’, 17 July 2019, available in Spanish at: https://cutt.ly/arc1MTP.

[60] Público, ‘La Fiscalía del Estado ordena demandar a las Delegaciones del Gobierno que no den permiso de residencia a menores migrantes’, 26 September 2019, available in Spanish at: https://cutt.ly/YrcMWVq.

[61] Article 196 Aliens Regulation.

[62] El País, ‘España mantiene sin papeles a casi 10,000 menores inmigrantes tutelados’, 19 November 2019, available in Spanish at: https://cutt.ly/Urc0Gnr.

[63] Defensor del Pueblo, ‘El Defensor del Pueblo hace un llamamiento para avanzar en la protección de los menores extranjeros que llegan a españa de manera irregular acompañados de adultos’, 8 October 2019, available in Spanish at: https://cutt.ly/frcma20.

[64] Defensor Navarra, ‘Los Defensores del Pueblo al completo exigen un plan nacional para atender con garantías a los menores migrantes’, 17 October 2019, available in Spanish at: https://bit.ly/3uwHzX1.[65]; 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.

[66] Save the Children, ‘Fundación porCausa, ‘Crecer sin papeles en España’, February 2021, available at: https://bit.ly/38adhjm.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation