Legal representation of unaccompanied children

Spain

Country Report: Legal representation of unaccompanied children Last updated: 25/03/21

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The guardianship system in Spain is governed by the Spanish Civil Code, which establishes the conditions and defines the actions foreseen in the following different situations: measures in situations of risk, measures in situations of homelessness/distress, guardianship and family reception. The competence of minors’ protection departments corresponds to the Autonomous Community or city which is responsible for the appointment of a legal guardian to its public entity of children protection. The process of guardianship starts with the Declaration of Abandonment (Declaración de Desamparo) by the Autonomous Communities, which is the declaration of the homelessness/helplessness of the minor, and represents the first step not only for undertaking the guardianship of the child but also to guarantee his or her access to the minors’ protection system and services. This procedure has different durations depending on the Autonomous Community in which it is requested, but a maximum time limit of three months must be respected for the assumption of the guardianship by the public entity of protection of minors, as set by the Protocol.[1]

After the declaration of Desamparo, the public administration grants the guardianship and the minor is provided with clothing, food and accommodation. Guardianship is usually left to entities such as NGOs or religious institutions which are financed by Minors’ Protections Services. It implies the responsibility of protecting and promoting the child’s best interests, guaranteeing the minor’s access to education and proper training, legal assistance or interpretation services when necessary, enabling the child’s social insertion and providing him or her with adequate care. Concerning the specific issues of asylum applications, the Protocol states that the guardians will take care of providing the minor with all needed information and guaranteeing him or her access to the procedure.

Shortcomings and problems have been raised concerning the guardianship systems for unaccompanied minors, and mostly with regard to the excessively long duration of the procedures for issuing an identification document when children are undocumented. Moreover, serious concerns have been reported regarding children who have been under the guardianship of the Autonomous Communities and are evicted from protection centres once they turn 18 even if they have not been documented or have not yet received a residence permit. In these cases, children are left in streets, homeless and undocumented.

These issues persisted in 2020 and unaccompanied migrant children continued to face homelessness, inter alia due to a lack of sufficient specific resources and reception places, as well as the fact that residence permits are not issued to children while they are still minors.[2] UNICEF and the Moroccan Association for Integration also raised concern about this situation.[3] In May 2020, APDHA reported that 150 children were left on the street without any alternatives during the State of Alarm declared following the Covid-19-pandemic.[4]  The Jesuis Migrant Service further denounced the situation faced by many unaccompanied migrant children (especially from Morocco) that become undocumented when they age-out, despite the fact that the administration is obliged to provide them with documentation while they are still minors.[5] The report especially refers to cases in Melilla, where the lack of documentation impedes them from travelling to mainland and thus obliges them to live on the streets. When they do not receive residence permits as minors, they further face a risk of receiving expulsion orders when becoming adults.[6] The campaign “A passageway without exit” (#uncallejonsinsalida) aims at changing the Aliens Act in order to allow and guarantee a better future for unaccompanied migrant children.[7]

Concerning the right to apply for asylum, Article 47 of the Asylum Act establishes that unaccompanied children shall be referred to the competent authorities on children protection. In addition to this provision, the National Protocol on unaccompanied children makes specific reference to the cases of children in need of international protection, with the aim of coordinating the actions of all involved actors and guarantee access to protection.

Nevertheless, it should be highlighted that there are very few asylum applications made by unaccompanied children. In 2016, the Government communicated that in the last 5 years, 101 asylum claims had been made by unaccompanied children in 2011-2016, 28 of which were registered in 2016.[8] A total of 31 unaccompanied children were granted protection in those five years. In 2018, a total of 77 unaccompanied children applied for international protection.[9], which slightly increased to 98 applications in 2019.[10] Statistics on the year 2020 were not available at the time of writing of this report.

Given the increasing numbers of arrivals in Spain, the low numbers on unaccompanied children seeking asylum highlight the existence of shortcomings concerning their access to protection. This is mostly due to the lack of provision of information on international protection within the minors’ protection systems of the Autonomous Communities.

[1] Chapter VII, para 1(2) Protocol on Unaccompanied Minors.

[2] El Salto Diario, ‘Cumplir los 18 años en la calle y sin permiso de residencia’, 18 November 2020, available in Spanish at: https://bit.ly/39iJrZG.

[3] Nwtral, ‘De niño protegido a vivir en la calle en un solo día: así se hacen adultos los menores migrantes’, 6 October 2020, available in Spanish at: https://bit.ly/3shZArc; Público, ‘UNICEF llama a la acción ante el drama de los menores migrantes: “No se puede culpar a un niño de vivir en la calle”, 16 November 2020, available in Spanish at: https://bit.ly/2LNg49N.

[4] Asociación Pro Derechos Humanos de Andalucía – APDHA, APDHA denuncia que la Junta dejará en la calle sin alternativa a 150 jóvenes ex tutelados durante el estado de alarma, 22 May 2020, available in Spanish at: https://bit.ly/3sd2UUx.

[5] Servicio Jesuita a Migrantes, Buscar salida. Informe Frontera Sur 2020, 18 December 2020, available in Spanish at: https://bit.ly/3bF2PD9.

[6] El País, ‘El bloqueo documental para expulsar a jóvenes extutelados de Melilla’, 12 January 2021, available in Spanish at: https://bit.ly/2LPcMTL.

[7Radio Televisión Española, ‘Jóvenes extutelados extranjeros: en un callejón sin salida sin recursos económicos ni papeles’, 19 November 2020, available in Spanish at: https://bit.ly/3qiKIqN.

[8] Senate, Response of the Government to Question 684/22616, 19 September 2017.

[9]  OAR, Asilo en cifras 2018, available in Spanish at: https://cutt.ly/0rqdnUU.

[10] Oficina de Asilo y refugio (OAR), Asilo en cifras 2019, July 2020, available at: https://bit.ly/3oEUQtl

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