Author
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. As previously mentioned, in October 2021 the Regulation of the Immigration Law has been reformed and it facilitates access to residence and work permits for unaccompanied migrant children, as well as those for who arrived as children and “aged out” during the procedure, but are between 18 and 23 years old; moreover, it allows access to work also for children turning 16.[2] It is hoped that such reform will positively impact on the lives of children, by making sure they are not left undocumented, as well as to avoid situations of homelessness.
In its thematic report on the migration situation in the Canary Islands, Amnesty International denounced the lack of proper protection that unaccompanied migrant children face, including the delays in undergoing age assessment procedure and the risk of homelessness.[3] Similarly, different organisations had previously reported on problems faced by UAMs in Spain.[4]
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 2018, a total of 77 unaccompanied children applied for international protection,[5] a figure that only slightly increased to 98 applications in 2019.[6] In 2020, 45 unaccompanied migrant children applied for international protection,[7] while in 2021 they were 50.[8] Statistics on the year 2022 were not available at the time of writing.
In relation to the low numbers of asylum applications by UAMs, it is worth to mention that they are protected under the Law on Child Protection, and that the identification of their international protection needs has represented a significant challenge in Spain since many years. Thus, even though UAMs stay in Spain, the vast majority of them do not apply for asylum, due to multiple factors (i.e. lack of information of the right to asylum they have, lack of identification of their international protection needs by the authorities competent on child protection, etc.). Even though among all the UAMs who arrive to Spain, some of them can decide to move to other countries, the lack of identification of their international protection needs represents the main reasons of such low numbers.
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] PICUM, ‘Spain adopts law to facilitate regularisatuon of young migrants’, 18 November 2021, available at: https://bit.ly/3mUBDrx.
[3] Amnistía Internacional, ‘Canarias; un año de análisis, décadas de fracaso de políticas migratorias’, December 2021, available at: https://bit.ly/35TiyOk.
[4] Newtral, ‘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; 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; Servicio Jesuita a Migrantes, Buscar salida. Informe Frontera Sur 2020, 18 December 2020, available in Spanish at: https://bit.ly/3bF2PD9; El País, ‘El bloqueo documental para expulsar a jóvenes extutelados de Melilla’, 12 January 2021, available in Spanish at: https://bit.ly/2LPcMTL; Radio 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.
[5] OAR, Asilo en cifras 2018, available in Spanish at: https://cutt.ly/0rqdnUU.
[6] Oficina de Asilo y refugio (OAR), Asilo en cifras 2019, July 2020, available at: https://bit.ly/3oEUQtl.
[7] Ministerio del Interior, ‘Asilo en cifras 2020’, 2020, available at: https://bit.ly/3ZDcmRj, 94.
[8] Ministerio del Interior, ‘Asilo en cifras 2021’, 2021, available at: https://bit.ly/3JeTHnN, 88.