Author
Children shall not be detained as a rule,[1] but the Aliens Act foresees the possibility of detaining families with children.[2]
Although detention of asylum seekers or vulnerable categories is not explicitly allowed by law, in practice several exceptions have been reported concerning unaccompanied children and victims of trafficking. This is due to the lack of identification of the minor age of the person, or of his or her status of victim of trafficking. For example, according to the annual report issued by the Ombudsman in its capacity of National Prevention of Torture Mechanism, 11 persons were identified as minors at CIEs in 2021, the highest number being detained in the CIEs of Algeciras and Tenerife.[3] In its 2022 report on CIEs, the Jesuit Refugee Service highlighted the persistent problem of a lack of identification of unaccompanied children when already detained at CIEs, and informed that 38 age assessment procedures were carried out, being 11 the persons that were finally identified as minor and thus released.[4]
Nonetheless, when they are identified as minors or victims of trafficking while they are in detention, they are released and handled to the competent protection systems. In addition, applicants such as pregnant women or persons requiring assistance may be exempted from the border procedure and admitted to the territory in specific cases.
[1] Article 62(4) Aliens Act.
[2] Article 62-bis(1)(i) Aliens Act. The part of this provision, referring to the need for CIE to guarantee family unity, has been set aside by the Supreme Court: Tribunal Supremo, Application 373/2014, 10 February 2015.
[3] Mecanismo Nacional de Prevención de la Tortura, Defensor del Pueblo, ‘Informe Anual 2021. Anexo B – Datos estadísticos de interés para la privación de libertad de media duración. Centros de internamiento de extranjeros (CIE)’, May 2022, available at: https://bit.ly/3QhWHSu.
[4] Servicio Jesuita a Migrantes, ‘Informe CIE 2021.Territorio hostil. Formas diversas de hostilidad en los CIEs. Anexo de cifras’, May 2022, available at: https://bit.ly/41h2LzR.