Thursday

22nd Nov 2018

Opinion

Spain turns its back on migrant children's rights

  • Child migrants are a particularly vulnerable group, especially if they are not given protection. (Photo: plan-international.org)

At this very moment, some children in Spain are being held in adult immigration detention centres, pending return to their home countries.

Other migrant children are living on the streets in Madrid and other Spanish cities, suffering from serious illnesses, or are prevented from applying for asylum. This is happening because they are not Spanish nationals and the authorities have not recognised them as children, but consider them to be adults.

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During the International Commission of Jurists' (ICJ's) capacity and coalition building activities with lawyers and civil society organisations to better defend migrant children's rights in various European countries, our Spanish partner, Fundacion Raices, raised attention to the dire situation of migrant children in Spain.

In seven cases concerning migrant children in vulnerable circumstances, Fundacion Raices and other Spanish lawyers requested the United Nations committee on the rights of the child to issue interim measures, i.e. orders to the Spanish authorities, with a view to avoiding irreversible harm to these children.

In states that, like Spain, are parties to the optional protocol to the Convention on the Rights of the Child on a Communications Procedure, the committee on the rights of the child is empowered to examine individual communications by or on behalf of a child or group of children claiming that there has been a violation of their rights under the convention.

Irreversible damage

Pending its determination on the merits, the committee may request the state party to take interim measures, as may be necessary to avoid possible irreversible damage to the victim or victims of the alleged violations.

In one of the seven cases mentioned above, a 16-year-old boy, who was hurt when crossing the border into Spain, requires urgent surgery.

Since the boy is an unaccompanied child, the hospital treating him requires the consent of a responsible adult to authorise his surgery. However, until a guardian has been appointed, no consent to the child’s surgery can be given.

Disregarding the boy’s own passport, which attests to his childhood, following a highly criticised age-assessment procedure, the public prosecutor decided that he is an adult.

However, the boy is in a catch-22 situation since, as far as the hospital is concerned, there is no official document attesting to his age other than his own passport, according to which he is a child.

Therefore, the boy has not had the surgery he so desperately needs. In addition, if considered an adult, he would have to pay for the surgery himself.

The UN committee reacted swiftly to the lawyers’ demands and during the past 7 months requested the Spanish government in those seven cases to take interim measures.

Under international law, respect for interim measures is essential for the protection of human rights.

Existing international law and jurisprudence affirm that any state party’s non-compliance with a request for interim measures constitutes a breach of its legal obligations under international law.

Respecting international law

The binding nature of interim measures has been reaffirmed by the human rights committee in its general comment 33 on the individual complaints procedure.

However, the Spanish government has ignored these requests and failed to comply with any of the requested interim measures. The Spanish government is thus in violation of the international obligation it has voluntarily undertaken - more significantly, the lives and well-being of dozens of highly vulnerable children are at risk.

The UN Convention on the Rights of the Child obliges states to consider the best interests of the child as a primary consideration above any other. However, the Spanish authorities claim that the individuals in these cases are not children but adults.

Yet, in the event of any remaining uncertainty, international law affirms that states must accord the individual the benefit of the doubt and treat him or her as a child - until effectively proven otherwise.

Moreover, the Spanish supreme court has already expressed concern about the age-assessment procedure used by the Spanish authorities, in more than 10 judgments, as did the Spanish ombudsman and the United Nations high commissioner for human rights.

Last month, six civil society organisations in Spain (Amnesty International, Fundacion Raices, the General Council of Spanish Lawyers, the Jesuit Mission for Migrants, Noves Vies and Save the Children) called on the Spanish Government to immediately implement the committee’s request for interim measures in each case.

The ICJ is training lawyers in seven EU countries, including Spain, and supporting them in bringing their cases to international human rights mechanisms, such as the UN committee on the rights of the child, when no effective remedy is available domestically.

The Spanish government is failing these children and is failing to respect its international law obligations.

Respecting one's international obligations and ensuring that no harm is caused to children in violation of their rights should be high priorities for any states that are parties to the UN Convention on the Rights of the Child.

The Spanish government should live up to its obligations, and immediately implement the committee on the rights of the child’s request for interim measures in these cases.

The International Commission of Jurists (ICJ) is composed of 60 eminent judges and lawyers from all regions of the world and promotes and protects human rights through the rule of law, by using its unique legal expertise to develop and strengthen national and international justice systems.

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