leidenchildren'srightsobservatory

Case Note 2020/2

Communications No. 16/2017 A.L. v. Spain; 17/2017 M.T. v. Spain; 22/2017 J.A.B. v. Spain; 24/2017 M.A.B. v. Spain and 27/2017 R.K. v. Spain.

Unaccompanied migrant and asylum seekers’ children in age determination procedures, in need of child protection and care, and subjected to migration-related detention and/or deportation measures

Details

Outline of the Substantive Issues

These recent communications against Spain, were submitted before the CRC Committee by five adolescent migrants and asylum seekers: A.L., from Algeria (16/2017), M.T., from Ivory Coast (17/2017), J.A.B., from Cameroon (22/2017), and M.A.B. and R.K., both from Guinea (24 and 27/2017). All the decisions adopted by Committee, between July 2019 and February 2020, are built on the same starting point: an age determination procedure. In each case, the Committee examines whether this procedure infringes any provision of the Convention, and consequently, if the procedure -and its outcome- leads to the violation of other children’s rights.

All the complainants alleged they arrived in Spain at the age of 17 years old. While four of them stated they were children right after their arrival - and in further occasions before different authorities-, a fifth one did it at a later stage.1 They all were subjected to Age Determination Procedures, in particular medical tests - radiological analysis -, which lead to an estimation of a range of age. Even though this method has been increasingly known for its wide margin of error, all the procedures established that they were adults.

The complainants, in different stages of the process, submitted documentation in order to sustain they were children - birth certificate, passport, or proof of passport request before the Consulate. However, the decrees declaring them as adults were not modified. In M.T. v Spain (Com. 17/2017) and J.A.B. v Spain (Com. 22/2017), the age assessments were carried out after they had submitted a birth certificate and other evidence, even though there was not a formal decision that would prove the lack of lawfulness of the documentation presented by the authors.

In all the communications the complainants alleged that the age determination procedures were executed with inaccurate and unreliable methods. Moreover, they stressed that the procedures failed to ensure basic guarantees, including their right to be heard, their right to have a guardian, to be assisted by a lawyer, and, in some of the cases, by an interpreter.2 They also described the absence or ineffectiveness of the remedies against the decision, such as the confusing or contradictory role of the Fiscal Prosecutor.3 Hence, they stated, their best interests according to article 3 of the Convention, along with articles 6 and 12, were not taken into consideration. The State party reaffirmed its position on the objectiveness of the tests they implement for determining the age, as well as on the legality and safeguards of the procedure.

Subsequently, in four of the five cases, the complainants were referred to Immigration Detention Centers (CIE, Centros de Internamiento de Extranjeros), where they remained, depending on each case, between 15 and 60 days. According to Spain’s Immigration Law (“Ley de Extranjería”), while only adults could be detained for migration-related grounds, unaccompanied children and asylum seekers’ families should be referred to reception and protection facilities. The fifth author alleged that, with the assistance of a civil society organization, he was located in a child protection centre, although about 3 weeks later he was removed from there due to the decision on the age determination procedure. In addition, migration authorities issued a deportation order against each of the petitioners.

As another consequence of the lack of recognition of their age, the applicants stated that their right to identity, enshrined in article 8 of the Convention, was violated as well. They argued that age is a fundamental aspect of a person’s identity, which cannot be arbitrarily interfered by the State by measures , like in these cases, such as the attribution of a different age and date of birth.

Among the rest of the allegations submitted by the authors regarding other rights affected by the State party, it is worth noting the following:

  • In M.A.B. v Spain (Com. 24/2017), the petitioner highlights the absence of a Procedure for unaccompanied children at national level, which leads to a situation where procedures -as age determination- vary from case to case, mainly according to each jurisdiction. Then, he states, the best interest of the child is not driving those processes.
  • The complainants argued that in the age determination procedure and beyond -as they were declared adults-, they were not able to have a legal guardian in all the processes and decisions that impact their rights, as they are entitled to according to article 18.2 of the Convention;
  • As they were considered adults, the authors claimed that the State party did not fulfil the duty to adopt special protection measures for children without a family environment, as is required by article 20 CRC.
  • In A.L. v Spain, the author informed the Committee that he had been beaten with a stick by the guards of the detention centre, without receiving afterwards any medical assistance . Then, he stressed, he started a hunger strike.
  • In J.A.B. v Spain, the petitioner stressed that State party had not adopted measures aimed at ensuring his right to survival and development (article 6), which was aggravated by being removed from the child protection facility. As he had been diagnosed with tuberculosis and he could not continue the medical treatment, he asserted that article 24 on the right to health had also been infringed.
  • Two complainants (M.T. v Spain, and R.K. v Spain) described in their communications that they were not able to request for asylum as an unaccompanied child, which in their view entails a violation of article 22 of the Convention. They stressed that even though they tried to submit an application before the Office for Refugee Assistance, on more than one occasion, they were not allowed to do it due to the absence of a guardian. The appointment of a guardian, they explained to the Committee, was impossible because in spite of having presented identity documentation, they had been declared adults in the age determination procedure.
  • In four of the communications -with the exception of No. 17/2017- the authors claimed that the State party had not provided them with adequate conditions to ensure their physical, mental, spiritual and social development, according to article 27 of the Convention. They also asserted that article 29 (right to education) had been violated.
  • In all the cases, the authors alleged the violation of article 6 of the Optional Protocol 3, as the interim measures adopted by the Committee for avoiding possible irreparable damage had not been satisfied by the State party.

The State party stated that the communications should be declare inadmissible on two grounds: rationae personae and the non-exhaustion of domestic remedies. On the first one, the State asserted that the Communications should be declared inadmissible because the author is an adult, as a result of “an objective medical test” and the lack of proper and undoubtedly valid documentation able to confirm the alleged age of minority. Secondly, the State party pointed out that all the existing legal remedies for questioning the age determination decision and its subsequent measures -e.g., deportation order in some of the cases- had not been exhausted by the complainant -as required by article 7 (c) of the Optional Protocol.

Finally, it is worth adding that in all the cases a Third-Party submission by the French Ombudsperson was introduced to the analysis of the Communication. This expert’s opinion is focused on the failures and inaccuracies of the medical tests used for age determination. Furthermore, in the cases where the authors were held in migration detention centres (all the Communications, except in J.A.B. v Spain), the Ombudsperson underlines the international standards that forbids the deprivation of liberty of children for immigration purposes.

Findings

Before addressing the merits of the Communications, the Committee rejects the objections raised by the State Party regarding the admissibility of the complaints. Regarding the first objection introduced by the State party, the Committee recalled that the burden of proof does not rest solely on the author of the Communication, especially if is taken into account that the State has more resources for access to evidence and relevant information. Therefore, in the view of the Committee, the State party could have adopted measures directed to obtain further evidence on the complainants’ age, including to either confirm or reject the documentation they had submitted -e.g., a birth certificate without biometric data.

On the State’s allegation that the domestic remedies had not been exhausted, the Committee highlighted that -in four of the five cases- there was a risk of an imminent execution of the deportation order against the authors, taking into account the lack of suspensive effect of the existing remedies against such decision. Moreover, although with slight factual differences from case to case, the Committee underlined the insufficient effectiveness of the remedies mentioned by the State party. For instance, the Committee stressed that conducting further medical test for age determination would not constitute an effective remedy, and highlighted the lack of basic due process guarantees for unaccompanied children -e.g. legal assistance, guardian- within the procedures raised in the State party’s observations.

Regarding the merits of the Communications, the Committee’s findings are primarily focused on the age assessment procedure and how it impacts children’s rights enshrined in the Convention. As it did in previous cases (see Case Note 2/2019), the Committee highlights the importance of this procedure, “as the outcome determines whether that person will be entitled to or excluded from national protection as a child…, and …the enjoyment of the rights set out in the Convention flows from that determination”.

The Committee examines, in the light of the Convention, numerous aspects of the age determination procedure implemented by the State party in the five instances, reaching the following considerations and findings:

  • The Committee highlights that, although the authors had affirmed that they were children and submitted some documentation for evidencing their alleged minority age, the State party carried out the age assessment without adopting further measures for checking the evidence and gathering additional proof if needed. It points out that “documents that are available should be considered genuine unless there is proof to the contrary, and statements by children must be considered. The benefit of the doubt should be given to the individual being assessed”.
  • The Committee underlines that age determination in the State party is only done through medical tests (X-Ray). Then, in line with its General Comments 6 (2005) and 23 (2017), the Committee:
    • recalls that States should “refrain from using medical methods based on, inter alia, bone and dental exam analysis, which may be inaccurate, with wide margins of error, and can also be traumatic and lead to unnecessary legal processes”.
    • stresses that States “should undertake a comprehensive assessment of the child’s physical and psychological development, conducted by specialist paediatricians or other professionals who are skilled in taking account of various aspects of development”. They should also “be carried out in a prompt, child-friendly, gender-sensitive and culturally appropriate manner, including interviews of children in a language the child understands”.
  • Reminding of the relevance of the age assessment and the impact of its outcome, the Committee states that due process guarantees should be ensured, such as the right to have a guardian and a legal representative, an interpreter if needed, and to be provided with effective remedies against the decision.
    • In the five cases, the Committee found that the authors were not assigned a guardian or representative to defend their interests as a possible unaccompanied child during the age assessment procedure. It stressed that the State should appoint a qualified legal representative in those procedures, at the earliest stage possible, as an essential guarantee of respect for their best interests and their right to be heard. Similarly, the Committee underlined that the absence of timely representation can result in a substantial injustice.

Hence, the first conclusions of the Committee is that during the age assessment procedure, the best interests of the child (article 3), along with their right to due process guarantees, including their right to be heard (article 12), were infringed by the State party. Subsequently, as they were wrongly considered adults, and without giving them the benefit of the doubt, the Committee examines whether other rights have been violated as a consequence of such decision.

One of novel findings of the Committee is on the impact on the age assessment outcome on children’s right to identity under article 8. The Committee stresses that the deficient age determination procedure implemented by the State party entails changing the author’s age and date of birth, which are considered part of their identity. Therefore, the Committee concludes that through the deprivation of those elements the State party failed to respect the right of the child to preserve his identity, which constituted a violation of article 8 of the Convention.

In the same direction, the Committee asserted that the lack of recognition of their condition of unaccompanied children have also led to depriving them of specific protection they should have enjoyed. Article 20.1 of the Convention includes concrete obligations of State parties regarding children that are permanently or temporarily out of their family environment, as in the case of unaccompanied migrant, asylum seekers, and refugee children. Having examined the above-described formal and substantive failures of the age assessment procedure, the Committee considered that the complainants have not been provided with the special assistance and protection they are entitled to when they are in such vulnerable circumstances. Thus, it found that article 20.1 was violated, although it did it in the three out of the five Communications which examined under this provision.4

Likewise, the last finding of the Committee in all the cases is related to the provision on interim measures from the Optional Protocol 3. The Committee recalled that, by ratifying the Optional Protocol, States parties take on an international obligation to comply with the interim measures requested under article 6 of the Optional Protocol, in order to avoid any irreparable harm. However, the Committee understood that the State party failed to refer the authors to a child protection authority while the communications were pending.

While the State party alleged that transferring potential adults to child protection facilities may have posed a risk to other children, the Committee’s position was the opposite. It underlined that the greater risk would be sending a child to a centre reserved for adults. Therefore, it concluded that article 6 of the Optional Protocol had been violated.

Apart from these findings, the Committee, in each of these five Communications, examined specific, additional issues regarding the following provisions of the Convention:

  • Article 22 (right to asylum)
    • In two cases (M.T. and R.K. v Spain), the complainants alleged that despite the fact that they tried to apply for asylum on more than one opportunity, they were not able to do it due to their condition of being an unaccompanied child.
    • The Committee underlined that while the authors were treated as adults, they were not allowed to apply for asylum as unaccompanied children due to the lack of a guardian, which was impossible precisely because they had been formally declared adults.
    • Without examining whether they would or would not obtain refugee status, the Committee stressed that impeding them to seek asylum as a child put them at risk of deportation, and eventually of irreparable harm in the event of return to their country of origin, in violation of article 22 of the Convention.
    • The Committee also asserted that in cases where unaccompanied children are involved in asylum procedures, State parties have the obligation to provide them with a guardian and legal representation.
  • Article 24 (Right to health care)
    • In J.A.B. v Spain, the Committee examines how the decisions of the State party, especially the age assessment process, impacted different authors’ rights. After declaring him to be an adult, he was removed from the child protection centre. This fact, along with the lack of assistance, a legal representative and other services, led to the interruption of the health treatment and vaccinations he was receiving. The Committee found that this lack of protection not only constituted a violation of article 20 of the Convention, but article 24 as well.
  • Article 6 (Right to child survival and development), 18.2 (Duty to ensure appropriate care), 27 (Right to an adequate standard of living), and 29 (Right to education)
    • Four of the five communications, although with differences from each other, unsuccessfully alleged the violation of a set of closely-related obligations of the State parties: ensuring children´s right to survival and development (article 6); guaranteeing institutions, facilities and services for the care of children (18.2); fulfilling the right to an adequate standard of living (27), and the right to education (29).
    • In A.L. and M.A.B., the Committee declared admissible the allegation on the violation of article 27, although eventually did not examine whether it was infringed. In the other two cases (M.T. and R.K.), it was declared inadmissible, as the Committee considered it had not been sufficiently substantiated for purposes of admissibility, according to article 7(f) of the Optional Protocol.
    • In J.A.B., the allegation on the violation of article 6 based on the impact of State party conduct in the authors’ right to survival and development, was also declared inadmissible by the Committee due to the insufficient substantiation.
    • Similarly, allegations on the violation of article 29, by A.L., M.A.B., and R.K., were declared inadmissible, as the Committee considered that they had not been sufficiently substantiated for purposes of admissibility.

Lastly, in the field of reparations for the violations found in each case, the Committee resolved that the State party should adopt several measures. While some of them are directed to the authors’ situation, others are aimed at promoting that State party’s policies, decisions and procedures are duly adapted to the Convention, as well as preventing further violations of children’s rights in similar circumstances.

At individual level, the Committee decided -in four cases-5 that the State party should provide the authors the opportunity to regularize their administrative status. In addition, in R.K. v Spain, the Committee concluded that the State party should adopt measures directed to correcting the date of birth in the documentation provided – an asylum card-.

At policy level, in A.L. v Spain, the Committee stressed that the State “is under an obligation to prevent similar violations in the future, in particular by ensuring that all procedures for determining the age of possible unaccompanied children are carried out in a manner consistent with the Convention and that, in the course of such procedures, these persons are promptly assigned a qualified legal representative free of charge”. In J.A.B. v Spain, the Committee added that in those procedures “the documentation submitted by the persons subjected to them is taken into consideration and that… their freely designated lawyers are recognized”. In the other cases, it was inserted that if documentation is “ issued or authenticated by the relevant State authority or embassy”, should be “accepted as genuine”, and that representatives should be “allowed to assist the young person during the age determination procedure”.

Moreover, in cases M.A.B., R.K., and M.T. v Spain, the Committee added the following reparation measures:

  • “Develop an effective and accessible redress mechanism that allows young unaccompanied migrants claiming to be under 18 years old to apply for a review of any decrees of majority by the authorities in cases where the age determination procedure was not accompanied by the safeguards needed to protect the best interests of the child and the right of the child to be heard”.
  • “Ensure that young unaccompanied asylum seekers claiming to be under 18 years old are assigned a competent guardian as soon as possible to enable them to apply for asylum as minors, even if the age determination procedure is still pending” (in cases R.K. and M.T.).
  • “Provide training to immigration officers, police officers, members of the Public Prosecution Service, judges and other relevant professionals on the rights of asylum-seeking and other migrant children and, in particular, on the Committee’s general comments Nos. 6, 22 and 23”.

Commentary

These five recent decisions of the Committee could be analysed through two lenses. Firstly, focusing on the matters addressed by the Committee, as well as the scope and conclusions reached in each of them. Secondly, examining the themes and issues that have not been incorporated into the Committee’s considerations of the admissibility and merits.

The core of the examinations of the Committee is on the age assessment procedure, and then, to some extent, on how its outcome impacts children’s rights. Regarding the age determination procedure implemented by the State party for young migrant and asylum seekers arriving in the country, the Committee reaffirms its jurisprudence in several aspects. One of them is on the wrong method used by the State party for assessment itself their age, that is, through only a medical test which, additionally, is well known for its wide margin of error. The Committee, recalling the standards reflected in General Comments 6 and 23, reiterates that States should refrain from using such kind of techniques, and asserts the need for a comprehensive assessment which include a set of procedural and substantive elements.

A key aspect of the Committee’s considerations on the age assessment is the failure to ensure the authors’ due process guarantees, such as the right to a legal representative, a guardian, an interpreter, and the right to be heard. As it is highlighted in the Case Note 2/2019, the Committee’s criticism of the procedure is particularly centred on the lack of these safeguards. In the same direction, while the measures for providing an effective reparation have been positively extended, they are mainly focused on the procedural elements of age determination, rather than on how, when, and why it should be done, which could lead to requesting the adoption of measures directed to eradicate wrong and harmful practices. In any case, it is worth noting that the Committee considers that the method used, the absence of a child-sensitive approach, the disrespect of the benefit of the doubt, as well as the lack of critical due process guarantees, are all among the elements that amount the violation of articles 3 and 12 of the Convention.

As another positive note, it is important to underline the incorporation of the merits alleged by the authors on their right to identity. While in Communication 11/2017 the Committee decided not to consider the claim relating to the violation of article 8, from 16/2017 and 22/2017 onwards, both decided in July 2019, this matter is addressed. In the view of the Committee, as a result of the inaccurate means for determining the age, essential elements of child’s identity -age and date of birth- were arbitrarily changed by the State party, which constitutes a violation of such right.

An important remark by the Committee in all the cases -as in previous decisions- is on the relevance and impact that an age determination may have on children’s rights. Namely, that the application or not of the Convention would depend on the outcome of the such assessment. This is especially relevant in counties where, as at the Spanish Southern border, policies aimed at responding to the arrival of migrants and asylum seekers have given considerable weight to age determination procedures. This Committee’s position could be deeper developed in further cases. When it comes to the rights of child migrants and asylum seekers, there are numerous practices -e.g. pushbacks at borders and in international waters- that impede the implementation of the Convention due to the prioritization of migration control policy goals. Standards endorsed in General Comment 22, such as the primacy of the rights of the child in the context of international migration (para. 13), could contribute to a more in-depth analysis.

Regarding other kind of child rights’ implications of the age assessment process, the Committee addressed few of the allegations included in the Communications reviewed for this Case Note. While authors alleged violations or articles 6, 18.2, 20.1, 27, and 29, the Committee only examined -in 3 cases- the claims for unaccompanied children to be provided with special assistance and protection in the light of article 20.1. On the rest of the allegations, the Committee either declared their inadmissibility or, having accepted them, it eventually decided not to make any consideration of the merits after having found the violations of other provisions.

Articles 6, 18.2, and 27 relates to the obligations of State parties to fulfil child survival and development goals -including mental, physical, spiritual, social, and moral development-, as well as to ensure appropriate care policies -institutions, services, facilities-. A mistaken approach to unaccompanied children that leads to treating them as adults, as the Committee stressed, implies leaving them out of the protection all children are entitled to according to the Convention. Several reports about unaccompanied migrant children in Spain, as those mentioned by the complainants, widely evidence how this reality affects a large catalogue of basic rights -right to development, adequate standard of living, including the right to education under article 29-.

In fact, in J.A.B. v Spain, the Committee correctly finds that the failures of the age determination procedure also led to the violation of his right to health care -article 24-. Hence, the vulnerable circumstances of unaccompanied migrant and asylum seeker children, acknowledged by the Committee in its General Comment 6, 22 & 23, are enough basis for bolstering policies aimed at providing them with proper and timely care and protection. This kind of Communication could be a unique opportunity for underlining the concrete policies State parties should put in place in order to guarantee that children in the context of migration are fully treated according to the provisions, principles, and standards of the Convention.

It is worth highlighting that the right to asylum was also addressed by the Committee in the two cases the authors alleged it had been violated -M.T. and R.K. v Spain-. The procedural and de facto obstacles faced by the complainants for seeking and obtaining asylum as unaccompanied children, were considered by the Committee as enough ground for infringing article 22. Notwithstanding this positive note, it may have been interesting if the Committee had gone beyond the procedural issues. As it is evidenced in reports from UNICEF (2019) and other specialized organisations (Save the Children, 2018; La Merced, 2009), constraints facing unaccompanied children’ trying to seek and obtain asylum in Spain are not only due to the lack of guarantees, but also to substantive policy gaps, which would not be solved by the provision of, e.g., a guardian.

In those reports, it has been singled out that there is a wrong interpretation of child protection policy and normative framework. The mistaken approach consists in the belief that referring unaccompanied children to child reception centres and under the guardianship of child protection authorities, would replace, or make unnecessary, ensuring the complementary protection from other legal instruments, such as the Geneva Refugee Convention. Official statistics evidence the disproportionately low number of unaccompanied children that seek asylum. While they may formally have a guardian, the combination of pending challenges of the child protection system, the incomplete adaptation to the needs of child migrant and asylum seekers, and the lack of other guarantees in child protection facilities -legal adviser, inter-cultural mediator, etc.-, are among the factors that explain the low statistics, as well as the problems faced by the authors of Communications 17/2017 and 24/2017.

Unfortunately, one of the main missing issues in the views of the Committee in the cases reviewed for this Case Note, is on the detention of the authors in an Immigration Detention Centre (CIE). In four of the five cases, after having been wrongly considered adults, the children were transferred to a facility directed to deprive adult people of their liberty while their deportation is being processed. A.L. was detained for four days in a Police Station, and then he was held in a CIE for 60 days, which is the maximum length allowed by Migration Law (Ley Orgánica de Extranjería 4/2000) for adults’ migration-related detention. Similarly, detention in a CIE of M.T., M.A.B., and R.K. lasted 15, 50, and 52 days, respectively.

While it is worth noting that none of the authors alleged the violation of article 37(b) of the Convention on the right against any arbitrary interference on child liberty, the facts of the communications clearly described they were all admitted to migration-related detention. The lack of an inadequate age assessment policy not only led to acts against their best interests in connection to the right to be heard, the right to identity and other provisions of the Convention as 20.1, but to measures directed to deprive them from their liberty based on their migration status and the issuing of a deportation order.

In addition, in A.L. v Spain and further, the French Ombudsperson’ opinion reminded that “the detention of migrant children, even for short periods or for age assessment purposes, is prohibited by international law and that States should use alternative measures. States should prohibit the deprivation of liberty of children and their detention in adult facilities”. This standard had been upheld by the CRC in the Joint General Comment No. 23 (No. 4 CMW), stressing, along other considerations, that

“child and family immigration detention should be prohibited by law and its abolishment ensured in policy and practice. Resources dedicated to detention should be diverted to non-custodial solutions carried out by competent child protection actors engaging with the child and, where applicable, his or her family. The measures offered to the child and the family should not imply any kind of child or family deprivation of liberty and should be based on an ethic of care and protection, not enforcement. They should focus on case resolution in the best interests of the child and provide all the material, social and emotional conditions necessary to ensure the comprehensive protection of the rights of the child, allowing for children’s holistic development” (para. 12).

Therefore, the four communications that included children’s deprivation of liberty, could have been suitable opportunities for reaffirming the standards developed by the Committee -along with other international human rights protection mechanisms-6 on the prohibition of detention of children for immigration purposes. While the decisions of the Committee on the violation of article 6 of Optional Protocol 3 are notable, in order to avoid any irreparable damage, addressing their deprivation of liberty would have been a complementary contribution, in the same direction.

For instance, the analysis of the merits could have included specific considerations on whether the prohibition of any migration-detention measure should be included, in connection with the best interests principle, the benefit of the doubt, and other principles and obligations State parties must fulfil in the context of a presumed unaccompanied child subjected to an age determination procedure. Similarly, the decision on the measures for an effective reparation could have encompassed concrete steps aimed at effectively eradicating any child-migration related detention and ensuring rights-based solutions in the light of the Committee’s General Comment 23.

Furthermore, in M.A.B. v Spain, the author alleged the lack of judicial protection, as “he was not given the opportunity to lodge any kind of appeal” against his deprivation of liberty. He stressed that the authorities decided “that it was not appropriate to review his detention, given the results of the medical age determination tests, which showed that he was over 18 years of age, and that this decision became final because no request for review was made”, although the author affirmed that he had never been notified of this decision. These allegations may have led in a further analysis on whether article 37(b), along with article 12(2), had been infringed.

Likewise, it is important to note that the authors had been detained in the CIE in Madrid and Barcelona. That is, they were held in detention centres that have been regularly singled out due to their poor conditions, including cases of ill-treatment.7 In this context, the facts of the complaint submitted by A.L. includes the allegation that he had been beaten with a stick at the Migration Detention Centre located in Madrid. Then, along with the analysis of article 27(b), a consideration on article 37(a) about the prohibition of any kind of cruel, inhuman or degrading treatment, might have also been an interesting contribution for strengthening standards and promoting policy-changes in the field of migration-related detention facilities and conditions.

Regarding the effective reparations the State party is ought to deliver, it is important to note that the five decisions evidence a progressive trend in the jurisprudence of the Committee. Both the individual and policy reparation measures indicate that the Committee is permanently reviewing its jurisprudence in order to ensure that the decision actually represents an effective restitution of author’s rights, as well as developing tools for preventing similar violations in the future.

As final remarks, it could be stressed that in further cases related to the rights of children in the context of migration, other standards developed by the Committee could be considered. In this direction, considerations related to key standards from General Comment 22, as the ones on the duty of State parties to carry out Best Interest Assessments and Best Interest Determinations, and the leading role of the bodies of the Child Protection and Welfare System, among others, might contribute to more comprehensive analysis and, therefore, reparations, especially on the public policy aspects.

The Committee on the Rights of the Child has been increasingly playing a key role in the development of international standards on the rights of children in the context of migration. Since General Comment 6 in 2005, and later through other milestones as its Report of the Day of General Discussion (2012), and the General Comments 22 and 23 in partnership with the UN CMW, the Committee has become a critical actor in this field. This is particularly significant, especially in acutely challenging global scenario for the protection of migrant, asylum seekers and refugees’ rights.8

The Committee’s concluding observations and recommendations to State parties through the periodic reporting procedure, and its jurisprudence based on the Third Optional Protocol communications, constitute invaluable opportunities to permanently review, validate, and update those standards, and more importantly, for reaffirming the Convention as a living and effective instrument for the protection of rights to children in vulnerable circumstances. The decisions briefly reviewed in this Case Note represent a clear example of this critical contribution of the Committee, as well as the potential these mechanisms have as more in-depth analyses are progressively incorporated in further communications submitted before the Committee.

References

  • CRC-CMW (2017). Joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration.
  • CRC-CMW (2017). Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return.
  • CRC Committee (2012). The Rights of All Children in the Context of International Migration. See https://www.ohchr.org/Documents/HRBodies/CRC/Discussions/2012/2012DGDBackgroundPaper.pdf
  • CRC Committee (2005). Treatment of unaccompanied and separated children outside their country of origin.
  • Council of Europe (2018). Report of the fact-finding mission by the Special Representative of the Secretary General on migration and refugees, to Spain, 14-24 March 2018. Information documents SG/Inf(2018)25. Estrasburgo.
  • La Merced Migraciones (2009), Aproximación a la Protección Internacional de los Menores no Acompañados en España. Madrid
  • Save the Children (2018), Los más solos. Los fallos en el sistema de acogida, protección e integración de los menores migrantes no acompañados que llegan a España. Madrid.
  • Servicio Jesuita a Migrantes (2018). Sacar del Laberinto. Informe Frontera Sur 2018. Disponible en https://sjme.org/wp-content/uploads/2018/11/Sacar_del_laberinto_SJM.pdf
  • UNICEF (2016) El sistema de acogida y los niños refugiados en España. Análisis y propuestas desde la óptica de los derechos de la infancia, Madrid.
  • UNICEF (2019). Los derechos de los niños, niñas y adolescentes migrantes no acompañados en la Frontera Sur Española. Madrid, February 2019. Available at: https://www.unicef.es/sites/unicef.es/files/recursos/informe-ninos-migrantes-no-acompanados.pdf. Executive Summary in English, available at: https://www.unicef.es/sites/unicef.es/files/recursos/Spanish-Assessment-Southern-Border2019-ExecutiveSummary.pdf.
  1. This difference, as it is described in the Communication 22/2017, was due to the fact that he had arrived in Ceuta, a Spanish city in North Africa, instead of the Southern coast in the mainland of European territory. In this context, while families and adult asylum seekers are eventually referred to the other side of the Mediterranean, unaccompanied children remain in child protection facilities run by local authorities until they become adults. In this context, several reports have evidenced the extremely precarious, dangerous, overcrowded, and unprotected conditions in most of those centres. Among others, see Council of Europe (2018), UNICEF (2019), Servicio Jesuita (2018).
  2. The lack of interpreter -in French of Arabic-, according to the authors, was either at the age determination procedure or in earlier stages once they arrived in Spain or -in Com. 22/2017- before being referred to an Adults Reception Centre in Ceuta for five months.
  3. In M.A.B. v Spain, the author explains that the involvement of Public Prosecutor for Minors, who pursues the age determination procedure and adopts the final Decree, could hardly be considered as an effective remedy for questioning such decision. A report from UNICEF (2019) highlights the potential conflict of interests in the role attributed to the Prosecutors which impacts unaccompanied children, as in some jurisdictions, on the one hand, they can act as prosecutors of adolescents in conflict with the criminal law, they promote age determination procedures, and on the other, they serve as a public service for ensuring that their best interests is respected -e.g., by authorities and other stakeholders that administer reception and protection centres-.
  4. In Communications 16/2007 and 24/2017, while the Committee accepted the admissibility of the authors’ allegation on article 20.1, it decided not to examine this claim after having found the violation of provisions 3, 8, and 12.
  5. In A.L. v Spain, the Committee made a generic indication of the duty of the State to ensure effective reparation to the author, without detailing a particular measure.
  6. Among others, see these critical documents for the development of a solid international principle against children migration-related detention: a) Joint General Comment 4 CMW 23 CRC (2017, paragraphs 5-13); b) Inter-American Court of Human Rights, Advisory Opinion OC-21/14. Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection (2014). c) UN Working Group on Arbitrary Detention. Revised Deliberation No. 5 on deprivation of liberty of migrants; 7 February 2018, para. 11, 40. d) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez. A/HRC/28/68, 5 March 2015, para. 80; and e) UN Independent Expert on Children Deprived of Liberty. Global study on children deprived of liberty. Section V.C. A/74/136, 11 July 2009.
  7. Among other references on detention conditions in the Spain Migration Detention Centres (CIE), see the Report of the Jesuit Service for Migrants in 2017, when the unaccompanied children if these cases were detained in those facilities. The Spanish version is available in https://sjme.org/wp-content/uploads/2018/06/Informe-CIE-2017-SJM.pdf.
  8. The recent and regressive judgement of the European Court of Human Rights in the case N.D. and N.T. v Spain (February 2020), on due process guarantees, the right to asylum and other rights in the context of pushback measures, is only one of plenty of examples relating to the magnitude and scope of such challenges.