Guest post from Róisín Dunbar, alumna of the LLM in Migration and Refugee Law and Policy (Irish Centre for Human Rights).
On 28th September 2020 the UN Committee on the Rights of the Child (the Committee) adopted views for the 13th and 14th time since 2019, on Spain’s treatment of unaccompanied migrant children. The complaints of M.B. v. Spain and M.B.S v. Spain concerned citizens of Guinea who were minors at the time of their respective arrivals to Spain in July 2017. The complaints were brought by M.B. and M.B.S separately, both represented by Fundación Raíces. Fundación Raíces has denounced Spain’s age determination procedures for over 10 years. Of particular concern to the Committee was:
- the incorrect assessment of the minors’ ages despite the presentation of birth certificates to Spanish authorities and
- the failure to appoint a guardian to the unaccompanied minors.
A key stance taken by the Committee in these decisions was the requirement to conduct an age assessment which considers the psychological development of a minor in addition to physical appearance. In addition, the Committee held where documents attesting to the age of a minor are available such documents ought to be considered valid unless proven otherwise. Finally, the Committee criticised the failure of the Spanish authorities to provide State protection to the minors who were in a situation of acute vulnerability given their age, migrant status and being unaccompanied.
Brief Summary of the Facts
M.B.S (the author) is a citizen of Guinea born on January 1, 2000. The author arrived in Almeria on July 5, 2017, following interception at sea by local police forces. An X-Ray was performed on M.B.S’s wrist to determine his age which concluded M.B.S was 19 years old. The author argued he was not adequately informed of the consequences of the examination in a language he could understand. M.B.S was served with a deportation order and transferred to the CIE. M.B.S underwent further medical examination namely, dental which determined his age at 18 years old and an additional wrist examination which concluded the author was 19 years old. The Spanish NGO Fundación Raíces made representations on behalf of M.B.S. to 8 bodies to suspend the detention in the CIE and provide services under the Madrid child protection services pending the arrival of documentation to prove M.B.S.’s age was 17 years old. Following provision of the author’s original birth certificate, M.B.S. was transferred to an adult social residence and was not appointed a guardian. M.B.S. argued his treatment by the Spanish authorities violated Article 2 (protection from discrimination), Article 3 (best interests of the child), Article 8 (right to identity), Article 12 (right to be heard), Article 20 (special protection for children deprived of family environment), Article 27 (adequate standard of living) and Article 29 (right to education).
Scope and Admissibility
The Spanish authorities also argued M.B.S lacked ratione personae by contending he was at least 18 years old at the time of arrival to Spain. The State also argued the birth certificate cannot attest to the author’s age due to a lack of biometric data. The Committee held the burden of proof does not fall solely on the author to prove ratione personae, particularly in the present case as the author had provided documentation to support his claim of minority age.
Spanish authorities also argued M.B.S. had failed to exhaust domestic remedies specifically, inter alia, requesting further medical examinations and submitting an appeal of the return order. The Committee also refused arguments of inadmissibility presented by the Spanish authorities, acknowledging that such mechanisms were ineffective and inaccessible to the author. While M.B.S’s claims under Articles 3, 8, 12 and 20 were deemed admissible the Committee found the allegations under Articles 2, 27, and 29 of the Convention were not sufficiently substantiated and therefor inadmissible.
The Committee also decided M.B. v. Spain where similar issues regarding incorrect determination of age
Brief Summary of the Facts
M.B. (the author) is also a citizen of Guinea born on January 1, 2000. The author arrived in Almeria on June 3, 2017, while he was still a minor. M.B. reported being a minor to the Red Cross personnel following interception at sea and at his first contact with Spanish police. However, the police registered him as age of majority, recording his date of birth as January 1, 1996. The Spanish authorities notified M.B. of his pending return to Guinea. He was subsequently placed in the Centre of Internment for Foreigners (CIE) in Madrid, an immigration detention centre for adults. M.B. then made an application for asylum. Due to his belief that a minor could not apply for international protection, he did not state his age of minority to international protection officials. M.B.’s asylum application was denied. Similarly to M.B.S. above, Fundación Raíces, acting on behalf of M.B., requested suspension of the author’s deportation order before 8 different authorities. In addition, the NGO requested M.B. be transferred from the CIE to the minors’ protection services in Madrid. Copies of the author’s birth certificate and judicial certificate of the birth certificate were provided to the 8 bodies. One week later the originals of these documents were provided. The author was released from the CIE without an appointed guardian or referral to services required for unaccompanied minors.
In the complaint before the Committee, M.B. argued his rights under the Convention on the Rights of the Child had been violated due to the treatment received from the Spanish authorities. Specifically, M.B. argued a violation of Article 3 (best interest of the child); Article 3 together with Article 18 § 2 (development of institutions and services for the care of children); Article 3 § 2 with Article 20 § 1 (right of children without family environment to special protection); Article 8 (right to identity), the author’s right to be heard (Article 12), Article 27 (right to an adequate standard of living) and Article 29 (right to education).
Scope and Admissibility
The Spanish authorities argued the complaint inadmissible on the basis that M.B. was not a minor. The State based this assertion on the lack of biometric data on the identity documents provided, M.B.’s appearance at the time of arrest and the failure of the author to claim being a minor on arrival in Spain. As in M.B.S. above, the Committee emphasised the burden of proof on the State to provide evidence to the invalidity of the author’s birth certificate.
On admissibility the Spanish authorities argued M.B. had not exhausted all available domestic remedies, such as requesting the Public Prosecutor to conduct a medical age assessment, requesting a review of the decision to not appoint a guardian or appeal the deportation order. The author argued these remedies are inaccessible and ineffective, particularly given the imminent expulsion of M.B. The Committee found it had not been proven that such remedies would have been effective given the imminent deportation of M.B., as per N.B.F v. Spain and D.D.v. Spain.
The Committee however found that claims of violation under Articles 18 § 2, 27 and 29 had not been sufficiently substantiated for admissibility.
The remainder of this post will analyse the key issues related to the admissible claims specifically, Articles 3, 8, 12 and 20 of the Convention on the Rights of the Child.
Identified Issues with Spanish Response to Unaccompanied Minors
Determining in an Age of Uncertainty
As acknowledged by the Committee in these complaints the assessment of a potential unaccompanied minor’s age is significant due to the subsequent response of State authorities and the extent of protection available depending on the outcome of such an assessment (M.B. v. Spain, § 9.8; M.B.S. v. Spain, § 9.8).
In both complaints the Committee held that only in the absence of identity documents should State authorities conduct an age assessment based on physical and psychological determinants. Assessments for the determination of age should include both a physical and psychological assessment of the potential minor in a language they understand by paediatricians and specialists of development, as stated in the UNCRC and UNCMW Joint General Comment No. 23 (§ 4). This standard reiterated in both M.B. and M.B.S. has also been previously stated by the Committee in General Comment No. 6 (§ 31) as well as in the UN High Commissioner for Refugees (UNHCR) Guidelines on International Protection: Child Asylum Claims (§ 75). General Comment No. 6 calls for benefit of the doubt to be given where uncertainty of the person’s age exists, as such where a claim of minority is being made that persons ought to be treated as such. This presumption of minority is also provided for under Article 25 § 5 of the Asylum Procedures Directive following a medical assessment. These provisions are set out to ensure the best interests of the child remain a priority through the age determination procedures. A violation of Article 3 was found in M.B. due to the age assessment being limited to the authors’ physical appearance.
While M.B.S. received physical medical assessments such as dental and X-ray such evidence is limited in probative value given uncertain margin of errors of the tests used. The Committee emphasised the need for identity documents to take precedence with age determination procedures in the absence of documentation to analyse physical and psychological considerations. The European Asylum Support Office (EASO) has previously stated that no age assessment method provides accurate results on the age of a person.
Right to Identity
In both complaints the authors argued the failure to recognise their ages as provided by their birth certificates denied the authors their right to identity. The Committee held that date of birth of a child is part of their identity. As the Spanish authorities are obliged to assist in the protection of a child’s identity the disregard held for the authors’ birth certificates constituted a breach of Article 8 in both complaints.
Presumption of Validity of Documents
In assessing the admissibility of M.B. and M.B.S.’s complaints the Committee found the authors had substantiated their claim that their right to presumption of minority had not been respected. Previously the Committee has emphasised that during the age assessment procedures the persons in question should be granted the benefit of the doubt and treated as a child (N.B.F. v. Spain, § 12.3). This stance was taken in both M.B. and M.B.S. The Committee emphasised the need for State-issued documents to be considered valid unless evidence states otherwise. This requirement is in accordance with previous caselaw of the Spanish Supreme Court. As the Spanish authorities disregarded both authors’ birth certificates as proving their age, without officially contesting the validity of such documents with officials in Guinea, focusing instead on the physical attributes of the unaccompanied minors the Committee found a violation of Article 3 in both instances.
Appointing a Guardian
The Committee in these complaints found the failure of the Spanish authorities to appoint a guardian to unaccompanied minors breached Article 12. The requirement to appoint a guardian or legal representative as soon as possible and free of charge was previously established by the Committee in A.D. v. Spain and General Comment No. 6 (§ 33).Given the vulnerable nature of unaccompanied minors competent guardians and legal representatives are vital in guaranteeing a child’s right to be heard under Article 12 of the Convention and ensuring the best interests of the child are prominent under Article 3, which has been established in A.D. v. Spain, A.L. v. Spain and J.A.B. v. Spain. The Spanish authorities continued treatment of M.B. and M.B.S. as adults, despites doubt regarding their age violated the presumption of minority in addition to preventing the appointment of a guardian. As such the failure of the Spanish authorities to appoint a guardian to M.B. and M.B.S. constituted a violation of Articles 3 and 12.
The Committee in addition found the Spanish authorities had failed to provide State protection to the authors despite their acute vulnerability as unaccompanied minors, which was subsequently considered a violation of Article 20 § 1.
Conclusion
The number of individual complaints which have been brought to the Committee against Spain relating to the treatment of unaccompanied minors, suggests, in itself, the need for urgent reform. The Committee has recommended that Spain comply with the requirements of the Convention on the Rights of the Child through the acceptance of State-issued documents as authentic, the prompt appointment of a qualified legal representative, the prompt appointment of a competent guardian even where age determination is pending, and development of an effective and accessible appeals mechanism. The reforms recommended by the Committee would impact upon thousands of young persons, with 7,745 age determination procedures opened in 2019, and 2,477 of these declared as adults according to the Prosecutor’s Office 2020 Annual Report. Fundación Raíces has highlighted repeated violations of the Convention on the Rights of the Child, established by the Committee. Despite consistent condemnation by the Committee, reforms have not yet been adopted.
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