Saturday, September 25

Everything required by law to return a minor alone to another country

Last Friday, August 14, the Ministry of the Interior began the repatriation of the 800 unprotected minors who remain in Ceuta after having accessed the autonomous city last May. The forced return of children and adolescents has confronted the department headed by Fernando Grande Marlaska with the Ministry of Social Rights and Agenda 2030 headed by Ione Belarra, the Prosecutor’s Office and NGOs, who question the legality of the almost fifty repatriations that have been carried out up to the date.

Prosecutor’s Office, Ministry of Social Rights and NGO question the legality of the repatriation of minors from Ceuta

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Interior has protected these returns in an agreement signed in 2007 between Spain and Morocco on “prevention of the illegal emigration of unaccompanied minors, their protection and their concerted return” which ensures that the “interests” will be respected “at all times” and the rights “of minors and that Morocco will take care of children and adolescents until, as soon as possible,” they are handed over to their parents. If they do not have parents, their guardianship will fall on L’Entraide Nationale, a public institution of social assistance. This agreement also indicates that the Spanish authorities will act in these return procedures “with strict observance of Spanish legislation.”

In other words, the returns of minors must “necessarily” adhere to current Spanish legislation on repatriation, as recalled in her order by the Ceuta judge who this Monday stopped the return from the autonomous city of nine Moroccan minors. Both the so-called immigration law, of the year 2000, and the regulation that develops this norm, of 2011, “require for the repatriation of unaccompanied foreign minors the initiation of an administrative file, which must include data as essential as those relating to to the filiation and the social and family circumstances of their environment in the country of origin “, recalls the magistrate.

Thus, although the aforementioned law on foreigners contemplates that the Government will promote the establishment of “collaboration agreements” with the countries of origin for “the return of unaccompanied minors” – as Interior is in charge of recalling – this rule also establishes in its Article 35.5 that these procedures for the repatriation of children and adolescents require a “prior” report from the services for the protection of minors and the Public Prosecutor’s Office. Furthermore, minors – if they have “sufficient judgment” due to their age – have the right to be heard during the process. And even those over 16 years of age are recognized as having their “capacity” to act in the administrative repatriation procedure and before the courts, where they can intervene personally or through a representative.

The 2011 regulation develops this procedure and establishes that the agreement to initiate the procedure agreed by the competent government delegate or sub-delegate must be notified “immediately” to the minor, to the Public Prosecutor’s Office and to the entity that holds legal guardianship, custody, provisional protection. or guard, who will have ten business days to “formulate as many allegations of fact or law as they deem appropriate, as well as propose the pertinent evidence on the alleged facts.”

Once the results of the tests carried out and the mandatory reports are in the file – which must include information related to filiation and the social and family circumstances of their environment in the country of origin – what is called “begins.” hearing procedure “, to which the Public Prosecutor, the guardian and, where appropriate, the legal defender or the representative designated by the minor must be summoned. “In this process, the presence of the minor who has sufficient judgment to express what he considers in relation to his repatriation will be guaranteed,” says the royal decree. And only once this step is completed, will the Government delegate or subdelegate “decide, in accordance with the principle of the best interests of the minor, on the repatriation of the minor to his / her country of origin or where his / her family members are or on his / her permanence in Spain. “.

In her order, the magistrate maintains that in the case of the nine Moroccan minors whose return was paralyzed, “nothing of the order” in the aforementioned royal decree was carried out. “Neither has the administrative procedure been processed, complying with the aforementioned mandatory procedures, nor has there been an express resolution on said issue with respect to each of the minors enforceable in our legislation. Omission that has prevented all interested parties from knowing the fundamentals that justify the de facto decision adopted “, says the resolution, against which there is no recourse.

Criticisms of the Prosecutor’s Office and NGOs

The Prosecutor’s Office also requested in writing this Saturday the Ministry of the Interior to justify one by one the returns to Morocco of each unaccompanied child or adolescent that the Police have transferred in vans from Ceuta to Morocco. In the official letter sent to the Secretary of State for Security chaired by Rafael Pérez Ruiz, the Prosecutor for the Coordinating Chamber for Minors, Eduardo Esteban, is interested in the “measures adopted to guarantee the respect of minors, indicating whether it has been initiated an individual file relative to each minor, if this has been heard in it, and each file has been communicated to the prosecutor and any other matter that it deems appropriate to communicate “.

In addition, several non-governmental organizations, including Save The Children, have denounced the treatment of minors and have described the measures as “collective expulsion.” In a statement, said NGO assures that these returns cannot be accepted and even less if they are made “against the will of the child or adolescent.” The organization has also ensured that “so that the return can be considered as the solution that best guarantees the rights of the minor, it must be carried out after having carried out an exhaustive and individualized evaluation of their best interests”.

The NGOs, which have accused the Interior of not obeying some parts of the regulatory text, could take charge of the guardianship of minors according to the immigration law: “The General State Administration and the Autonomous Communities may establish agreements with non-governmental organizations. governments, foundations and entities dedicated to the protection of minors, in order to attribute to them the ordinary guardianship of unaccompanied foreign minors “.