Everything indicates that the Ministry of the Interior has violated the Aliens Law of 2000 and, probably, the Convention on the Rights of the Child, an international treaty that was incorporated into the Spanish legal system in 1990. Spain has repatriated 55 to Morocco (for now ) unaccompanied minors without following the legal procedures established in those regulations.
Unaccompanied minors are, above all, vulnerable children. Normally without the ability to act in the world of work or in other activities. They add to this condition of fragility that of not having family protection at their side (which, at times, it is true, is more repressive than protective).
The so-called MENAS accumulate another weakness: not having the protection of their State of origin, that is, being in a foreign country and cultural environment, in which they lack the status of a national, which attributes some essential rights to the individual. Hence, the international community provides a series of protections, which translate above all into obligations for the host State. In this case, Spain.
The greatest contribution of international law to the protection of unaccompanied minors is the momentous Convention on the Rights of the Child. It was approved as an international human rights treaty on November 20, 1989. Article 12.2 states that “the child will be given the opportunity to be heard in all judicial or administrative proceedings” that affect them.
Has this individual examination been formally carried out on Moroccan minors, as an action prior to repatriation? Are there official records that reflect it? Has there been legal advice for minors? Have they been able to present asylum applications in Spain? These and other unknowns have not yet been adequately answered as I write this article.
International treaties are below the Constitution, but above the law. The Convention on the Rights of the Child has the highest rank among the sources of Spanish law. The State has the obligation to make effective all the rights recognized in the Convention. There are many such rights, especially those related to family relationships, such as the protection of children deprived of their usual environment (art. 20 of the Convention), ensuring that they can benefit from care that substitutes for family care.
I recommend reading the Convention so that you can see the breadth of rights it recognizes for children in all areas of their lives. It is one of the most relevant and profound texts in the defense of human rights at a universal level; with the most powerful legally binding force and with the moral solidity proper to the protection of the human beings most in need of it. Hence, the suspicion that a State may have ignored the Convention on the Rights of the Child always triggers an immediate reaction from political groups, NGOs or the media. The Spanish Government should be transparent in managing the repatriation of unaccompanied minors from Morocco. It hasn’t been until now. Inexplicably. Because a repatriation is not illegal, but only if the established procedures are followed and the interest of the minor is respected.
The Public Prosecutor’s Office is the institution with the power par excellence to protect minors and their fundamental rights. It is not surprising, therefore, that the Immigration Law requires in its article 35.5 that, in a repatriation process, a Report of the Prosecutor and of the social protection services be previously produced. The very Agreement of 2007 with Morocco in this matter, which is being applied – Agreement, by the way, that should be piloted by the Ministry of Labor, as prescribed by said Agreement – refers to the Spanish legislation on foreigners for these cases that have so concerned to institutions and organized civil society.
These requirements do not appear to have been met. They are simple. Very clear. Not difficult to abide by. But Interior – we do not know why – has not followed that legal route. It should rectify. Failing that, the corresponding legality control is the competence of the judiciary.
At the bottom of all this, we could surely find a pretense of opacity. But it turns out that transparency is key as an instrument of protection in administrative procedures that affect children, and in particular unaccompanied minors.
It is legitimate to request from the Executive – even more so in a period of non-meeting of Parliament. maximum clarity before public opinion. It is as important as compliance with the Convention on the Rights of the Child and the Aliens Law. A repatriation of minors cannot and should not be silent.