Immigrant minors to be interned and deported
Jesús Cardenal, the Spanish Fiscal General del Estado (state prosecutor) issued an order on 23 October 2003 on the guidelines to be followed by fiscales (prosecutors) in instances in which "the illegal entry of immigrant minors" is intercepted. The order was issued in response to an increase in the arrivals of immigrant minors in boats making the sea-crossing from Morocco to Spain - which has seen 21 minors among the passengers in a boat that reached Spain in late September, and 29 minors arriving in Algeciras (Andalucía) on the morning of the day when the order was issued. The prosecutor´s instructions look to undermine the principle under which Spanish public authorities have a duty of care towards immigrant minors, particularly if they are "defenceless" (desamparo in Spanish, a legal status involving such factors as the absence of parents, or means of subsistence), by arguing that in many cases they are neither minor, nor "defenceless". This precept is dismissed by Cardenal as a "legal loophole".
The five guidelines that the fiscal general issued look to: 1) prevent fiscales from considering minors who are over sixteen years old as minors (people are considered adult at eighteen under Spanish law); 2) stop fiscales from granting them the legal status as "defenceless" unless exceptional circumstances apply; 3) instruct them to decree their detention, informing the minors´ prosecution service (Fiscalía de Menores) about this measure "immediately, and in any case within the first 24 hours" unless exceptional circumstances such as an "evident situation of "defencelessness" apply, as well as soliciting the "return of the minor to his/her place of origin within the shortest possible delay"; 4) if the return cannot be carried out within the first 48 hours of detention, the fiscales are instructed to ask for authorisation from the relevant judge from the minors´ court to have them interned in a centre for minors; 5) finally, fiscales are told that any appeals against an "administrative decision" to repatriate a "non-defenceless" minor will be subject to authorisation by the Fiscal Jefe (head of the prosecution services), who will have to submit a detailed report on the merits of the case to the Fiscal General del Estado.
In a letter which appeared in El País newspaper on 12 November 2003, Félix Pantoja García, a fiscal and spokesman for the Consejo General del Poder Judicial (CGPJ, the General Council of Judicial Power), argued that the order seeks to establish "a break with the model of fiscal established in the Constitution by contravening the principles of legality and impartiality" and " by serving a government policy on immigration that only considers the economic and administrative difficulties of complying with the law".
The order, which contravenes both the Convention on the Rights of the Child which Spain ratified in January 1991, and principles of non-discrimination of minors, is said to be on the basis of the need:
"to maximise precautions for the system of rights and guarantees of the European Union member states not to be used fraudulently by the infringers of... immigration laws to impose a residence that is completely inadmissible".
Writing of "an avalanche of undocumented foreign minors" who enter Spain "without a family nor means of subsistence", leading to protection and to "future legal residence in Spain". Cardenal goes on to offer statistics on the number of unaccompanied migrant children (6,239, mainly Moroccan) under public care, and alarmist figures on Moroccan demography (there are 9,184,000 children under 15 years of age, 40% of whom are uneducated, and are likely to be pushed to emigrate) to indicate that huge numbers of Moroccan children may flood into Spain in the future "at ever younger ages". The problem has unpredictable "social, economic and cultural" consequences such as the "overwhelming" of the Spanish social services´ child protection infrastructure, and the Fiscal General thus feels that it is necessary to establish general criteria for decision-making by fiscales. The "occasional submission by a prosecutors´ office of an appeal" against the decision to return foreign minors taken by administrative authorities is offered as evidence of this need to "unify" criteria.
The two key aspects of the order are: a) being a minor, unaccompanied by adults, does not indicate a condition of "defencelessness" and b) the return to their places of origin can be applied to foreign minors who enter Spain illegally. The legal argument offered by Cardenal indicates that the Spanish public authorities should not automatically have to take on the duty of care over all foreign citizens who are under 18 years of age on Spanish soil. He excludes minors who are "emancipated", that is, lead an independent life and should thus be deemed capable of looking after themselves, from this duty of care, before excluding all unaccompanied foreign minors attempting to enter Spain illegally: "Overall, with regards to those seeking to enter illegally without being accompanied by their parents, it is impossible to imagine any clearer evidence of their (leading an) independent life." Pantoja García sees this interpretation of the status of "desamparo" as "incompatible" with the Convention on the Rights of the Child and Spanish legislation on the protection of minors.
Reactions to the order have been mixed. The government, through the Interior Minister, Ángel Acebes, welcomed the order, and announced that "we will act in compliance with the fiscal´s order, with the maximum respect for minors´ rights and guarantees". On the other hand, the Madrid regional minors´ ombudsman, Pedro Nuñez Morgades, asked for the order to be revoked, because "the fiscales are the people responsible for protecting and defending minors". María Luisa Cava de Llano, the Spanish Defensor del Pueblo (Ombudsman), argued that under Spanish law general criteria cannot be adopted in the case of minors, and the condition of "desamparo" must be established on a "case-by-case" basis. She added that "these children are not offenders and, furthermore, the minor court judges do not have the competence to order their internment".
Sources: Instrucción 3/2003 (Order 3/2003). Sobre la procedencia del retorno de extranjeros menores de edad que pretendan entrar ilegalmente en España y en quienes no concurra la situación jurídica de desamparo.Text available from the Real e Ilustre Colegio de Abogados de Zaragoza website: www.reicaz.es/extranjeria.info/inicio/index.htm (Full text in Spanish, PDF)
El Pais 27.9, 24.10, 30.10, 31.10,24.10, 27.10, 28.10, 29.10, 4.11, 12.11.2003.
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