Spain: "Racial profiling of people of African descent is endemic"

"Racial profiling of people of African descent is endemic"
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The UN's Working Group of Experts on People of African Descent said last week that "racial profiling of people of African descent is endemic" in Spain, upon the conclusion of a fact-finding visit to the country. A host of other criticisms and shortcomings are contained in a statement issued by the group.
Statement to the media by the United Nations Working Group of Experts on People of African Descent, on the conclusion of its official visit to Spain, 19-26 February 2018 (originally published here)

Madrid, 26 February 2018

1. The Working Group of Experts on People of African Descent thanks the Government of Spain for its invitation to visit the country from 19 to 26 February 2018, and for its cooperation. We thank the Ministry of Foreign Affairs and Cooperation. We also thank the United Nations agencies in Madrid for their support to the visit.

2. The views expressed in this statement are of a preliminary nature and our final findings and recommendations will be presented in our mission report to the United Nations Human Rights Council in September 2018.

3. During the visit, the Working Group assessed the human rights situation of people of African descent living in Spain, including African migrants and asylum seekers, and gathered information on the forms of racism, racial discrimination, xenophobia, Afrophobia and related intolerance they face. The Working Group studied the official measures taken and mechanisms to prevent systemic racial discrimination and to protect victims of racism, as well as responses to multiple forms of discrimination.

4. As part of its fact-finding mission, the Working Group visited Madrid, Barcelona, Almeria and Ceuta. It met with senior officials of the Spanish Government at the national, regional, provincial and local levels, the legislative, judicial branches, law enforcement officials, officials of the national Ombudsman’s office as well as the regional ombudsman of Cataluña, United Nations entities, non-governmental organizations, as well as communities and individuals working to promote the rights of people of African descent in Spain. It also visited the Temporary Migrant Reception Centre (CETI) in Ceuta and the Aluche Aliens’ Detention Centre (CIE) in Madrid.

5. We thank the civil society organizations, human rights defenders, lawyers, academics and individuals we met during the visit, who are working to promote and protect the rights of people of African descent in Spain, creating initiatives and proposing strategies to address structural racism, racial discrimination, xenophobia, Afrophobia and related intolerance.

6. The protection of human rights and the prohibition of racial discrimination is enshrined in the Constitution. The Comprehensive Strategy Against Racism, Racial Discrimination, Xenophobia and Other Related Intolerance (2011) and the Framework Protocol for the Protection of Victims of Trafficking (2011) are important policy documents. The establishment of a number of institutions at the national, provincial and local levels including the Council for the Elimination of Racial or Ethnic Discrimination, specialized offices against hate crimes and discrimination in all provincial prosecutors’ offices in Spain, the Spanish Observatory on Racism and Xenophobia (OBRAXE), are also important initiatives to combat racial discrimination.

7. We welcome the initiatives being undertaken by the Observatory including training programs for educators and school managers, health professionals and law enforcement officials, as well as initiatives to enhance inter-ministerial cooperation to collect information on hate crimes and combating hate speech. We also welcome efforts to reach out to civil society including through the provision of funding. In Madrid, we welcome the creation of a police unit focusing on diversity and hate crimes. In Barcelona, we welcome the work of the Office of Non-Discrimination at the municipal level. We also welcome the work of the independent National Ombudsman which has put a spotlight on racial profiling and recommended government action. The efforts at the development of protocols to address racial discrimination in Barcelona is also encouraging.

8. The Working Group also welcomes the civil society initiatives to promote the International Decade for people of African descent in Spain.

9. Despite the positive measures referred to above, the Working Group is concerned about the human rights situation of people of African descent in Spain who experience racism and racial discrimination. There exist major gaps between law and practice in protecting people of African descent from racism, racial discrimination, xenophobia, Afrophobia and related intolerance.

10. Deeply ingrained in the official discourse was the belief that racial discrimination was mostly experienced by non-Spanish migrants and refugees of African descent, and that there was no structural and institutional racial discrimination against Spanish citizens of African descent. Civil society reported people of African descent were invisible and the laws did not offer any protection from the everyday racism they faced.

11. The Working Group notes with utmost concern the absence of disaggregated data based on ethnicity or race. The data available is collected on the basis of nationality as a measure to guarantee equality. In reality, it leads to the invisibility of the community of persons of African descent and prevents racism, racial discrimination and social exclusion from being effectively addressed. Data disaggregated along ethnicity is vital in understanding the severity and scope of racial discrimination against people of African descent, and to develop targeted and holistic responses.

12. The Working Group found that racial profiling of people of African descent is endemic. Time and again, the Working group heard how people of African descent are always assumed to be undocumented immigrants and thus disproportionally stopped at street checks in comparison to people of other ethnicities. They run the risk of being singled out more often in ports and public transport. Being racially profiled is the lived reality of people of African descent simply because of the colour of their skin. The independent national ombudsperson has also made recommendations to end racial profiling. In addition, Spanish legislation lacks a specific prohibition of racial profiling and does not have clear criteria for law enforcement agents to conduct identity checks.

13. While appreciating that article 22.4 of the Penal Code establishes racial motivation as an aggravating circumstance, the Working Group particularly concerned at the effects of the Law on Citizens’ Security on the rights of persons of African descent. The deterrent provisions of the Law on Citizens’ Security have eventually pushed people into self-censorship, resulting in a failure to investigate and prosecute perpetrators and to provide redress to victims. Therefore, it foments impunity of law enforcement agents and under-reporting of discriminatory acts.

14. The Working Group is concerned by lack of representation of people of African descent at all State, regional and municipality levels, as well as all the judiciary and the legislative. Whilst the authorities explained that this is due to the demographics of recent migration from Africa and requirement to be of Spanish citizenship, the Working Group is concerned that the underrepresentation may be attributed to racial bias and continue to perpetuate stereotypes of people of African descent as migrants and not contributors to Spanish society. Lack of representation of people of African descent in the police force may tend to strengthen police-community tensions. The Working Group found that people of African descent were also largely unrepresented in the media and the education sectors, among others.

15. The Working Group recognizes the efforts made by Spain in relation to the migrant crisis and rescue operations at sea that saved numerous lives. At the same time, differing approaches to asylum in the mainland and in Ceuta and Melilla undermines international protection of people of African descent. Arrivals to the Andalusian coast, many coming from Sub Saharan African countries, while usually being given access to the territory, are regularly detained under an irregular migration legal framework. There is no mechanism in place to identify their protection needs, refer them to the asylum channel, and prevent their detention. The practice of regularly detaining sea arrivals who state from the outset their intention to apply for protection, acts as a deterrent to claiming asylum and is in contradiction with the asylum legislation.

16. The Working Group notes with concern collective expulsions and the number of “pushbacks” at the borders of Spain in Ceuta and Melilla. The Working Group notes the ongoing appeal process, further to the ruling of the European Court of Human Rights (ECHR) issued on October 3, 2017, where Spain has been condemned for pushbacks or collective expulsions. The Working Group furher notes the urgency to modify the working criteria of the agents in charge of border control in Ceuta and Melilla, so that they can hand over to the National Police those persons who try to access the Spanish territory to carry out the procedures established by the immigration regulations, and can inform interested parties about the possibility of requesting international protection.

17. The Working Group notes that, in accordance with article 62 bis 1 of the Immigration Law, the Immigration Detention Centres do not have a prison status. The Working Group observed that the centres visited function as prisons in practice.

18. While commending the State for reducing the maximum length of detention in CIEs to 60 days, the Working Group notes with concern that the immigration detention, that is a form of administrative detention whereby the individual has not committed a criminal offence, continues to be commonly used. Taking into account the suffering of people of African descent in the journey and multiple violations of rights, subsequent detention has a deteriorating effect on the mental health of a person of African descent. The Working Group notes positively that children or families with children are not detained in CIEs, although an allegation was received in Aluche CIE that children were being detained while their ages were being determined. Immigration detention of children is never in the best interest of a child and always constitutes a violation of the rights of the child.

19. The WG found that migrants detained in CIE in Aluche fell broadly into three categories: a) individuals who had been convicted of a criminal offence, who had served a custodial sentence and were to be deported; b) migrants in an irregular situation who had been identified during spot checks; c) migrants in an irregular situation who had been rescued at sea and transferred to CIE for expulsion. Concerning the first category of detainee, the WG was concerned to learn that individuals with prison sentence were mixed during the day with other categories of migrants.

20. Of serious concern to the Working Group is that the majority of women of African descent are trafficked for sex work in Spain and the rest of Europe. At the CETI in Ceuta, the Working Group noted with concern that pregnant women and women with little children were facing difficulties in accessing basic needs. The Working Group was informed of the existence of micro-networks which are involved in human trafficking. Those women who are later expelled are most likely to be re-trafficked to Europe. The Working Group is also seriously concerned about the large number of unaccompanied children of African descent who are subjected to age assessment tests, which are not considered accurate thereby in most cases result in a gap in their protection.

21. The Working Group noted deficiencies in the enjoyment of economic, social and cultural rights by people of African descent in Spain. The Working Group learnt of the considerable challenges, such as lack of job opportunities, inadequate access to quality health care, social security, and access to secondary and tertiary education. In the absence of disaggregated data, it is not possible to implement specific measures to address the deficit in the enjoyment of economic, social and cultural rights of people of African descent.

22. The Working Group is concerned that the curriculum does not adequately reflect the history of the trade in enslaved Africans, colonization as well as history and contributions of people of African descent in Spain. The Working Group was also informed about de facto segregation in schools with disproportionately higher dropout rates in schools attended by children of African descent and other minority groups in Spain.

23. The Working Group was informed about the amendments introduced through Royal Decree-Law No. 16/2012 which curtails the right of undocumented migrants to access to public health services.

24. The Working Group is concerned about the widespread exploitation of migrants including people of African descent who face racial discrimination and exploitation in the workplace. Employers of immigrants do not respect labour laws in terms of working conditions and payment of the minimum wage. Workers in the informal sector of the economy, such as street vendors find themselves in particularly vulnerable situations with no social security or rights and experience harassment by law enforcement. Regardless of their levels of education, they do not have access to skilled jobs because of discrimination. Precarious contracts make it impossible to apply for resident status.

25. The Working Group is seriously concerned about the plight of migrant workers who live in appalling conditions in Spain, particularly in Almeria. Besides rampant wage exploitation, the Working Group heard accounts from migrant workers living in shacks made of old boxes and plastic sheeting, without sanitation or access to drinking water. The Working Group learnt that migrants also face structural racial discrimination in housing and social services in areas they inhabited, with limited access to water and electricity and infrequent garbage collection, which they also attributed to structural discrimination. Migrant workers also complained that they were periodically subjected to harassment, extortion and beatings at the hands of the Guardia Civil, allegedly in collusion with the employers.

26. The Working Group learnt that people of African descent in Spain often faced inequalities and multiple forms of discrimination on the grounds of their race, colour, gender, sexual orientation and religious beliefs. Domestic workers, who are predominantly women, are invisible and subjected to long hours of work with no safeguards against abuse. Of particular concern to the Working Group were reports of the children of African descent being taken away from their parents by social services.

27. The Working Group was informed about Spanish festivities using the blackface. For people of African descent met by Working Group, such events are considered offensive, insulting and caricature people of African descent in a dehumanizing way.

28. While authorities are aware of the International Decade for people of African descent at the national level, a national plan of action to promote the Decade has not been developed. At the provincial and municipal level, the Working Group found little awareness about the International Decade. On the other hand, civil society in Spain is knowledgeable about the International Decade and stands ready to work with the Government to implement the International Decade.

29. The following recommendations are intended to assist Spain in its efforts to combat all forms of racism, racial discrimination, xenophobia, Afrophobia and related intolerance:

30. The Government of Spain should consider adopting a comprehensive law against racism, racial discrimination, xenophobia and related intolerance, including measures aimed at preventing acts of racism. It should also consider adopting a comprehensive law against hate crimes, which provides for comprehensive legal, psychological, social and economic assistance and adequate protection, information and repair measures.

31. Legislative reforms affecting people of African descent should be undertaken in consultations with and involvement of civil society representing them.

32. The Working Group strongly recommends that the Government collects, compiles, analyses, disseminates and publishes reliable statistical data disaggregated along ethnic lines on the basis of voluntary self-identification, and undertakes all necessary measures to assess regularly the situation of individuals and groups of individuals who are victims of racism, racial discrimination, xenophobia and related intolerance.

33. The Government should consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

34. The Working Group urges the Government to comply with the recommendations made by the National Ombudsperson Office including those relating to combating racism, racial discrimination, xenophobia and related intolerance.

35. On the subject of racial profiling, the Working Group recommends:

(a) put in place a specific and independent complaint mechanism to address this issue;
(b) implement the National Ombudsperson’s recommendations to end racial profiling, towards a more nuanced official discourse on racial profiling;
(c) conduct specialized training of police officers and public officials to prohibit and punish racial profiling;
(d) carry out specific awareness campaigns to change stereotypes against people of African descent.

36. The Working Group recommends measures to increase representation of people of African descent at all levels in the public administration (including in the OBRAXE and specific entities already established to combat racist hate crimes), the judiciary, prosecution services and law enforcement, as well as other sectors including education and media, among others. Overcoming structural discrimination and unconscious bias also requires positive measures, in accordance with the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.

37. The Working Group urges an end to all forms of collective expulsions and pushbacks of asylum seekers and migrants. Spanish authorities must respect the right of non-refoulement and the right of access to identification procedures. The summary returns should be carried out with a prior evaluation of the risk of return that allows access to the procedures for determining refugee status, since these pushbacks are contrary to the principle of non-refoulement.

38. The Government of Spain should facilitate identification and referral relevant procedures of persons in need of international protection at the border posts, including their safe access to the territory of Ceuta and Melilla when possible persons in need of international protection are detected.

39. The Working Group recommends to the authorities to adopt measures to shorten the delay in processing asylum requests. People of African descent should have access to procedural safeguards to challenge their detention, and the Working Group recommends the introduction of alternatives to detention of migrants, a scaling down of its CIE facilities, resorting to immigration detention only when necessary and proportionate.

40. The Working Group recommends that Spain’s Aliens law be reviewed to be more respectful of asylum seekers’ and migrants’ rights. The overly long period of 10 years for citizenship could be shortened. Pathways to citizenship for migrants including those in an irregular situation should be created and strengthened.

41. The Government should introduce measures to include more people of African descent among officials of the centres of administrative detention for foreigners subject to deportation proceedings, administrative officials involved in refugee status determination, and officials at ports as well as all others involved in the expulsion process.

42. The State must develop a comprehensive human rights approach to dealing with trafficking of people of African descent. Women who are victims of trafficking must be identified and accorded international protection in Spain. There is a need for specialized training to be undertaken by border police, asylum officials and all civil servants, as well as interpreters, social workers, lawyers and judicial authorities dealing with potential victims of trafficking.

43. The Government should as a matter of priority facilitate language and interpretation services in the CIEs and CETIs corresponding to the language spoken by those arriving into Spain. The asylum seekers experience difficulties which limit their understanding of their rights and the services offered to them by the Spanish authorities. Centres in Ceuta and Melilla should have the same standards in language and training courses which asylum seekers are entitled to and receive on the mainland.

44. The Government should periodically review and ensure that textbooks and other educational materials reflect historical facts accurately as they relate to past tragedies and atrocities such as enslavement, trade in enslaved Africans and colonialism. The Government of Spain should give increased visibility to this history and culture of people of African descent through museums, monuments, visual arts and other means.

45. The Working Group recommends the establishment a cultural institute for people of African descent in Spain, run by people of African descent. This institute will afford people of African descent to develop programmes that will add to the richness of cultural diversity in the country. The Government is also encouraged to develop protocols for diversity studies with role models of African descent at all levels.

46. The Government should take all necessary measures to ensure full implementation of the right to adequate standard of living, including the right to adequate housing. Decent housing facilities with associated utility services should be provided to migrants in Almeria.

47. The Government should address the racial discrimination and the de facto segregation in the lack of social services and exploitation in the labour market, including in Almeria. The Government should ensure no discrimination and decent work for all workers, and ensure that domestic workers are not at risk of being exploited or abused. Informal work should also be looked into in view of solving the issue of street sellers, particularly in relation to minors.

48. People of African Descent should have access to health care whenever necessary. Schemes of universal health coverage and the public health system should be ensured without any discrimination on any ground including citizenship and ethnicity. The Government should ensure that health professionals are trained to handle FGM cases bearing in mind the right to privacy of patients. The Government should ensure that migrants and asylum seekers who cannot speak Spanish are assisted in the healthcare system.

49. The amendments introduced through Royal Decree-Law No. 16/2012 which curtails the right of undocumented migrants to access to public health services as provided in several international human rights instruments ratified by Spain should be reviewed. The Government should ensure that detention centres provide adequate health care including addressing trauma cases before expulsions.

50. Protection must be given to women of African descent who have been subjected to sexual and gender-based violence in accordance with international human rights law. The State must also put measures to encourage women to report incidents of sexual and gender-based violence.

51. The Working Group recommends to the Government to support and facilitate an open debate with regards to the Spanish festivities using blackface, and discussions with different groups including people of African descent take place to identify steps that might respond to the views and concerns of all.

52. The Working Group reminds media of their important role as a public watchdog with special responsibilities for ensuring that factual and reliable information about people of African descent is reported.

53. The Working Group urges the Government to involve civil society organisations representing people of African descent when framing important legislations concerning them and providing those organizations with adequate funding.

54. Noting the international engagement of the Government with countries in the Latin American region, the Working Group encourages the Government to support the implementation of the International Decade for people of African descent and the implementation of the 2030 Sustainable Development Agenda within Spain, with focus on indicators relevant for people of African descent. The Working Group recommends a national discourse on reparatory justice to address past historical injustices. In partnership with civil society, Spanish authorities should fully implement the Decade’s Program of Activities, along the Decade’s three themes of recognition, justice and development for people of African descent. The International Decade for People of African Descent presents opportunities to showcase achievements in this regard.

55. The Working Group would like to reiterate its satisfaction at the Government’s willingness to engage in dialogue, cooperation and action to combat racial discrimination. We hope that our report will support the Government in this process and we express our willingness to assist in this important endeavour.

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