The UN Committee on the Rights of the Child has determined that an unaccompanied minor’s rights under the UN Convention on the Rights of the Child were violated when he was deported from Melilla to Morocco by the Spanish Guardia Civil.
The claimant was a citizen of Mali and a minor born on 10 March 1999. He left his village in Mali in 2013 because of the armed conflict. He arrived in Morocco in February 2014 and spent almost a year in the informal migrant camp on the Gurugú mountain near the Spanish enclave Melilla. The adolescent attempted several times to climb the border fences that separate Melilla from the Moroccan region. On 2 December 2014 he reached the third fence and saw that other people who had climbed over the fence and reached the other side were being driven back on the spot by the Spanish security forces and were being handed over to the Moroccan armed forces. The claimant then waited on top of the fence for several hours because he was afraid of being deported and possibly mistreated by the Moroccan armed forces.
While he waited on the third fence, he was not offered any help and he did not have any access to water or food. Additionally, he could not communicate with the Guardia Civil because he did not speak any Spanish, and there was no interpreter. When he finally climbed down from the fence, he was arrested by the Guardia Civil and subsequently deported to Morocco. The Spanish authorities did not at any point check his identity, and he was never given an opportunity to explain his personal circumstances, give his age, contest his imminent deportation or claim protection as an unaccompanied child. Nor did he receive any assistance from lawyers, interpreters or doctors. On 30 December 2014 the teenager managed to enter Spain via Melilla, where he received help from an NGO, which placed him in a home for minors.
The UN Committee on the Rights of the Child had to decide whether the Spanish Guardia Civil violated the claimant’s rights under the Convention during the previously described incident on 2 December 2014. The committee was of the opinion that the duty of the state to grant unaccompanied children special protection and assistance pursuant to Article 20 of the Convention also applies to children ‘who fall under the jurisdiction of the state while they are attempting to enter the state’s sovereign territory’. The committee also believed that ‘the positive aspect of these protection obligations also extends to requiring States to take all necessary measures to identify children as being unaccompanied or separated at the earliest possible stage, including at the border’.
Accordingly, in order for the state to fulfil its obligations under Article 20 of the Convention and to protect the child’s welfare, it is imperative and necessary for it to conduct a preliminary assessment of the individual prior to any removal or deportation. This assessment should include the following stages:
- Priority assessment to determine whether the person concerned is an unaccompanied minor;
- Verification of the child’s identity by means of an initial interview; and
- Assessment of the child’s particular situation.
The committee also determined that in accordance with the obligations under Article 37, a child should not be brought back to a country ‘in which there are reasonable grounds to assume that a real risk of irreparable damage to the child exists’.
In the present case, the committee determined the following:
- The claimant had come to Spain as an unaccompanied child and was deprived of his family environment.
- He had spent several hours on the border fence of Melilla and did not receive any form of assistance from the Spanish authorities.
- As soon as he had come down from the fence he had been arrested, handcuffed and sent straight back to Morocco by the Spanish Guardia Civil.
- He had not received any assistance and an interpreter had not been available to enable him to assert his rights.
The committee is of the opinion that the claimant’s rights under Articles 3 and 20 of the UN Convention on the Rights of the Child were violated when he was deported to Morocco because he was an unaccompanied minor. Lastly, the committee also held that the manner in which the teenager, as an unaccompanied minor, was treated, is prohibited under Article 37 of the Convention.
The committee concluded that Spain is obliged to grant the claimant reasonable compensation. Furthermore, Spain must take steps to prevent similar violations in the future and must desist from and revise its practice of automatic deportation at the border.
Translated from German into English by Rosa Foyle