CRC: Spain’s age assessment procedures violate migrant children’s rights

Tuesday, October 13, 2020

On 13 October 2020, the Committee on the Rights of the Child (CRC) published it views in the case of MB (CRC/C/85/D/28/2017).

The case concerned a Guinean national, born in 2000, who arrived in Spain in June 2017 after being intercepted on a boat. Even though he told the Red Cross and the police that he was a minor, the police registered him as an adult. A few days later, the investigating judge informed MB that he would be returned to his country of origin, after which he was transferred to a Detention Centre for Foreigners (CIE), where he applied for asylum. During his interview he did not contest the consideration that he was an adult, because he believed that minors could not apply for asylum.
On 20 July 2017, MB’s representatives requested the Spanish authorities to suspend his detention and to hand over the child to the child protection services in Madrid. They managed to obtain his birth certificate from Guinea, which proved that he was under 18, and sent the document to the Spanish authorities, who disregarded the documents for being false. Finally, the child was released from the CIE, after 52 days of detention, and was housed in a social residence for adults. However, he was neither assigned a guardian nor was he recognized as a minor.
The CRC underlined that the determination of the age of a young person who claims to be a child is of fundamental importance, as it determines whether they can obtain international protection as a child, and whether the person in question can invoke the rights under the Convention. The Committee further underlined that there is a presumption of authenticity attached to the documentation that a minor may present and that states are not compelled to include biometric data on a birth certificate. Relying on General Comment No.6, the Committee denounced the practice, according to which the authorities solely take into account the physical aspect of a person and disregard his psychological maturity, which it failed to assess on a safe, impartial and scientific basis.  Finally, the Committee emphasized that it is important for children to have access to a free legal representative and interpreter throughout the age determination procedure. Given all of these elements, which were considered to be against the best interest of the child, the Committee stated that Spain had violated , inter alia, Articles 3 and 12 of the Convention.
In addition to finding other violations of the Convention in the case of MB and affording the applicant an effective reparation, the Committee recommended Spain to adopt a number of general measures in order to bring its age determination procedure in conformity with the Convention. Moreover, it recommended Spain to develop an effective and accessible redress mechanism for young unaccompanied child migrants to be able to benefit from a review of the legal age determination, where the latter  was carried out without the necessary guarantees to protect the best interests of the child and their right to be heard.
Based on an unofficial translation by the EWLU team.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Best interest of the child
Child Specific Considerations
Individual assessment
Unaccompanied minor