D.D. v. Spain

UN CRC rules against returns of unaccompanied minors in Melilla

On 1 February, the UN Committee on the Rights of the Child (CRC) delivered its decision in Communication 4/2016 (D.D. v. Spain) concerning a complaint brought by a Malian national who was returned from Melilla to Morocco as an unaccompanied asylum seeking minor.

After fleeing the war in Mali, the applicant crossed the border fence between Morocco and the Spanish enclave of Melilla. He was apprehended by the Spanish authorities at the fence and immediately sent back to Morocco. He was not identified as a minor nor had the chance to express his willingness to apply for asylum and to seek legal assistance. After the applicant entered Spain for a second time, he gained access to legal assistance and the case was brought before the UN CRC

On admissibility, it was first clarified that irrespective of whether the author is considered to have entered Spanish territory, he was found to be under the effective control of the Spanish state. Following this, the Committee held that in the absence of a formal expulsion order, that could have been challenged by the author, there was no need to exhaust domestic remedies as they were simply not available. It further went on to highlight the general obligation upon States to take all necessary steps to identify unaccompanied minors as soon as possible and, particularly, at the border.

The Committee emphasised that, under the Convention on the Rights of the Child, States must conduct an initial assessment prior to any removal, which has to include, inter alia, age and vulnerability assessment. In the case in question, the authorities failed to conduct proper identification procedures and they did not give the applicant an opportunity to object to his deportation in violation of his rights under articles 3 and 20 of the Convention. It further held that considering the situation of violence against migrants in the border area with Morocco and the ill-treatment to which the complainant was subjected, the failure to carry out an assessment of the possible risks involved and to take into account the complainant's best interests violated articles 3 and 37 of the Convention in the light of the principle of non-refoulement. In this vein, the overall circumstances of the child's deportation, including him being detained and handcuffed without any legal and interpretative assistance, constituted treatment prohibited by Article 37.

In order to prevent these violations in the future, the CRC instructed Spain to amend domestic legislation that authorises summary expulsions in Ceuta and Melilla and ordered Spain to compensate the complainant for the harm he suffered.

Based on an unofficial translation by the ELENA Weekly Legal Update. A third-party intervention was submitted in this case by the International Commission of Jurists (ICJ), ECRE, AIRE Centre and the Dutch Council for Refugees and can be found here.

ELENA Weekly Legal Update - 22 February 2019