Strategic Litigation and The Rights of Migrant Children

Children who arrive alone in a country that is not their own should be placed under the guardianship of public administrations. From that moment on, they should be full holders of the fundamental rights that the Constitution and international treaties recognise for all citizens. But the system is radically flawed when it comes to ensuring that these children enjoy the rights to which they are entitled. And these imperfections are sometimes structural. Strategic litigation is a tool available to citizens, precious to non-governmental organisations working with vulnerable people, that seeks to overcome these systemic imperfections through the initiation of legal proceedings. This paper will focus on the use of strategic litigation to defend the rights of migrant children and adolescents in legal contexts integrated into multi-level human rights protection models.

Migrant Children in Devolved States

In the Spanish legal system, the distribution of power between the State and the Autonomous Communities causes some deficiencies in the care of unaccompanied foreign minors. While migration control and the identification of unaccompanied alien children are the State's responsibility, through the intervention of the Public Prosecutor's Office, the guardianship of these minors, their care, and protection are the responsibility of the Autonomous Communities. And not all the Autonomous Communities have the same degree of responsibility: southern border regions (the Canary Islands and Andalusia, with the autonomous cities of Ceuta and Melilla) assume the guardianship of most of the minors. In such a model, inter-territorial coordination and mutual solidarity should be essential principles of operation. But in practice, this is not the case. This paper will highlight these problems and possible solutions.

Migrant Children under The Covid-19 Pandemic

The panel title speaks of “migrant childhoods” because, as adults, not all children and adolescents who migrate alone have equivalent profiles. While we can find commonalities in all of them, their particular circumstances may identify them with different statuses. An unaccompanied foreign minor may, in turn, be a victim of the trafficking of human beings or be entitled to international protection. This paper focuses precisely on the status of the unaccompanied migrant minor and asylum seeker and how to respond, from a legal perspective, to this situation of particularly intense vulnerability. This paper is contextualised in Spain and the crisis caused by the closing of borders due to the COVID-19 pandemic.

The United Nations Committee on the Rights of the Child Facing Age Assessment

The United Nations Committee on the Rights of the Child (CRC) has already expressed its views on the treatment of unaccompanied foreign minors on several occasions. These pronouncements respond to individual petitions from Spain, and most of them raise problems linked to the age assessment of children. The lack of direct jurisdictional appeal against these procedures determines the inclusion or exclusion of a migrant person from the state protection system without judicial control. Insofar as these pronouncements represent a universally valid interpretation of the Convention on the Rights of the Child, this paper aims to present the main lines of the Committee's doctrine on this subject, without losing sight of an introduction to the particularities of the problem of age assessment in Spain.

The Legal Assistance of Foreign Minors

The Barcelona Bar Association is one of the few in Spain with a specific shift for assistance to unaccompanied foreign minors. In this presentation, and as a member of this bar association with many years of experience behind me, I will explain how the shift works, the need for its existence, and the work that lawyers carry out as companions of minors throughout their transition to adult life; not only to guarantee their right to defense and effective legal protection but also to ensure that they properly exercise their right to documents, to obtain nationality and residence, to health and education.

ECHR and Migrant Children Alone

The European Court of Human Rights has decided three times on the rights of foreign unaccompanied minors (H.A. and others v. Greece, KHAN v. France, May 2019, and Moustahi v. France, June 2020). In these cases, the Court has stated that the first obligation of States is to take the necessary measures to identify minors, particularly at the border, so that this identification is an essential precondition for any decision. In case of uncertainty, the presumption of the minority must be applied so that “in the hypothesis that the person is a minor, he/she is treated as such”. Incorrect identification, according to these rulings, can lead to a violation of art. 3 ECHR. This contribution will focus on the main lines of the Strasbourg case law concerning migrant children moving alone, emphasising the need to bear in mind the child's highly vulnerable situation. This element must take precedence over any other.