April 2, 2007
Sr. Presidente de Gobierno del Estado Español
D. José Luis Rodríguez Zapatero
Palacio de la Moncloa, 28071 Madrid
Following our letter to you dating January 9 regarding the readmission agreement between Spain and Morocco for unaccompanied children, we contact you once again to express our concern about the recent conclusion of the agreement.
We welcome that the 2003 memorandum has been replaced and that the new bilateral agreement corrects some of the worst provisions in the memorandum, which we highlighted in our January letter. The agreement also references national and international law and explicitly recognizes that rights as protected by the International Convention on the Rights of the Child (CRC), to which both Spain and Morocco are parties, must be upheld.
However, it remains silent on key safeguards during repatriation proceedings such as explicit guarantees for children’s entitlement to legal representation and their right to be heard (Article 12, CRC). Given Spain’s history of repatriations of unaccompanied children to dangerous situations in Morocco, this absence of explicit guarantees raises serious concerns about whether the agreement will be effective in protecting these children from harm.
The agreement furthermore lacks guidance on how the best interest of a child is to be determined by taking into account a variety of factors, such as safety, security, socio-economic conditions, and care arrangements in the country of origin as well as the continuity in a child’s upbringing and level of integration in the host country. As a consequence, there is no guarantee that the return of a child under this agreement represents a safe and durable solution that is in the child’s best interest.
Without spelling out such key provisions it is doubtful whether the manner in which child repatriations from Spain are carried out - they have been termed as ‘random’ and ‘automatic decision-making’ by Spanish Ombudsmen - will significantly change. Such practice resulted in children in state custody being forcibly transferred from their residential centers at night without prior notification of their repatriation and in one case left a child without access to vital medical treatment after his deportation.
We are furthermore concerned that the agreement requires the Spanish government to transmit details of an unaccompanied child’s identity and family background within one month to Moroccan authorities. This provision may put children fleeing persecution, including child-specific forms of persecution, and their families at risk, especially if unaccompanied children don’t have access to asylum procedures. This is particularly the case in the Canary Islands, one of the main entry points for children from Morocco, where recent research by Human Rights Watch indicates that unaccompanied children have no information on or access to asylum.
Mr. President, we now call on you to ensure that independent experts and organizations, including a UNHCR representative, are appointed as members of the monitoring committee that will be established under this agreement. The monitoring committee should report publicly on its findings and recommendations and, equipped with necessary means and resources, it should address whether the implementation of the agreement respects international human rights law and standards.
We finally urge you to ensure that the implementation of the readmission agreement will be, as required, in full accordance with international and national law and standards, particularly those set out in the CRC, and to ensure that each repatriation is a safe and durable solution that is made in the best interest of the child.
Children’s Rights Division
Children’s Rights Division
- Sr. Ministro D. Jesús Caldera Sánchez-Capitán, Ministerio de Trabajo y Asuntos Sociales
- Sra. Dña. María Consuelo Rumí , Secretaria de Estado de Inmigración y Emigración
- Sr. Ministro de Interior Sr. D. Alfredo Pérez Rubalcaba
- Sr. D. Arturo Avello Diez del Corral, Director General de Relaciones Internacionales y Extranjera
- Sr. Presidente de la Comisión de Asuntos Exteriores, D. Josep Antoni Durán i LLeida
- Sra. Presidenta de la Comisión de Interior, Dña. Carmen Hermosín Bono
- Sra. Presidenta de la Comisión de Asuntos Sociales, Dña. Carmen Marón Beltrán
- Sr. D. Enrique Múgica Herzog, Defensor del Pueblo
- Mme Yasmina Baddou, Sécretaire d’Etat chargée de la Famille, de l’Enfance et des Personnes Handicapées, Maroc
- Mr. António Guterres, UN High Commissioner for Refugees
- Mr. Jorge A. Bustamante, UN Special Rapporteur on the human rights of migrants
- Mr. Thomas Hammarberg, Commissioner for Human Rights, Council of Europe
- Ms. Joyce Aluoch, Vice-Chairperson, UN Committee on the Rights of the Child