, ,

image_printPrint this article

by Vera Wriedt, European Center for Constitutional and Human Rights (ECCHR) 

The decision of the UN Committee on the Rights of the Child in the case of D.D. v. Spain sets a precedent that strongly condemns the policy and practice of push-backs, called “rechazos” by the Spanish authorities. As the first case on summary expulsions in front of the Committee, D.D. v. Spain plays a crucial role for future jurisprudence on individual communications. The Committee’s decision clearly affirms the rights of unaccompanied minors at Europe’s borders and beyond.

Push-backs are a longstanding policy and practice at the Spanish-Moroccan border with fences around the enclaves of Ceuta and Melilla, the only land border between the European and the African continent. Spanish authorities immediately apprehend those who manage to cross the fences and return them to Moroccan forces, including the return of unaccompanied minors without access to any procedure to safeguard their fundamental rights. In March 2015, the Spanish Parliament created a legal basis for indiscriminate automatic deportations from Ceuta and Melilla. The Organic Law 4/2015 on the “Protection of Public Safety” introduced a special legal regime for Spain’s terrestrial borders with Morocco, stipulating that “foreigners detected on the territorial border line of Ceuta and Melilla while trying to cross irregularly the border may be rejected in order to prevent their illegal entry into Spain”. These amendments do not contain procedures to protect unaccompanied minors from immediate expulsions to Morocco.

The Spanish-Moroccan border regime has served as a laboratory for push-backs, with other Member States such as Hungary, Croatia, Greece, Bulgaria and Poland replicating this practice of indiscriminate automatic returns. More recently, border controls and push-backs have also surged at Europe’s internal borders, such as between France and Italy. Some States root these practices in national law, some issue semi-formalised paperwork in fast-track procedures and some take informal measures without any record. The underlying common denominator is the denial of access to any effective possibility to explain personal circumstances and to present arguments against the measures taken. At Europe’s multiple borders, unaccompanied minors encounter institutionalized violence instead of protection.

Case D.D. v Spain in front of the UN Committee on the Rights of the Child

D.D. was deported from Melilla to Morocco as an unaccompanied minor in December 2014. He had climbed the Spanish border fence structure and remained on top for hours without receiving any kind of assistance from the Spanish authorities. When he eventually climbed down and stepped on Spanish ground, he was immediately apprehended by the Spanish Guardia Civil, handcuffed and returned to Morocco through doors in the fence structure. He was returned without any possibility to explain his personal circumstances and protection needs, without being asked a single question about his age or name, and without being able to come into contact with any lawyer, translator or social worker. Instead, he was returned to the very place where he had previously suffered repeated ill-treatment at the hands of Moroccan forces.                        

The complaint brought by D.D. constitutes the first individual submission against push-backs to the UN Committee on the Rights of the Child under the Optional Protocol on a communication procedure. D.D. submitted that his summary return to Morocco without any type of identification procedure or evaluation of his situation was in violation of three core principles of the Convention on the Rights of the Child (CRC): a) Contrary to Article 20, the Spanish State failed to provide special protection and assistance to him as an unaccompanied minor; b) contrary to Article 37, he was exposed to the risk of violence and inhuman or degrading treatment in Morocco; c) contrary to Article 3, the Spanish State failed to take into consideration the best interest of the child.

D.D.’s complaint to the UN Committee on the Rights of the Child was supported by the Berlin-based European Center for Constitutional and Human Rights (ECCHR) and Fundación Raíces in Madrid. The International Commission of Jurists (ICJ), ECRE, AIRE Centre and the Dutch Council for Refugees submitted a joint Third Party Intervention in May 2018.

The Procedural and Substantive Rights of Unaccompanied Minors

The decision by the UN Committee on the Rights of the Child issued in February 2019 agreed with the complainant’s claims on all three grounds. Thereby, this precedent case confirms core principles and specifies the procedural and substantive rights of unaccompanied minors at Europe’s borders.

  1. States exercise jurisdiction during border control operations and are therefore bound to respect the safeguards enshrined in the Convention. The Committee confirmed that D.D. was under the effective control of the Spanish authorities when he was apprehended, handcuffed and returned (§13.4). Therefore, he was under Spanish jurisdiction, irrespective of whether he is considered to have entered Spanish territory or not (ibidem). Spain had argued that the complainant never entered Spanish territory de jure, and therefore did not come under Spanish responsibility (§4.1, §12.4). Thus, according to the Spanish State, the actions of the Guardia Civil constitute a lawful rejection at the border (“rechazo en frontera”), not an unlawful return (§4.1). The Committee’s rejection of these arguments serves as a reminder that States exercise jurisdiction at the border, no matter whether the action is called “rejection”, “return”, expulsion”, “deportation” or otherwise. The Convention on the Rights of the Child applies to all children irrespective of their legal status and cannot be curtailed at the border. This is clearly stipulated in General Comment No 6 on the treatment of unaccompanied and separated children outside their country of origin (Article 12): “State obligations cannot be arbitrarily and unilaterally curtailed either by excluding zones or areas from a State’s territory or by defining particular zones or areas as not, or only partly, under the jurisdiction of the State. Moreover, State obligations under the Convention apply within the borders of a State, including with respect to those children who come under the State’s jurisdiction while attempting to enter the country’s territory.”
  2. The Committee’s decision provides crucial clarifications on questions of admissibility. As to admissibility rationae personae, the Spanish State first claimed that D.D. was not a minor (§4.3) and that there was no definite evidence proving that he was in fact the person being summarily returned (§6.1), thus prima facie questioning his credibility. As to admissibility rationae materiae, Spain tried to reframe the claimant’s case around the right to asylum, which is not covered by the CRC (§4.4). Spain also argued that the claimant failed to exhaust domestic remedies, because he did not apply for a visa or asylum before trying to cross the fences (§4.5). The Committee rejected all these arguments. In assessing the evidence, the Committee not only asserted that D.D. had provided a consistent account of events, but crucially also highlighted the imbalance between an undocumented minor summarily returned and the State authorities, concluding that the burden of proof could not fall entirely on the applicant (§13.3). Further, the decision confirmed that the case was about rights under the Convention, not asylum (§13.5). On the requirement to exhaust domestic remedies before filing an individual communication, the Committee aligned its jurisprudence to that of other UN treaty bodies and the European Court of Human Rights, confirming that in cases of imminent returns with no procedure, there were no domestic remedies available that could be exhausted (§13.6). The Committee also underlined that visa or asylum applications in transit countries or the Spanish border posts concern alleged possibilities before the return and therefore do not constitute an effective remedy against the latter (ibidem). Moreover, the office for international protection at the Beni Enzar border post is factually inaccessible for individuals from Sub-Saharan Africa.  
  3. Regarding the merits, the Committee found that the lack of any procedure to identify D.D. as an unaccompanied minor and the lack of any possibility to present arguments against his imminent return constituted treatment prohibited by Articles 3 and 20 of the CRC  (§14.7). The Committee underlined that respect for the best interest of the child and the special protection of unaccompanied minors includes positive obligations and “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”, as stipulated in General Comment No 6 (Art 13). States are obliged to conduct an initial evaluation procedure prior to any return (§14.3). This is the first and most crucial step. Denying access to a procedure also implies the denial of any further rights, such as protection as an unaccompanied minor.
  4. The Committee asserted that the lack of any risk assessment prior to the minor’s return violated his rights under Articles 3 and 37 CRC  (§14.6). In light of Article 37 and the principle of non-refoulement, States are obliged to evaluate the risk of irreparable damage and grave human rights violations in the country of return (§14.4). In light of Article 3 and the best interest of the child, such an evaluation includes the grave consequences of insufficient alimentary and sanitary services for minors (ibidem). The Committee reached its conclusion taking into consideration D.D.’s past experiences of ill-treatment by Moroccan forces as well as the general violence in Morocco’s border zones (§14.6) – a violence that EU institutions and States seek to outsource and make invisible. Notably, the Committee confirmed the position expressed in its new General Comment No 23 on the human rights of children in the context of international migration, asserting that best interest assessments require “access to the territory, regardless of the documentation they have or lack” (Article 17, quoted at §14.4), as such access constitutes a prerequisite to the initial assessment process.
  5. Last but not least, the Committee emphasized that the way the return operation itself was conducted violated Article 37 CRC: Although D.D. was an unaccompanied minor deprived of his family environment in the context of international migration, he was nevertheless handcuffed and returned without being heard, without legal assistance, without translation services and without taking into consideration his needs (§14.8).

Based on these findings of triple violation, the Committee demanded adequate reparation to D.D. for the harm he suffered. Moreover, the Committee ordered the Spanish State to amend Law 4/2015 and its ‘special regime for Ceuta and Melilla’ in order to avoid a repetition of the same violations and end the unlawful practice of indiscriminate automatic expulsions at the border (§15).

Consequences for Rights at EU Borders

The Spanish policy of summary returns denies those affected access to any procedure that would enable them to present arguments against their imminent return. By arguing that those apprehended at the fences do not come under Spanish jurisdiction, the authorities attempt to create a zone of de facto rightlessness at the border, where safeguards under national, European and international human rights law are suspended. The Committee’s decision constitutes a clear rejection of this rationale, because it clarifies that and how the rights of unaccompanied minors are to be respected at European borders and beyond.

The Committee’s decision further defines the rights of unaccompanied minors at Schengen borders both procedurally and substantively. In the proceedings, the Spanish State referred to Article 13 of the Schengen Borders Code to argue that the Guardia Civil’s actions constitute an exercise of their “right to refuse illegal entry” (§12.1) rather than an unlawful return. Other States at Europe’s borders likewise refer to Article 13 to justify push-backs. However, the Code does not allow summary returns and limits border control to actions in compliance with the State’s obligations under international law. As stated in Article 14 itself, States must issue a substantiated decision with the specific reasons for the refusal of entry. Moreover, as stipulated in Article 4 on Fundamental Rights, Member States shall act in full compliance with relevant international law and consider individual vulnerabilities. This includes the Convention on the Rights of the Child.

The Committee’s decision has further implications for the territorial application of the EU Charter on Fundamental Rights and the EU Return Directive. As highlighted in the Third Party Intervention to this case, the provisions of the Charter are applicable to rejections at the border. The Charter contains an explicit reference to the principle of the best interest of the child (Article 24). Moreover, it prohibits collective expulsions and torture or inhuman or degrading treatment (Article 19), stipulates the right to be heard (Article 41) and requires an effective remedy (Article 47). With regards to the Return Directive, although Member States may decide not to apply the Directive to third-country nationals subjected to a refusal of entry order (article 2, §2, a), this shall be without prejudice to the obligation to respect fundamental guarantees and to consider the needs of vulnerable persons (Article 4). The Return Directive explicitly includes unaccompanied minors in the list of vulnerable persons (Article 3) and refers repeatedly to the principle of the best interest of the child (Preamble 22, Articles 5, 10 and 17).

Although the Committee’s decision concerns unaccompanied minors, the general principles emphasised in it are relevant beyond this case. Access to a procedure to be able to explain their individual circumstances is crucial for unaccompanied minors in need of protection, but also for others who wish to express fear of ill-treatment upon return, submit an asylum application or indicate particular vulnerabilities. Immediate summary returns at the Spanish-Moroccan border deny access to any kind of possibility to present arguments against it. Several cases against such treatment are pending at the European Court of Human Rights, namely the complaints of N.D. and N.T. v. Spain, as well as Doumbe Nnabuchi v. Spain and Balde and Abel v. Spain. The arguments presented by the Spanish State in front of the Court are reminiscent of those presented to the Committee, in particular concerning jurisdiction, evidentiary questions and the reframing of cases as being about asylum applications rather than access to a procedure before a return.

Conclusion and Outlook

The significance of the decision on D.D. v Spain goes not only beyond the individual case, but also beyond the Spanish-Moroccan border. It constitutes a clear condemnation of States’ practice to create zones of exception at the border where basic rights are suspended. Yet, the response of European States including but not limited to Spain has been to adjust push-back practices to avoid legal consequences, not only by outsourcing border control, but also by preventing the collection of evidence on push-backs or by ordering individuals to sign untranslated documents waiving their rights. Courts or quasi-judicial bodies should also scrutinise such practices in order to counteract the de facto denial of access to rights at the borders of Europe.

Acknowledgments: This blog post reflects a collective work process and discussions in the ECCHR Migration Programme. Furthermore, I would like to thank Hanaa Hakiki and Carsten Gericke for their comments.