Full Constitutional Court Suspends Controversial Protocol for Unaccompanied Migrant Minors in the Canary Islands
On Tuesday, the Full Constitutional Court of Spain reached a unanimous decision to suspend significant portions of the controversial care protocol set forth by the Government of the Canary Islands for children arriving by small boats and canoes. This protocol had previously been suspended by the High Court of Justice of the Canary Islands (TSJC).
Court sources indicate that the decision was made after the court admitted an appeal from the Executive branch, which raised concerns that the challenged agreement could infringe upon fundamental rights and regional competencies relating to immigration and the assistance of unaccompanied minors.
This appeal specifically targets the Canarian Government's Agreement from September 2 concerning unaccompanied foreign minors, as well as a resolution from the Directorate General for Child Protection and Families dated September 10. This resolution delineated a territorial protocol for receiving unaccompanied foreign migrant minors in the Canary Islands.
According to the new protocol, before any minor is handed over to local authorities, their identification must be recorded, followed by registration in the Register of Unaccompanied Foreign Minors (RMENA). An administrative resolution for the individualized assignment or placement must also be processed by the corresponding state body, which includes hearing the minor in the presence of an interpreter fluent in their mother tongue or a language they can understand—this procedure is to occur with the knowledge of the prosecutor. Once a place is confirmed, the minor will be received by the autonomous community at designated police stations or other specified locations.
The Public Prosecutor, which brought the case to ordinary jurisdiction on September 18, criticized the protocol for failing to provide the immediate attention necessary for the apparent vulnerability of migrant minors arriving by sea to the archipelago. The prosecutor's office denounced the protocol for potentially violating the fundamental right to equality as recognized in Article 14 of the Spanish Constitution and the Convention on the Rights of the Child, as well as the fundamental right to moral integrity outlined in Article 15.
In response to the escalating situation, Minister Ángel Víctor Torres announced on September 24 that the Canarian Government had decided to escalate the protocol to the Constitutional Court after the Council of State identified sufficient legal grounds for an appeal. Torres noted a conflict of competencies, stating that while autonomous communities have the authority to approve their own regional protocols, they cannot impose requirements that exceed those established by state regulations for the reception of unaccompanied foreign minors.
The Council of State underscored that the challenges inherent in identifying and determining the ages of these minors, along with the insufficient or strained regional resources available to assist them, do not justify the autonomous community's refusal to accept minors located in its jurisdiction or delay the immediate care they may require.
This court decision and its implications reveal the ongoing tension between regional authorities and the national government concerning the treatment of vulnerable migrant populations, as well as the legal complexities surrounding children's rights and protections in Spain.
Related Sources: