2023-06-30 22:13:51
Unaccompanied minors who arrive in Spain encounter many problems and one of them is to prove, precisely, that they are under 18 years of age. The first procedure depends on the Prosecutor’s Office and dozens of minors have had to take their case to the Supreme Court for it to recognize that their passports and documents are valid to demonstrate that they were minors when they arrived and that they deserved to be under the guardianship of public administrations . Now it has been the Constitutional Court that has sanctioned these conducts, agreeing with a young man from The Gambia who was not recognized as a minor and who, furthermore, was prevented from appealing because by the time the matter reached the hands of the judges he already had more than 18 years.
When your life changes with an X-ray: the criticized tests to determine the age of migrant minors
Further
This is the case of Modou. This young man, who is currently 21 years old, arrived in Spain from The Gambia after being rescued by Maritime Rescue from a boat that sank in April 2018. The Police stated that he claimed to have been born in the year 2000 but later presented a passport sent from The Gambia by his family in which his birth was dated November 2001, overcoming the line between being recognized as a minor or an adult for a few months. The Prosecutor’s Office did not give credibility to this documentation and decreed his majority based on radiological evidence.
The difference between being on one side or the other of the 18-year-old border is essential. A minor without a family can be placed under the guardianship of the autonomous community in which they are located, with all the assistance that this entails: access to reception centers, administrative support to obtain documentation or residence permits, access to training and In short, do not stay on the street.
The Prosecutor’s Office and the Community of Madrid decreed that Modou was of legal age and the young man appealed to the courts. The response was not to review his case, but to close it before it began: by the time the court wanted to make a decision, there was no possibility that the young man would be recognized as a minor, even if his Gambian passport was accepted, and the case had lost its object. The legal term used to say that a topic is closed because there is nothing to do anymore even if the complainant is right.
The young man took his case to the Constitutional Court, which has granted protection a few months after his 22nd birthday, when the scope of the ruling does not go beyond declarative and symbolic and no one can protect him as a minor. She has given him the reason for the successive refusals of the Madrid courts to study her case, claiming that there is no longer any possibility that she is a minor and the case does not make sense.
“He was not only seeking the revocation of the administrative resolution that denied him guardianship as a minor, but also sought recognition of the authenticity of his personal documentation,” says the Constitutional Court.
The actions of the courts, systematically denying the young person the possibility of appealing, affected several of his constitutional rights and did not implement “the primacy of the minor’s best interests and the preservation of his identity, which was the underlying interest of the contesting the age declared in the prosecutor’s decree”.
The result is that a sentence signed by five magistrates of the Constitutional Court, unanimously by conservatives and progressives, acknowledges that he is right and that the judges must review his case. About to turn 22, Modou’s victory is only moral, without any practical effect.
Constant condemnations of the Supreme
The resolutions of the Supreme Court agreeing with minors in the face of this type of decision by the Prosecutor’s Office have been constant in recent years. In 2021, for example, the Civil Chamber agreed with three minors from Morocco, the Ivory Coast and Guinea. Their “appearance” or the radiological tests were enough for the Public Ministry to declare them of legal age.
Years later, when some had even been expelled from a juvenile center in Madrid, the Supreme Court agreed with them, with the Prosecutor’s Office changing its criteria and supporting their appeals already in the appeal phase.
One of the latest cases that show the obstacle course that these minors face arrived last november of the Civil Chamber of the Supreme Court. The case of a young Guinean who had to go to the highest instance of the Spanish judiciary to have his official documentation from the Embassy of his country considered valid.
A consular card with a stamped photograph, with a certificate of consular registration and another from the Embassy ratifying his date of birth were not enough for the Prosecutor’s Office and the Community of Madrid to consider him a minor and grant him the guardianship he requested. A court came to give it to him in a precautionary manner and the Madrid Court persevered in her error and left him without protection.
The Supreme Court sentenced his case, recalling that they have been resolving in the same direction for several years: “Not considering the documents provided as reliable, which are not proven to be false, irregular or manipulated, and which have not been duly challenged, entails a violation of the right to equality and non-discrimination before the law based on the national origin of the minor”.
Not all cases reach the Supreme Court because not all minors come across associations and organizations willing to accompany them and give them legal support to take their claims to the First Chamber or the Constitutional Court.
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