The objective of this first training session of 2021 from the legal team was on learning about the legal development framework and the legal issues faced by minors under state protection in the Autonomous City of Melilla.
As established in Article 12 of the Convention on the Rights of the Child, every child must be granted the right to be heard in any judicial or administrative procedure that affects him/her, and also to be able to designate persons other than their guardians to represent them.
However, in Melilla it is the very entity that holds their guardianship (the “Consejería de Distritos, Juventud, Participación Ciudadana, Familia y Menor”, the department for Districts, Youth, Citizen Participation, Family and Minors), which systematically prevents minors from having access to this representation, thus violating their right to be heard.
In Melilla, there are two main legal scenarios when a minor arrives: when they arrive without a passport, or when they arrive with a passport.
When they have a passport, it can be used as a base to process their residence permit. That is, a minor with a valid passport has the right to have the Consejería apply on his/her behalf, from the moment that s/he arrives at the reception centre for unaccompanied minors - and so is consequently under protection of the administration -, for a resolution of residence that will be renewed every year. On this basis, and after a process of fingerprinting and photograph registration, they would have access to their TIE or residence card. However, it should be noted that one of the barriers that we encounter when these children try to travel is that, according to the police, this residence resolution is not valid without the TIE, when the legal reality is that a resolution (legally understood as favourable) is fully valid from the moment it is issued.
This whole documentation process is the responsibility of the Oficina de Extranjería (Foreigners Office), and of the Consejería (ex officio), which are the administrations that can request the renewal of the residence permit two months prior to the date on which it expires. However, this is something that not only is never carried out, but in many cases they are also allowing minors to leave the reception centres with all their documentation expired.
In the case of minors who arrive without a passport, before, when the border was open (before COVID-19) many of them managed to get their families to send them one. But now these passports do not arrive.
Therefore, minors who are not in possession of their passport find themselves in the situation of the need to be grante the cédula, which is a document that replaces the passport, and which must be requested together with the residence permit from the first moment these minors are under protection, something that is not normally arranged for.
This certificate is always granted when it is impossible to be documented, something that typically happens in the territory of Melilla due to the diplomatic conflict that exists with Morocco and that prevents there being consular services in the city. This certificate is granted not only to minors, but to any person who does not have a passport (art 211 of Royal Decree 557/2011).
Thus, the main problem that we face is that, in practice, the processing of documents for minors is proving to be totally inefficient, while the protection that should be guaranteed by the state is practically non-existent, leading to situations that result in a great vulnerability and institutional violence towards minors.
The Administrations Not only do not comply with their duties, but they also delay the deadlines, hindering this procedure even more and managing to wear the minors down, making them go from one place to another and often preventing them from accessing procedures to which they are entitled.
In other words, this is a further evidence of the violation of their right to be heard and to be informed and their right to appoint a (legal) representative to help them throughout this process. These rights are bound together, as a minor who lacks information cannot possibly assert his/ her rights. This is why they often find themselves in the situation of turning 18 and that same day, finding themselves on the street with their documentation expired.
When we say "on the street" we mean it literally, since in Melilla there is no resource to protect these minors when they are no longer under state protection . So they are foreced to this situation of vulnerability with no other option but to be out in the open, and become invisible to the reality of the system.
Rights are also violated within the process of determining the age of the minors upon their arrival in Melilla. Many times the age established in their original identification documents is not accepted as true, which results in casting doubt upon everything the minor says, in order to delegitimize their age.
Another of the rights we talked about in the training – and which we must be aware of in the case it is neglected in the treatment of minors in Melilla -, is the right to the best interests of the child, established in Article 3 of the Convention on the Rights of the Child.
As can be seen from all the above, it is a right that is constantly avoided and the violation of this right makes clear the position in which the migrant minor is placed: s/he is a foreigner rather than a minor. This leads to the criminalisation of the concept of MENA (which stands for non-unaccompanied foreign minors), a truly disturbing situation for these minors who never find themselves protected under their rights as children, but who are indeed affected and harmed by a law on foreigners that is steeped in institutional racism and administrative violence, and affects them due to their subsidiary status as foreigners.