The Superior Court of Justice of the Canary Islands has not acceded to the request of the regional government to lift the precautionary suspension of the protocol for minors, after being requested by the Superior Prosecutor's Office of the Canary Islands.
The protocol approved by the Government of the Canary Islands two weeks ago required the State to safeguard minors until they were identified, to obtain individualized documentation for the minor, and until the National Police interviewed them and then, to make a prior communication with the autonomous community to find out if there was availability of foster places and wait for their response.
The First Section of the Administrative Litigation Chamber of the TSJC has ruled this Monday refusing to lift the precautionary suspension of the protocol and has stated that "it is difficult to imagine another case" that "requires the adoption of an urgent and exceptional resolution", as occurs on this occasion.
The Chamber suspended as a precautionary measure the protocol for "reception" of migrant minors, alleging the situation of "vulnerability" of children and adolescents and taking into account "the maximum protection" their rights deserve.
Now, in response to the appeal of the Government of the Canary Islands, the Court has added that although the minor would be guarded by the State security forces, "the problem arises when that custody is prolonged and extended in time." Thus, it has indicated that "there is a well-founded and reasonable suspicion" that with these measures "the moment of delivery and reception may be slowed down" and that this "negatively affects their rights."
In this same sense, the Public Prosecutor has highlighted that if this protocol were carried out, the minors "would be deprived of immediate attention" and "in a situation of patent helplessness" in the case of having been rescued by the State at sea or intercepted by the Civil Guard or the National Police upon arrival on the Canary coasts.
The Court has thus insisted that the delay in their reception "would produce irreversible effects for the minors to whom the protocol has been applied", since they would be "deprived of the first and most fundamental of all guarantees", the immediate attention upon arrival in Spain.
Possible violation of human rights
The Court has not ruled on whether or not the resolution of the Canarian Government is legal. Simply, as a precautionary measure, it tries to prevent the rights of unaccompanied migrant minors who arrive by boat to the islands from being violated.
Meanwhile, it has stated that the reception capacity of the archipelago has been "notoriously overwhelmed" in the case of migrant minors and that the figures "are only increasing", with around 6,000 children and adolescents welcomed in the different resources of the archipelago. In this line, the Chamber does not detract from the credibility of the saturation alleged by the Executive of the Canary Islands and the way in which minors are handed over by the State.
However, it has indicated that "the efforts made" by the different institutions "are not enough" and points out that a meeting in a sectoral conference is not enough to tackle the situation. "It requires a much more intense and complete interaction," he pointed out.
Thus, on the argumentation presented by the Canarian Executive, although the Government of the Canary Islands alleged that the protocol is a copy of the Framework Protocol approved by the State in 2014, the Court has indicated that "although it reiterates" this protocol from ten years ago, it does not expose "what it adds".
Among the changes that the Canarian Executive makes to the 2014 protocol are the main and most controversial points of the new protocol: the requirement to make a prior communication to know the availability of places of reception, the indication of the place of delivery and reception of unaccompanied minors, once it is confirmed that the place is available.
The Chamber has thus stated that if it were really a copy of the 2014 protocol, then "the adoption" of the new protocol "would be unnecessary", because they would already be protected by the previous one. In addition, it urges the Government of Fernando Clavijo to demand that the State apply the text of 2014 and to denounce "the repeated non-compliance with it".
