LA DETERMINACIÓN DE LA EDAD. OBLIGACIONES, PRAXIS Y ESTRATEGIAS DE LITIGIO PARA LA EFECTIVA PROTECCIÓN DE LOS DERECHOS CONVENCIONALES DE LOS MENORES EXTRANJEROS NO ACOMPAÑADOS

Abstract

The growing number of Unaccompanied Foreign Minors (UFM) arriving in Spain since the late eighties, puts our authorities in a difficult position between their obligations for protection towards minors and the necessary, although not always well managed, border control. In a first reading, the Spanish legislation on migration and children could indeed be described as protective. However, practice shows its application is not always fo llowing the Convention on the Rights of the Child. Nor its development by the Committee responsible for monitoring its compliance. Criticisms, focus on the age determination procedure, are well known. The reports and recommendations of national and international institutions and organizations have multiplied since the UFM group was classified as a new migratory phenomenon. In any case, it was during 2019 when the Committee on the Rights of the Child finished outlining our conventional failures to identify minors. The problem, once again, is to outline the strategies of compliance with a kind of decisions traditionally deprived of any binding force. The objective of this paper is twofold. On the one hand, it aims to demonstrate that, despite the protective appearance of our legal system, its application is still far from meeting international standards. To this end, it analyzes the instruments on the UFM status and legal treatment. Furthermore, it also studies some of the latest Committee on the Rights of the Child's resolutions regarding the procedure for determining age. On the other hand, to contribute to avoid future breaches of our international commitments, both the 'res interpretata' doctrine and the conventionality control implementation are pointed out as possible litigation strategies. All this without forgetting the necessary proposals for legal reforms. The hermeneutic mandate of article 10.2 of the Spanish Constitution guided a recent ruling of the Supreme Court on a case directly linked to the insufficient consideration of identity documentation presented by migrant minors arriving alone in our country. For its part, the Constitutional Court endorsed the practice of the conventionality control by the judiciary. Without ignoring all the necessary nuances, the operability of both strategies seems to be beyond doubt.