The Spanish government has announced that it will challenge before the Constitutional Court the protocol for migrant minors approved by the government of the Canary Islands, now that the Council of State has ruled that “there is sufficient legal bases“to do it.
“There are sufficient legal bases for appealing through the procedure of challenge “of provisions without force of law in the Constitutional Court the second, third and sixth sections of the agreement of the government council and the protocol”, indicates the opinion of the Council of State, which was read by the Minister of Territorial Policy, Ángel Víctor Torres, after the Council of Ministers.
The agreement states: “challenge provisions having the force of law taken by the Government of the Canary Islands: an agreement of the Government Council of September 2 and a protocol approved and then published concerning unaccompanied foreign minors”; and read certain parts of the urgent notice of the Council of State on the protocol concerning migrant minors approved by the government of the Canary Islands, requested by the government in the face of “a possible conflict of powers”.
Regarding the opinion, according to the minister’s reading, the Council of State indicates that “the problems which could exist in the identification and determination of the age of these immigrants as well as the insufficiency or saturation autonomous means available to care for them” are not circumstances which “allow to justify a possible refusal by the autonomous community to accommodate minors located on its territory or to delay the immediate attention which they might need”.
Furthermore, Torres stressed that, although the Council of State clarifies that the autonomous communities can approve their territorial protocols, it adds that “They cannot introduce unforeseen requirements in the national regulations relating to the reception of unaccompanied foreign minors. He stressed that “there is an obligation of protection and assistance” on the part of the public institutions of the State” and recalled that this obligation of the State “is subject to the rules of distribution of powers of the internal legal order”.
Specifically, Torres stressed that in Spain this obligation corresponds to “public entities autonomous protection of minors. “This highlights the aspect of a potential migration crisis,” the minister stressed.
Furthermore, regarding the constitutionality of the decision of the Canary Islands Government to suspend the reception of unaccompanied foreign minors who were recovered by the State authorities at sea or intercepted at the border, the Council of State states that “the reasons given by the Canary Islands Government for the adoption of this measure, being understandable and in line with the reality of things, they cannot in any way be used to justify it“and adds that” constitutes “a” violation of the right to special protection and assistance essential to guarantee their dignity, the free development of their personality and their physical integrity.”
Regarding the Canary Islands territorial protocol, which requires that the delivery of minors to the autonomous public protection services be preceded by an individualized administrative resolution, the Council of State indicates that “These requirements are not envisaged in national immigration regulations in any of the above cases.
Regarding the challenge to these administrative agreements, the Council of State adds that “the violation of the constitutional order resulting from such actions is not limited to purely jurisdictional aspects and It also contains a violation of constitutional rights which can be attributed to abandoned minors.”
Torres stressed that “the opinion of the Council of State is clear concerning the powers” and “on the unconstitutionality of the agreements concluded by the Government of the Canary Islands”. He nevertheless assured that the Spanish Government would continue to work on the modification of Article 35 which, in his opinion, “is logically the solution“for distribution, what seems fair to them.”
