The Tenerife Chamber of the High Court of Justice of the Canary Islands has rejected the appeal filed by the Regional Executive to lift the preventive suspension of its protocol for the orientation of foreign minors rescued at sea, which imposes a series of bureaucratic requirements before their entrance. to assistance services and which was contested by the prosecution on the grounds that it left them without protection, the regional administration being competent to provide them with protection.
In a resolution notified this Monday, the magistrates recall that “it is not possible to investigate the merits of the case now” and therefore, nor “to question the adjustment to the legality” of this protocol . “Even less should we question the factual situation which justifies the initiative of the measure adopted and which gave rise to this dispute, the purpose of it and its reasonableness, as asserted in its allegations the representation of the government of the Canary Islands”, underlines the Court.
In this sense, they refer to “the singular impact of the phenomenon of irregular immigration on the islands” and to the fact that “the data point without exception to the fact that the reception capacity of the archipelago has been significantly exceeded in the case of migrant minors. do not seem to have been called into question).
“This is why the government of the Canary Islands does not lack reason when it cites the degree of saturation of the resources at its disposal and certainly also when it opposes the way in which foreign minors are handed over, taking into account the documents you have. But, as we say, it is not at this level that it is appropriate to develop the controversy which now concerns us in the field of precautionary protection”, they add.
Concerning the validity of the measure, the magistrates conclude that “without a shadow of a doubt, the interest of the minor, certainly, is in this case the superior interest and to which must therefore be given preponderance”, but in this case there is “a very particular situation and that is that both parties claim to act in their defense”, that is to say that neither the public prosecutor nor the government of the Canary Islands “do not seek to assert interests different, even less competing or conflicting interests, but in the end they invoke in their favor the protection of the same interest, the superior interest of the minor.
In fact, what the Regional Executive claims is that “there is no risk or danger for the minor, nor risk of cancellation of the sentence, because nothing has been innovated and in reality the Contested territorial protocol is limited to reproducing the Framework Protocol approved by the State in 2014”, which already establishes documentation procedures for rescued people, although in practice they are not applied.
“The reception of minors may be slowed down”
However, after analyzing it in detail, the Chamber appreciates that “it could perhaps give this impression in certain cases; but the same does not apply to other determinations which he omits to examine”, such as the provision of prior communication on the availability of places. He asserts in this regard that if it were at this point identical to the 2014 protocol, “its adoption would be unnecessary” and leaving it suspended or in force would not lead to consequences worthy of an appeal.
On the other hand, “there is a well-founded and reasonable suspicion that the measures in place may slow down the delivery and reception of minors to the authorities responsible for their care and that this slowdown will have a negative impact on their rights”.
“Even if we had the assurance that this does not necessarily have to be the case, what is undeniable in any case is that there is and is evident the risk of a lack of protection for unaccompanied minors and that the delay in their delivery to the authorities responsible for their care may have a negative impact on your rights; Therefore, in this situation, it is necessary to adopt, by virtue of a principle of elementary prudence, the maximum of precautions and to maintain the pre-existing situation before the adoption of the contested resolution”, they conclude.
They thus understand that since it has in no way been proven that “there is no risk that there will be a slowdown in the immediate attention required by the minors concerned” or that this delay “is not harmful” , the solution is to maintain precaution so that the system prior to the protocol persists until these extremes are correctly analyzed.
