The Supreme Court (TS) has established a doctrine by agreeing that unaccompanied foreign minors cannot be expelled from the national territory while they manage their residence permit in Spain, considering that this would imply a violation of the right to effective judicial protection.
The magistrates have met to determine “if it is compatible with the right to effective judicial protection as well as with respect for the principle of the best interest of the minor to agree to the loss” of an appeal when the Administration has revoked an expulsion –by verifying the plaintiff’s minority– but has not responded to the minor’s request to regularize his situation.
In the sentence, to which Europa Press has had access, the magistrates have addressed the case of a young man who reached the Supreme Court after the Government Sub-delegation in Granada agreed to his expulsion and prohibited him from entering for three years as a result of “his irregular stay” in Spain.
Dissatisfied with the agreement, the minor first went to court considering that the Administration had not agreed to carry out a test when it received the decree from the Juvenile Prosecutor’s Office for which he was considered of legal age. While the case was being processed in court, the young man provided a new decree in which the Juvenile Prosecutor’s Office corrected himself and considered him a minor.
Thus, he requested not only the annulment of the expulsion agreement issued by the Government Sub-delegation, but also that his minority be recognized, that he be provided with documentation as a foreign minor, that he be granted a residence permit and to be allowed to stay in a juvenile facility.
Once the case was analyzed, the Court considered that -since the Public Prosecutor’s Office had rectified its report- the minor’s claims had been “clearly satisfied”, for which reason it was appropriate to archive the procedure for “extra-procedural satisfaction”.
The young man expressed his opposition to this decision because, in his opinion, only part of his petition had been resolved – and his claim to regularize his situation had not been taken into account. Given this scenario, he decided to go before the Superior Court of Justice (TSJ) of Andalusia, which also denied his request.
Finally, the young man took his case before the Supreme Court and insisted that the Administration had issued a decree of minority without having regularized him, so – in his opinion – “it was difficult to speak of complete satisfaction.” The State Attorney’s Office expressed her opposition, considering that “there is nothing to suggest that the Administration has not respected the rules on the protection of minors.”
After studying the case, the Fifth Section of the Contentious-Administrative Chamber of the TS has determined that it was not possible to agree on the sudden loss of object of the appeal because, by doing as it was done, the fundamental right to effective judicial protection was violated of the minor
In the resolution, for which magistrate Carlos Lesmes was the speaker, the court recalled that the Organic Law on the Rights and Freedoms of Foreigners includes “a bundle of rights that correspond to foreign minors, regardless of their situation regular or irregular in Spain”, which “must be provided with content by the Spanish public authorities”.
In this sense, the magistrates have stressed that “the absence of a residence authorization will not prevent the recognition and enjoyment of all the rights that correspond to him due to his condition as a minor.”
Thus, the Supreme Court has determined that in this case the right of the minor to “be documented, managing his residence permit and his stay in a center for minors” should have been recognized.
The resolution of the high court, however, comes once the plaintiff is of legal age, but the magistrates have specified that this “does not make their pronouncement useless”, since there are certain benefits or rights recognized during the minority that are projected into the future and since it has served to establish jurisprudential doctrine.
