1 Introduction

When dealing with the analytical context of migrant youth, academic experts tend to distinguish two sections: general childhood studies and the migration of minors. However, the former field – the one relating to childhood studies – involves the whole of society. Thus, less importance has been given to migration as a determining factor in the lives of children.¹ Migration studies only deal with childhood to a limited extent; often, the concept of ‘child’ gains relevancy only in family studies. Contemporary migration studies often deal with children and adolescents as an integral part of the ‘family or group’, regardless of their background, without defining it as a human group with its specific identity. In contrast, childhood researchers often study groups of children and young adults, with their ethnic and racial characteristics, but do not fully delve into the implications of migration on their lives.

However, children are alarmingly overrepresented in the number of refugees worldwide, making up nearly half (46% or 26.4 million) of the world's refugees in 2020.² According to UNHCR, UNICEF, and IOM, around 43% of migrant children arriving in Southern Europe in 2020 via the Mediterranean routes cited economic reasons as the primary motive for leaving their country of origin, followed by limited access to essential services and being subject to or threatened by violence and the presence of conflicts or wars. Among these, the group of minors who emigrate without the support of their family represents a unique phenomenon.

In primis, the child's best interests³ must be of primary importance in all circumstances, as must the awareness of the vulnerability of migrant children. Not only are Unaccompanied Migrant Minors (UMMs) considered vulnerable per se, due to age, maturity, and migratory status, but additional elements could exacerbate this vulnerability, such as their health, nationality, and administrative legality. UMMs may see integration in the country of destination compromised due to these elements.

Several multifaceted political and social challenges in the EU give rise to serious concerns in terms of respecting and fulfilling the rights of unaccompanied migrant children. Their integration has been at the centre of some current policies at the EU level, such as the ‘Strategy on the Rights of the Child (2021–2024)’⁴ and the ‘European Child Guarantee’,⁵ as well as the Council of Europe's ‘Strategy for the Rights of the Child (2022–2027)’,⁶ which stimulates specific policies linked, among others, to social inclusion, education, health and participation.

2 Methods

This article analyses the legal status of unaccompanied minor migrants (UMMs) and how the confluence of these two conditions, a minority of age and migration status, leads to a particularly vulnerable situation in which the child's best interests should never be overruled. As we will see, according to current legislation, although the minor's best interests should prevail, the state's interest often swings the pendulum towards the category of irregular immigrants.

This work, which belongs to broader research for a doctoral thesis, answers the following questions: ‘How effective are the laws in Spain in protecting the rights of unaccompanied migrant minors?’ and ‘How effective is the path that leads them to administrative regularization?’

This work aims to verify the extent to which existing legislation effectively facilitates the legal exit of unaccompanied migrant minors from the protection system.

The basic framework developed is based on indicators from a quantitative analysis of the data collected over the last five years. Statistical data from primary and secondary sources were collected, processed, and analysed. They were mainly taken from the Spanish State Attorney General's Office, the Ministries of the Interior, Health, Consumption and Social Welfare, Employment and Social Security, the National Police, and the Ombudsman. The expected answers, submitted with a form, were not obtained from the Immigration Unit and the Coordinating Unit for Minors of the State Attorney General's Office.

On a qualitative scale, the secondary documentary sources were reviewed. Participant observation was carried out in the common areas of child protection centres, creating a mapping and a list of relevant actors at national, regional, and local levels. The participant observation occurred in the Red Cross centres in Andalusia, specifically in Málaga. Around 36 interviews with unaccompanied minors were conducted in these Andalusian centres. A semi-structured questionnaire was prepared and administered to a representative sample chosen from minors under guardianship in reception centres and young migrants who previously resided as unaccompanied minors in residential structures.

Regulations, policies and practices related to UMMs in Spain have been recently reviewed according to the legal framework of the European Union. The time span of this work refers to the last five years (2018–2022), which provided the opportunity to refine the analytical framework and broaden the baseline to facilitate a more in-depth analysis of rights and acquire a broader picture of national responses. In addition, the European Court of Human Rights (ECtHR) jurisprudence relating to Spain was examined along with communications and decisions of the UN Committee on the Rights of the Child concerning unaccompanied migrant minors in Spain.

3 The path of regularization: residence permit and political rights

Minors cannot be considered a homogeneous group regarding motivations or situations, which is the origin of their social and legal problems viewing the transition to adulthood. The transition to adulthood is complex, so the Committee of Ministers of the Council of Europe suggests that States should provide additional support when minors are under protection. In order to empower their rights in the difficult situation of being migrants and to promote integration, the child's best interests are only realised with the social inclusion of unaccompanied migrant children, so they become active members of the host society. The fact of being unaccompanied makes them particularly vulnerable.⁷

Within the EU, there are different regulatory approaches. Countries such as Spain, Italy and Romania automatically grant residence permits to minors staying on their territory. They are considered minors like nationals but can access the asylum application procedure if they meet the requirements. Conversely, unaccompanied minors are not automatically granted a residence permit in France. If an unaccompanied minor applies for refugee status at the border, he or she obtains a temporary residence status until the asylum procedure occurs. As far as Hungary is concerned, unaccompanied minors are not allowed to live irregularly on Hungarian territory. They are returned to their country of origin or a safe third country if they do not apply for asylum and demonstrate that the non-refoulment principle does not apply to their case. For about 20 years, Greece has had a protective custody system as a temporary solution for protecting UMMs, reducing them to ‘homelessness'. Since 2020, a season of reforms has begun. Sweden, differently, provides for the regularisation of unaccompanied migrant minors by applying for asylum.⁸

Therefore, minors must have a residence permit to live in Spain regularly, whether in a reception centre or not. The processing of residence permits begins in the residential centres for minors; centres are responsible for obtaining the documentation of minors and sending the assessment report to the child protection agency and the legal guardian. The regions,⁹ for their part, apply to the Government Delegation,¹⁰ which must process the application, considering that the unaccompanied migrant minors under guardianship are guaranteed their regular residence in the country by law.

The Spanish system, as can be seen, guarantees protection to all minors under the jurisdiction of the state. Within the framework of this system, a fundamental task is to adopt all possible measures to ensure that minors reach adulthood with their rights protected and with sufficient opportunities for the development of their adult life in an autonomous, independent, and equal manner with nationals. The assumption of guardianship by the public entity¹¹ entails the possibility of obtaining the necessary documentation to legalize their stay in Spain. As soon as the ‘desamparo’ procedure¹² begins, getting a residence permit and, subsequently, a work permit is of fundamental importance for the future of the UMMs. Following the COVID19 pandemic new immigration measures were introduced, including the Royal Decree 903/2021 of 19 October, which improves UMMs' living conditions in Spain.¹³ The residence permit gives the right to work from the age of 16 for those activities that, on the proposal of the child protection agency, favour their social integration and will be valid for two years. Nevertheless, in practice, there are many strategies on the part of the competent authorities not to declare the child ‘without parental care’¹⁴ in order not to ensure guardianship and, therefore, not to grant a residence permit.

To understand it well, the example is Instruction 3/2003 of the State Attorney General's Office on the procedure for returning foreign minors who enter Spain illegally and do not enter the ‘desamparo' situation. Instruction 3/2003, “on the return of foreign minors who intend to enter Spain illegally and who are not children without parental care,¹⁵ is based on the automatic application of the ‘Institution of emancipation by independent life’ of Article 319 of the Civil Code¹⁶ to conclude that the foreign minor over 16 years of age, who enters Spanish territory, is ‘emancipated’.

The residence of all minors under the protection of the Child Protection Services is considered legal under the provisions of Article 35.7 of the 2000 Law on Foreigners.¹⁷ Still, more than leaving the protection system in lawfulness at 18 is required. At the age of 18, minors under guardianship must leave with a residence permit; if they do not have such a permit, the competent authorities have not requested the necessary documentation during UMMS minority.

The protocol for caring for unaccompanied foreign minors provides that three months from the child's entry into the protection centre is enough time for the person responsible for issuing a residence permit. Consequently the Immigration regulations provide this permit after a maximum period of three months.¹⁸

The regularization of the administrative situation of UMMs consists of three fundamental steps:

1. The date of entry into the protection centre,

2. A judicial declaration of being ‘a child without parental care’.

3. The processing and granting of a residence permit during his/her guardianship, which will significantly affect his/her life, especially when he/she reaches the age of majority.

When the UMMs turn 18, there are two procedures, depending on whether or not the minor holds a residence permit. In the first case, he/she can request its renewal during the 60 calendar days before the expiration date of its validity. When the new adult has a residence permit, the renewal procedure will be similar to the renewal of a non-profit temporary residence permit, with some peculiarities such as proving that he/she has financial means¹⁹ and a positive assessment from the Children's Service that the competent public bodies can present.²⁰ Within a month of the notification of the resolution with which the residence permit is renewed, its holder must request the corresponding Foreigner Identity Card. The initial permit will be valid for two years and the renewal for three years as long as the child remains a minor and is eligible for long-term residence.

Before the entry into force of Royal Decree 903/2021, the residence permit in none of the cases entailed authorization to work. At that time, if a UMM had a residence permit, he/she could renew it for a period of two years, if she/he proved:

1. a)The financial means for support in an amount representing 100% of the IPREM²¹ monthly figure. In Judgment n. 110/2019, the Supreme Court established the amount at 100% of the IPREM instead of the expected 400% established in Article 47.1.a of Royal Decree 557/11.²²
2. b)A positive assessment from the Children's Service which, where appropriate and for this purpose, must be submitted by the competent public entities by the provisions of Article 35.9 of the Organic Law on rights and freedoms of foreigners in Spain and their social integration.

The new decree sought to close the pre-existing loopholes that hindered the employment of this group of people. Before the reform, in the case of non-possession of residence, which was the most common situation, the regime established for its granting was further tightened, specifying that the protection body ‘…may recommend granting a temporary residence permit for exceptional circumstances’.

Currently, for those foreign minors who reach the age of majority without a resident permit, Article 198 now demands requirements that are more in line with the actual situation of this group, with the intention that there should be greater tolerance in obtaining a residence permit. According to the Immigration Regulations, a temporary residence permit is granted due to exceptional circumstances if these young people have adequately participated in the training actions and activities organised by the entity that has supervised them to promote their social integration. After the Royal Decree, the regulatory conditions for the renewal of this residence are specified as being in possession of sufficient financial means equal to 100% of the Minimum Living Income for a single person unless the foster care institution (public or private) or the programme of transition to adult life to which the young person is admitted provides for his or her support. The following changes are also significant:

1. a)The Minimum Living Income (Ingreso Minimo Vital) replaces the IPREM as the economic reference value for the residence permit.
2. b)Whether the individual has a contract or employment contract of later validity is also taken into consideration.
3. c)Whether the individual meets the requirements established to exercise their own business is also taken into consideration.
4. d)In any of these cases, positive reports from public or private entities must be considered, referring to the individual's integration efforts, the continuity of the training or studies being carried out, and their actual or potential incorporation into the labour market.²³

Finally, in the Royal Decree, the processing of all procedures through third parties is generally reinforced. In addition, the use of specific electronic offices is promoted, which become the priority means of submission, leaving the General Electronic Register for cases where these do not exist. These measures are intended to improve the agility of the operation of the Immigration Offices in all the procedures they process, which is understood to benefit immigration procedures in general, and, consequently, the area of minors in particular.

The new season of reforms that began with Decree 1/2020 of 6 March,²⁴ Decree 9/2000 of 29 September,²⁵ then Agrarian Decree 13/2020 of 7 April²⁶ and culminated in the aforementioned Royal Decree 903/2021, were all the result of the narrative of dissatisfaction with Unaccompanied Migrant Minors management in Spain.

The Spanish Ombudsman has been noting the following points in his annual reports for years:²⁷

1. The delay in the judicial declaration of ‘child without parental care’. Each Community had its peculiarities. Very often, they delay in declaring a ‘child without parental care’; therefore, there was a delay in the declaration of legal guardianship. ‘The Spanish Civil Code (arts. 172.1 and 239)²⁸ attributes to the competent public entity in matters of guardianship of minors the guardianship in a situation of distress. If the public body to which the protection of minors is entrusted in each region declares a minor to be abandoned, that public body automatically assumes - ope legis - without judicial intervention, the guardianship of the same’.²⁹

2. Minors stay in the centres only under provisional custody³⁰

3. When applying for a residence permit, delays are frequently experienced at the Protection Services and the corresponding Government Delegation in granting them.

4. When the permit was granted retroactively, it was wrongly calculated based on the start of the guardianship.³¹

5. The Public Protection Service, in their usual practice, usually waited until nine months (Art. 196.1) had elapsed to process the residence permit, according to the Ombudsman in its reports.³² The RD 903/2021 reduced the legal time of the procedure to three months.

6. In some cases, government delegations automatically interrupt the residence authorization when the subject turns eighteen. Consequently, they remain in the situation of undocumented adult migrants.³³ This procedure has no legal basis.

These rulings can severely prejudice minors, especially if they are close to the age of majority. Despite Article 198.1 establishing that a residence permit can be granted for exceptional circumstances, this provision has little practical application.³⁴ According to the 2016 Save the Children report,³⁵ many unaccompanied minors remain in Spanish territory until the age of 18 without having obtained a residence permit, disappearing in the shadow of illegality. The Ombudsman, in his 2011 annual report to the Cortes Generales, affirms that it is a ‘flagrant contradiction that exists between the significant economic investment and the lack of diligence in the administrative action.’³⁶

In the new RD/903, there is a modality that allows these young immigrants without a residence permit or renewal to access the new permits if they meet the new conditions. Usually, they are without a resident permit or renewal because they still need to meet the requirements of the previous wording of Article 197, or, having reached the age of 18, they were unable to apply for a residence permit based on Article 198 because they still needed to meet the requirements then in force. This ensures that young foreigners between 18 and 23 can apply for them on a ‘transitional basis’.

Therefore, the processing of the residence permit has two prerequisites: the declaration of ‘child without parental care’ and the guardianship by public body, both analysed below.

In 2019 (before the pandemic), there were only 395 residence permits, according to the government's response to Senator EH-Bildu's parliamentary question.³⁷ The number is anecdotal when one considers that 2019 all regions had almost 5,000 minors in the protection system.³⁸ Catalonia accounted for 176 residence permits, followed by Ceuta with 61, Andalusia with 60, the Basque Country with 17, Murcia and the Valencian Community with 14, Galicia with 11, the Community of Madrid with 10, Aragon and Castilla-La Mancha with 8, the Canary Islands with 6, the Balearic Islands with 4, Castilla y Leon with 3, Navarre with 2 and Cantabria with 1.

Thanks to the ‘Agrarian Decrees’ during the pandemic, in 2020, 400 young people between 18 and 21 years of age worked in agriculture. More than 100 UMMs and former UMMS were regularised in agriculture in Andalusia alone by 2021. By the end of June 2022, 9,300 (UMMs and former UMMs) had benefited from the reform of the new Royal Decree 903/2021 and the Immigration Reforms.³⁹

Another opportunity that organisations need to be aware of is the possibility of access to citizenship. This would mean not being in an irregular situation at the age of majority if one does not find a full-time job for a year.

The type of citizenship involved here is an acquisition by residence.⁴⁰

The general requirements for granting citizenship to a foreign national are:

1. a.ten years of residence.
2. b.five years if you are a refugee.
3. c.two years with certain countries of origin.

But the term is shortened to 1 year of legal residence if you have been, or still are, a minor in guardianship or foster care for two consecutive years. This includes Unaccompanied Migrant Minors.

The required documents are:

The applicant must pass the DELE (Spanish language A2) and CCSE (Constitutional and Sociocultural Knowledge of Spain) tests. He/she must have a valid passport, no criminal record, and a birth certificate from the country of origin. This last requirement is very complicated for Minors of sub-Saharan origin. In addition, the judicial authority must prove good civic conduct and a sufficient degree of integration.

In Table 1, among the regularisation modes, I also deal with the acquisition of Spanish nationality for UMMs (Table 2).

4 The notion of private life

Protecting unaccompanied migrant minors mainly aims to integrate them into the host society. The entire protection process has this purpose, and it may be achieved only when the protected minors, upon reaching eighteen years of age, can enjoy their rights fully. Starting from this consideration, the notion of ‘private life’ is enshrined in the European Convention on Human Rights (henceforward: Convention) under Article 8.

The Convention or its Protocols do not guarantee the right to citizenship as such.⁴¹ However, arbitrary deprivation of citizenship may, in certain circumstances, oppose Article 8 as it affects the privacy of the person concerned. The European Court of Human Rights (ECtHR) has recognised that, in certain circumstances, the right to citizenship falls within the notion of private life, as reflected in the Court's case law as Genovese v. Malta.⁴² The Court decided that in some situations, the arbitrary refusal of nationality may raise a question under Article 8 insofar as it affects private life, see the cases Karassev v. Finland⁴³ and Slivenko et others v. Latvia.⁴⁴ The protection of the private and family life of the foreign citizen, according to Article 8 ECHR is deemed a prerequisite for issuing a residence permit. In these circumstances, the Court considers the refusal to issue an identity card as a refusal to recognize their nationality. The Court has recognized in its jurisprudence that the ‘private life’ concept established in Article 8 is broad and encompasses multiple aspects of a ‘person's social identity including nationality or citizenship processes’ as in the Judgment Ramadan v. Malta.⁴⁵

Furthermore, in the context of migration, Article 8 may entail a positive obligation to ensure the applicant's effective enjoyment of his private and/or family life; see the case law Hoti v. Croatia.⁴⁶ In the same case, the national authorities had violated a stateless immigrant's right to ‘private life’ in that they had not regularised his residency status for years and left him insecure. Through its judgments, the ECtHR extended the intrinsic rights of Article 8 of the ECHR to the defence of minors, including foreign ones, using the principle of the best interests of the child as an inspiring criterion, reaching the definition of ‘updated guardianship’, which is the backbone of this analysis. Measures restricting the right to reside in a country may, in some instances, violate Article 8 if they create disproportionate repercussions on the private or family life, or both, of the persons concerned, and the responsibility lies with those exercising guardianship.

Still, as regards appointing a guardian, the EtCHR returns to the concept of private life. States' obligations are even more critical when, as in Darboe and Camara v. Italy, the personal relations of an unaccompanied minor are at stake in a migration context that makes him particularly vulnerable.⁴⁷

Stateless minors, including unaccompanied minors, can be affected by severe violations of these fundamental legal identity rights and by challenges faced in obtaining eligibility for mobility, state services, and legal documents.⁴⁸ These concepts are our guide in examining the complex administrative process of Unaccompanied Minor Migrants in this article.

5 The path of regularization: the role of guardianship

In the international legal framework,⁴⁹ Spanish legislation does not distinguish between national and foreign minors, nor within these, between regular and irregular children; the appropriate starting point is guardianship, given that their immaturity restricts their capacity.⁵⁰ The immaturity added to the lack of protection led to the judicial declaration of ‘child without parental care’. The main consequence of this statement is the ‘ope legis’ attribution to the competent public administration of the guardianship of the minor.⁵¹

First, the fundamental question is who cares for the child, not just his/her physical and emotional needs. The lack of material or moral assistance of the minor in a situation of abandonment means he/she falls under the guardianship of the competent Public Body, which becomes responsible for the minor from that moment on. The administrative guardianship of ‘child without parental care’ had been incorporated into the Spanish legal system in the 1987 civil code reform. The guardianship of the Administration⁵² occurs in the situation of abandonment, which is declared by administrative resolution.⁵³

Secondly, the declaration of ‘child without parental care’ highlighted the need to act in advance, precisely to avoid the legal consequences of the assumption of guardianship by the administration. The judges and courts repeatedly declared the need to interpret the concept of ‘child without parental care’ and homelessness restrictively; some regional legislators echoed this jurisprudential doctrine, and when issuing laws on the protection of minors, they incorporated the distinction between situations of risk and helplessness; this was the case of the laws enacted in 1995 by the Parliaments of the regions of Asturias, Madrid and Murcia.⁵⁴

Spain constitutes one of the sui generis cases in the European framework, similar to that of Germany, due to its political decentralization and areas of competence, which determine that each region assumes the guardianship of abandoned minors.⁵⁵ The legislation of Galicia, Andalusia, Castille-La Mancha, and La Rioja attribute to the same autonomous administration the competence regarding vulnerable minors. On the other hand, the Communities of Madrid and Catalonia assign support and education measures to primary care social services.

However, the administrative protection of ‘children deprived of parental care’ is qualified as automatic precisely because it is assigned to the public administration - the Autonomous Communities - by the provision of law without the need to appoint a guardian either by the administration or by the judge. It is a legal mandate. On the other hand, the Law authorizes the judicial authority to assign custody of the minor to the Administration of the Autonomous Communities, and the Children's Service, in particular. However, despite being a public body that assumes the guardianship of minors, the powers of automatic protection or custody do not derive from the administrative legislation but from the civil code. This has to do with the nature of these faculties in Spanish law.

In compliance with the obligation to provide immediate attention, the public body may assume the minor's provisional custody through an administrative resolution. It will notify the Public Prosecutor's Office. Having administrative guardianship, the director of the residential reception centre where the minor is located exercises the custody and care of the minor. Therefore, ‘guardianship’ and ‘caregiver’ are two legal-public institutions with which administrators establish minors' protection.⁵⁶ By the provisions of Article 269 Cc, guardianship implies the duty to watch over the minor under guardianship and to provide them with comprehensive training and their insertion into society.⁵⁷ Furthermore, as of Law 26/2015 reform,⁵⁸ Article 19 bis of the LOPIM requires that when the Public Entity assumes the guardianship of the minor, it must prepare an individualized plan to protect the minor. However, it takes work to implement a personalized life plan, as Save The Children points out in its 2016 report.⁵⁹

Furthermore, the Public Body will cease to exercise guardianship when the reasons for its origin no longer exist, as assumed by Article 276 cc and paragraph 1 of Article 277 of the same,⁶⁰ and when it reliably verifies some of the following:

1. The minor has voluntarily moved to another country.

2. The minor is in the territory of another region whose Public Body has issued a resolution on the declaration of a situation of abandonment and assumed its guardianship or corresponding protection measure or understands that it is no longer necessary to adopt protection measures because of the situation of the minor.

3. Six months have elapsed since the minor voluntarily left the protection centre, leaving his/her whereabouts unknown.

In addition, provisional custody shall cease for the same reasons as guardianship. The automatic guardianship of the Administration is legally configured as a temporary protection measure, which will give way to ordinary guardianship. Concerning the UMMs referred to in Article 35.11 of the LOEX, following the reform of Organic Law 2/2009, ordinary guardianship can be conferred in favour of private entities dedicated to the guardianship of minors, subject to agreement between them and the Administration.

6 The path of regularization: difficulties and vulnerabilities

According to the ISMU Foundation, the transition to adulthood of UMMs starts from the concept of triple passage:

1. The passage of every human being from adolescence to adulthood.

2. The passage from countries of origin to the host country.

3. Finally, the transition related to the legal status in the final country and the consequent social and economic integration.⁶¹

The qualitative leap implies the concept of greater participation of young people in the third phase, as reaffirmed by the United Nations with its youth strategy for 2030.⁶² According to the UN Youth Strategy, there are some key and particularly decisive areas: the legal status that the young migrant obtains upon reaching the age of majority; this allows him/her to access education and training programs; consequent access to the labour market; the opportunity of housing independence; and the fulfilment of the notion of an entirely private life. Furthermore, at the national level, LO 8/2015 of July 22, modifying the child and adolescent protection system, introduced the concept that all minors, including UMMs, must be accompanied during the transition to adult and independent life, according to their abilities.⁶³ However, the law does not explicitly state at what age protection should be granted to ex-protected persons. Therefore, critical reasoning is needed on the purpose of the protection system and the meaning of the actions undertaken within it to understand if the system is efficient and if there is an actual future horizon for minors.

At the local level, there are fifteen plans for the family or childhood, including twelve collective measures for the transition to adulthood of young people in the protection system. Of the fifteen plans, nine expressly refer to protected or assisted housing, and only five include provisions related to measures aimed at adults.⁶⁴ In Spain, Catalonia and the Basque Country are the two regions that have launched multiple programs relating to UMMs when they leave the protection system.

As is known, when young UMMs reach the age of majority, they are no longer protected by the United Nations Convention on the Rights of the Child and, therefore, no longer have access to the rights and opportunities they enjoy as minors. The legislative reform of Royal Decree 903/2021 has developed the procedure for renewing the residence permit if the unaccompanied foreign minor comes of age while holding a residence authorization (Article 197). As the Ombudsman had denounced several times, the UMMs arrived at 18 without a residence permit; they returned to a situation of uncertainty; far from relatives, they lost their caregivers and the authorities who exercised their guardianship. As young ex-protected migrants, JIEX, as defined by the Defensor del Menor de Andalucía,⁶⁵ ‘were likely to face an abrupt change in their ability to access essential services and support in many sectors: education, housing, employment and healthcare, including psychological support’.⁶⁶ The concern within the Council of Europe Committee of Ministers was the vulnerability of this group, without financial means and the possibility of entering the labour market. The danger is of reaching the age of majority without documents, outside the law, and thus becoming an irregular immigrant. The intense pressure from civil society together with NGOs in recent years has made it clear that the previous legislation did not comply with the particularities of the group, as well as with the educational or social-work inclusion programs that public and private institutions address for these young people, to accompany them in the transition to adulthood and independent life. Without the support of the family network, they risked ending up in the shadows, in substantial danger, being exposed to exploitation, often entering the labour force of local mafias and trafficking in human beings and suffering the stigmata of racial prejudice. The administration's lack of diligence proved the lack of coherence between the legislator's purpose and the ‘street-level bureaucracy’.⁶⁷ Often the burden of management falls on employees who do not have a specific background in migration studies and children's rights. The table below shows how the numbers of residence permits are meagre compared to the number of minors in the Spanish protection system.

This table shows the annual evolution of the number of UMMs with and without valid residence authorization in Spain from 2018 to 2022. The data have been extrapolated from various official sources and only sometimes coincide. However, the increase in those with residence permits from 14% of the total to 43% in the first half of 2022 is remarkable.

Most minors under guardianship are close to the age of majority; these differences create serious prejudices; many remain in Spanish territory until they are 18 without obtaining a residence permit, facing situations of irregularity and marginality. Not only are the international rights of the minor not being fulfilled, but there is also the inefficiency of the system of each region, with the loss of money invested for the protection and training of these young people who are then abandoned to their fate.

The search for the causes of the regulation's ineffectiveness lies in the system's initial phase, with the absence of the declaration of ‘child without parental care’ and the consequent appointment of the guardian. Although with Instruction 6/2004⁶⁸ there was a correction of Instruction 3/2003,⁶⁹ emphasizing that ’the best interest of the child’ governs ‘iure tantum’ (the legal presumption that admits evidence to the contrary), the child is considered in all respects, despite which irregularities continue.

The number of UMMs who arrive within the framework of a program or initiative for the transition to adulthood represents a tiny percentage of the total number of children in foster care. This situation derives from some deficiencies in the system in various aspects.

1. Each region has particular characteristics regarding the ‘child without parental care’ category. The 2010 and 2012 Ombudsman reports noted that regions kept minors in the protection system without declaring the ‘desamparo’ and, therefore, without the entity assuming guardianship. As a result, the minors remained in a temporary situation of custody.⁷⁰

2. In some cases, there is a delay in the declaration of abandonment related to delays in the pending age determination procedures.⁷¹

3. In other cases, the region delays the declaration of abandonment as much as possible; consequently, minors are left without a guardian for a period.⁷² The author found cases where delay occurs due to timely renewal. These situations negatively affect the present and future life of the child, who remains without comprehensive protection, access to socio-educational resources, and the possibility of legalizing his/her stay in the territory.⁷³

4. In many cases, when the declaration of ‘child without parental care’ and the assignment of a guardian occur regularly, the program for social-work integration is missing by the provisions of Article 19bis of the LOPJM.⁷⁴ According to the report ‘Invisible Childhoods’,⁷⁵ minors under guardianship often cannot study and train professionally according to their expectations.

5. Often, the child does not know his/her rights. It is a consequence of the absence of assistance from a legal representative and of the UNCRC-sanctioned right to be heard. That is why minors cannot present and follow up directly and individually with their residence process or access the procedure. The absence of a lawyer means they cannot do it through their representative.⁷⁶

6. In Residential Care Facilities, minors receive little information about the right to asylum and how to request it. According to official statistics, no lawyer is present, which helps explain the low number of cases of UMMs asylum seekers.⁷⁷

The Young Immigrant Former Protected (JIEX) should be offered help through ‘after-care’ programs to accompany their transition to an independent life. Of relevance is what is stipulated in LOE 26/2015, particularly, Article 22a, which provides for ‘socio-educational monitoring programmes, housing, socio-occupational integration, psychological support and financial aid’.⁷⁸ Irregular exit from the system generates additional costs for society. The JIEX in the empirical verification tends to depend on basic protection programs, for example, programs for the homeless.⁷⁹ Linked to these inefficiencies is the thorny problem of the dispersal of minors who escape from reception centres before becoming adults, mainly due to the fear of being in an irregular situation and repatriated. In severe cases, they fall into the hands of the mafia or criminal organizations.⁸⁰ Illegal activities are an additional cost to society, which pays twice over.

In February 2018, the NGOs Save the Children, the Noves Vides Association, and the Raíces Foundation asked the Committee for the Rights of the Child for Spain to grant work authorisation to UMMs over 16 years old. The reform of RD 903/2021 accepted the existence of discrimination, such as the fact that minors had to prove a minimum income to renew their residence permit and attempted to modify the situation.

Likewise, the three NGOs have complained that Spain does not have the specific figure of the ‘guardians of the UMMs', persons independent of the Government and with legal knowledge who accompany these minors and guarantee that their rights are fulfilled from their arrival in Spain until their emancipation, and they consequently requested its creation.

7 Conclusion: timing and obstacles related to legal status

In General Comment No. 6 of the Committee on the Rights of the Child, in the section ‘Family reunification, repatriation, and other solutions’,⁸¹ it is established that when integration in the host country is the primary option, it must be based on a permanent legal organization regime, including the residence permit. Furthermore, integration must be governed by rights provided for in the UNCRC, assessing the child's situation and subsequently, in consultation with the child or his or her guardian, determining ‘…the appropriate long-term arrangements within the new community and other measures necessary to facilitate integration’.

The research investigated the conditions where these minors find themselves during the reception phase in the protection centres and their social, educational, and work placement. The quantity and variety of information gathered during the research allowed us to identify challenges and problems of a general and specific nature.

The lack of administrative regularization presents the most significant deficit, with no holistic and coordinated policy that ensures a homogeneous response based on common standards for the guardianship of unaccompanied migrant minors throughout the Spanish territory. This underlying problem explains, among other factors, the heterogeneity observed in each region where children are received. Indeed, the observed reality shows substantial differences, even in the same region or province, from one centre to another. Differences may relate to the quality of services provided in each residential centre, the work team, the activities carried out within the integration projects and the possibility of obtaining a residence permit on time. This means a different standard of protection and realisation of rights depending on the structure in which the child is accommodated. The arrival and presence of unaccompanied migrant children is a problem that goes beyond the territorial vision of each region and perhaps even the State. This study shows that the elements of weakness are found at the local level, in the regions,⁸² between them, and between them and the central State. Furthermore, the analysis provided here recognizes the complexity of the role played by local administrations in supporting the inclusion of young migrants or refugees as they reach adulthood and in developing their capacity for active citizenship.

The competence in the protection of minors is granted to the regions; conversely, the exclusive competence in migration matters belongs to the State. This hybrid system, between aliens and minor rights, is also dual in dividing territorial competencies between national and local bodies.⁸³ In the Immigration Law in Article 2ter, the General State Administration will cooperate with the regions to integrate the migrant population.⁸⁴ The relationships between the vertical levels of protection - between the State Administration, the regions and the Municipalities⁸⁵ -, and at the horizontal level between the regions are essential for better managing the UMMs phenomenon. However, as UNICEF points out, this cooperation is sometimes limited and sometimes absent.⁸⁶

Indeed, the vulnerability of this group justifies this specific protection regime. Still, the concern arises due to the child's best interests that ‘have an expiration date’ upon reaching the age of majority. Therefore, exiting the protection system in a situation of legality would be the natural continuation of the principles inherent in the concept of the child's best interests previously applied.

It is well known that UMMs arrive in Spain with a particular migration project to work and get out of poverty, and, like national minors, they need training requirements to enter the labour market. When public authorities delay applying for documents, residence and work permits, their integration into society is seriously compromised.

Ultimately, the residence permit, according to the Immigration Regulations, Article 25, must be ‘provided urgently’ to unaccompanied children, but the practice has developed differently.⁸⁷ The consequences of the delay or non-compliance are decisively reflected in the UMM's life, without the possibility of legalizing their stays in Spain and losing their social and educational rights and job training.

The number of children who reach the age of majority in transition to adulthood programmes represents a tiny percentage of the total number of children accepted and protected by the system.

This situation results in cases of migratory irregularity due to the inability to prove means of life at the time of the renewal of residence, as seen in the Judgment of the TS 01/02/2019.⁸⁸ It also affects the growth of young adults living on the streets instead of being integrated at the social and labour level in the process of progressive autonomy. In addition, for the UMM, being in the protection centres is felt to be a waste of time⁸⁹ (Interviews, 2018); the result is a non-stop flight from the centres. As already mentioned, young people end up living on the streets, where in the best of cases, they become part of the underground economy, fading into illegality. The paradox of this spiral is that they become a danger to society, which develops prejudices and ideological barriers.⁹⁰

Not only that, the cost of their marginalisation falls again on the citizens, who finance their protection and education, but also the loss of the opportunity to form active citizens.

In the end, the cessation of guardianship in cases of abandonment or escape from the centre is allowed by Law 26/2015 of July 28, modifying the system of protection for children and adolescents when six months have elapsed since the minor has left the protection centre.⁹¹

The legislative effort, culminating with the Royal Decree 903/2021 of October 19, opens a window that could become a door towards the legalization and integration of this collective.