Spain - Spanish Supreme Court (Tribunal Supremo), Cassation and Procedural Breach Appeal, 23 September 2014 (Appeal Nº 1382/2013)

Country of Decision:
Country of Applicant:
Date of Decision:
23-09-2014
Citation:
Spanish Supreme Court, Cassation and Procedural Breach Appeal, 23 September 2014, Appeal Nº 1382/2013 (ECLI:ES:TS:2014:3818)
Court Name:
Spanish Supreme Court, Civil Chamber
National / Other Legislative Provisions:
Spain - Act No. 4/2000 of 11 January on the rights
freedoms and social integration of foreigners in Spain.
Spain - RD 557/2001
which approves the regulation implementing Organic Law 4/2000 of 11 January on the rights
freedoms and social integration of foreigners in Spain as amended by Organic Law 2/2009
Printer-friendly versionPrinter-friendly version
Headnote: 

The Supreme Court held that an immigrant whose passport or equivalent identity document reveals their minority cannot be subjected to additional tests in order to determine his age unless a proportionality judgment about the document’s reliability has first been carried out. The Court also held that medical techniques to determine an age cannot be applied indiscriminately.

Facts: 

Upon arriving in Spain, Miss B.A. (hereafter, the “Claimant”) had a passport and birth certificate from her country of origin that proved she was a minor. However, the public administration subjected her to medical tests in order to determine her age.

On 2 September 2009, the Claimant received a decision from the Spanish government (the “Dirección de Atención a la Infancia y Adolescencia del Departamento de Acción Social y Ciudadanía de la Generalitat de Cataluña”: hereafter, the “Decision”) stating that the tests  proved that she was not a minor. As a result, the director of her reception centre was removed as the legal guardian of the Claimant.

The Claimant appealed the decision before the lower court, which upheld the appeal. The prosecution appealed and the appellate court reversed the first judgment.

Finally, the Claimant submitted an appeal before the Supreme Court  which was decided in favour of the applicant.
Decision & Reasoning: 

The Supreme Court upheld the judgment of the lower court. It reasoned that:

(1) The validity of a passport depends on (i) the requirements of the country of origin and, (ii) the court being in possession of enough data to determine the identity and nationality of its holder.

(2) When security forces locate an unidentified foreigner and it is not possible to determine with certainty whether they are a minor, the case must be reported to the prosecution and the necessary medical tests to determine age must be carried out (article 35.3 of Law 4/2000).

(3) However, where the validity of a passport is not in dispute and when the passport reveals that an immigrant is a minor, that immigrant is not an unidentified foreigner. Therefore, they shall not be subject to additional tests to determine their age.

(4) Tests for the determination of age shall not be applied indiscriminately. If required, a proportionality test shall be carried out and the reasons for considering the passport or equivalent identity document unreliable shall be weighed against the reasons for considering it reliable, which was not what happened in the case in question.

In addition, the court concluded that medical techniques to determine a foreigner’s age (both in case of documented and undocumented migrants) cannot be applied indiscriminately. With regard to the claimant, the Court held that her minority could not be questioned as she had a valid passport and birth certificate proving her minority. As a consequence, she should be granted the protections provided by law to unaccompanied minors.

Outcome: 

The Supreme Court upheld the appeal, annulling the previous judgement, and confirming the judgment given by the lower court.

Observations/Comments: 

It is established as case law that an "immigrant whose passport or equivalent identity document reveals his/her minority cannot be considered an undocumented foreigner to be subjected to additional tests of age determination. In order to carry out these additional tests when a valid passport is available, a reasonable justification is required. Thus a proportionality test must be carried out, and the reasons as to why the document is unreliable must be adequately weighed against the reasons as to why it is reliable. In any case, medical techniques to determine a foreigner’s age (being both in case of document and undocumented migrants) cannot be applied indiscriminately.”

This case summary was written by Linklaters LLP. 

Other sources cited: 

European Parliament resolution of 12 September 2013 on the situation of unaccompanied minors in the EU (2012/2263(INI).

 
Case Law Cited: 

Spain - Decision of the Provincial Court of Guipúzcoa, 30th Section (18 December 2007)