The Government has announced that it will transfer to the peninsula 500 girls who arrived in Ceuta on July 30 and have remained in the autonomous city for 20 days in very harsh conditions: outdoors, without water or food or the possibility of washing themselves and under the threat of being victims of sexual assault. The NGO Save the Children estimates that there are still around 4,000 minors in Ceuta. Europe and the PP advocate his expulsion from the country. The Government has also assured on several occasions that “all” immigrants who remain in Ceuta will be repatriated. Is it possible to expel unaccompanied minors from Spain?
What law is applied to proceed with the expulsion of immigrants who arrive in Spain irregularly?
In these cases, Organic Law 4/2000, of January 11, on the rights and freedoms of foreigners in Spain and their social integration (LOEX) and its implementing regulations, Royal Decree 1155/2024, in force since May 20, 2025, apply.
What happens when immigrants are minors?
Spanish law establishes that minor immigrants who arrive irregularly are legally considered Unaccompanied Foreign Minors (MENAS). Their protection absolutely prevails over their immigration status, so an ordinary expulsion process cannot be applied to them. Article 35 of the LOEX regulates a specific regime for the protection of unaccompanied foreign minors.
How is that specific regime put in place?
If any of the immigrants settled in Ceuta say they are 16 or 17 years old, or there are reasonable indications that they may be a minor, they cannot simply be treated as an irregular foreign adult and expelled. Their age must be determined and the child protection system activated, if applicable.
Who is in charge of taking the first steps in the process?
The Juvenile Prosecutor's Office is responsible for coordinating the protection of children and legally determining their age through medical tests if there are doubts. Previously, unaccompanied minors undergo a medical examination where their physical and mental state is evaluated. Afterwards, they are automatically under the guardianship of the child protection services of the Autonomous Community where they are located.
Can these minors be expelled?
After being protected by guardianship, an administrative expulsion process can begin, but with a dropper. The law makes it very clear that it is not about punishing minors, but rather about seeking their “greater protection.” Thus, a child can only be repatriated after verifying that the “best interests of the child” are met by returning them to their family or under the protection services of their country of origin.
What are the first procedures?
The General Commissariat for Immigration and Borders must take steps to try to locate the parents or, failing that, verify that the institutions of the country of origin can take care of the minor safely.
What does the procedure consist of?
Article 193 of the regulations regulates a procedure in which the entity in charge of guardianship must provide a report on the psychological situation of the minor and their roots and specify whether or not their return is appropriate. A report from the country of origin obtained through diplomatic representations must also be included.
Should we listen to the minor?
Yes. The child must be heard with the help of an interpreter and a public defender. It is assessed whether it has sufficient maturity. If you are over 16 years of age, you have autonomous legal capacity to oppose and act in the process. Afterwards, a 10-day allegations period opens in which the minor, his guardian or the Public Prosecutor's Office can present objections to the return if risks are detected.
Who is responsible for issuing the resolution?
The Government delegation is in charge of processing the file and issuing the resolution, which must be motivated. Repatriation can be approved if it is confirmed that the minor's family is waiting for him in decent conditions or that his country offers a safe environment. On the other hand, it is denied if it is demonstrated that the child is in danger of abandonment, persecution or helplessness. In that case, it will remain under the guardianship of the Spanish State.
What happens if it is decided that the minor be repatriated?
If it is agreed that the minor returns to his country of origin, the Police must accompany him and formally hand him over to his family or to the designated authorities of his country.
What happens if the expulsion is not authorized?
If as a result of the file it is concluded that the minor cannot return home because it is not safe for him, because his family cannot be located or because his country of origin does not cooperate, Spain assumes his total and prolonged protection, leaving the child under the definitive legal guardianship of the Child Protection Entity of the Autonomous Community where he is located. This implies that the State must provide food, accommodation, health care and schooling.
What happens if the expulsion file is not resolved within three months from its beginning?
It is a fairly common assumption because in many cases the countries of origin do not collaborate. Thus, the law, always a guarantee, determines that after three months without the file having been resolved, the case is archived and the minor is automatically issued a legal residence card.
What is the Government delegate exposed to if he does not comply with these procedures and expels the minor directly?
Failure to comply with the immigration law can end up in court. There is a precedent. The former delegate of the Government in Ceuta Salvadora Mateos and the former president of the Government of the autonomous city Mabel Deu were sentenced for prevarication to nine years of disqualification by the Provincial Court of Cádiz for having expressly repatriated 55 Moroccan minors in 2021 without complying with all procedural procedures.
Is European law different?
Yes. European law is not as protective as Spanish law. The process of expulsion of immigrants, adults and minors, is regulated in the Return Directive of the European Union (Directive 2008/115/EC), which was transposed into Spanish legislation in 2009, 2011 and 2015. However, the European regulations clash with the Spanish one, which continues to be more guaranteeing, which is possible because the directive is something like a basic law, which establishes general criteria, but when it comes to adaptation The principle of the most favorable norm prevails over domestic legislation.
What are the differences?
European law allows minors in some cases to enter Detention Centers for Foreigners (CIE) together with adults and Spanish law does not contemplate that possibility. Furthermore, Europe does not contemplate that the file be archived and, consequently, the minor be given papers if it has not been processed after three months, as is the case in Spain. But in any case, European regulations are not without guarantees and, although they allow the return of minors to their country, they also require ensuring that the children are delivered to their family or to the appropriate reception services in their place of origin.
Does Europe want to toughen the laws?
Yes. The European Union has drafted a new legislative block, which has not yet come into force, composed of nine regulations and a directive, which tighten regulations on immigration. However, the new regulations maintain the idea of protecting the best interests of the minor and exclude unaccompanied minors from the most severe return processes.
What conclusions are drawn from the application of these laws?
Yes, there is the possibility that children who have arrived in Ceuta can return home as long as it is with their family or under the guardianship of their country of origin, but it is a very remote option, since in most cases the children have fled their homes and countries because they felt unsafe there.
