El procedimiento para la determinación de la edad de los extranjeros no acompañados. Bases para un nuevo modelo

Abstract

This study examines the current procedure for age assessment of Unaccompanied Minor Migrants (hereafter, UMMs). After making reference to the phenomenon of migration of minors and its contextualisation within the framework of the Spanish legal system, the legal concept of UMMs has been analysed, concluding that Spain has improperly departed from the definition consolidated by the EU and therefore has extended the subjective scope of the age assessment procedure. Two different aspects of the procedure have been studied in depth: the material one and the formal one. As for the material aspect, minors’ rights have been examined from a critical approach based on the Convention on the Rights of the Child, signed by Spain, which states that these rights must be guaranteed and recognised. From the formal point of view, the following questions have been dealt with: the analysis of the means of evidence and whether these follow any order of precedence taking into account the best interest of the minor; whether the jurisdiction currently conferred on the Prosecution Service is appropriate under the terms of the Organic Statute of the Prosecution Service; and finally, whether the expected legal channels guarantee the rights and the decision-making process. Finally, this study analyses two models (judicial and administrative) which could replace the one currently in force, provided that certain basic pillars proposed at the end of this study are guaranteed.