According to UNHCR data, between January 2023 and November 2024, 546 unaccompanied migrant children requested international protection in the Canary Islands. Moreover, 350 additional minors were pending an appointment to state their willingness to apply for protection and another 325 had already expressed such will and were cited to submit the application. 

On 21 October 2024, the government of the Canary Islands made a request to the national government asking it to provide immediate access to the system of reception of international protection for those unaccompanied migrant minors. The government claimed that the child protection system of the Canary Islands was unduly replacing the State’s international protection reception system, and that they were carrying out the task of fostering these minors which in fact was the sole responsibility of the State by virtue of Article 149(1)(a) of the Constitution. According to the representative of the Canary Islands, this lack of access to the national reception system was causing a damage to the minors because it left them unprotected from refoulement and prevented their access to the rights that accompany reception. It also caused an overcrowding of the Canary Islands’ child centres, generating tensions and contributing to a negative public perception of reception.

The government of Spain rejected this request on the basis that the exclusive competence to care for unaccompanied minor applicants lied with the Autonomous Community by virtue of the powers assumed in relation to the protection of minors and specifically in relation to unaccompanied minors, under Article 148(1)(20) of the Constitution and Articles 144(1)(d) and 147.2 of the Canary Islands’ Statute of Autonomy. Consequently, the government of the Canary Islands appealed the decision before the Supreme Court. In its appeal, it requested as interim measure that the State give effective reception to the 546 unaccompanied minors who had applied for protection and who continued to be hosted in the child reception system, as well as those who had expressed their interest to apply for protection but had not formally requested it yet (Articles 18, 19 and 31 of Law 12/2009 on asylum and subsidiary protection and Royal Decree 220/2022 of 29 March 2022). 

The dispute of the appeal centred on whether the State or the Autonomous Community was responsible for the reception and care of unaccompanied minor applicants, with each party invoking different legal provisions to support their claim. In that regard, the court found that neither of the two positions was sufficiently solid to exclude the opposite and, consequently, there was a clear concurrence of competence of both the national and the regional administrations. On the one hand, the court recalled that the unaccompanied minor is, above all, a minor, and hence must be treated with the protection status specific to minors, as  provided for in each autonomous community, and established in Article 148(1)(20) of the Constitution and Articles 144(1)(d) and 147.2 of Canary Islands’ Statute of Autonomy. On the other hand, the unaccompanied minor is also an applicant for international protection and consequently, they must be granted access to the national reception system, which is a state competence as established in Article 149(1)(a) of the Constitution.

However, the court found that, although both administrations had competences involved in the matter at hand, the fact remained that the State reception system, had not been made available to them, although these children were fully entitled to it. The court found that unaccompanied minors were exclusively in charge of the child protection system of the Canary Islands, having no access to the resources and mechanisms specific to the national reception systems for applicants for international protection, leading to a situation of overcrowding and an incompatibility with the best interests of the minors. 

Given these circumstances, the court held that it was imperative to guarantee immediate access for unaccompanied minor applicants to the State reception system, and such access should be granted as a precautionary measure. In order to grant this access, the court found that there must be mandatory collaboration between the State and the requesting Autonomous Community, and that both administrations must coordinate their responsibilities to prioritise the best interests of the child.

Finally, the court clarified that unaccompanied minors who have expressed the intention to apply for international protection but have not yet formally submitted their application must, for precautionary purposes, be treated the same as formal applicants. This interpretation was considered the most aligned with the protective spirit of Spanish and EU asylum law, which prioritised procedural safeguards for vulnerable individuals, especially for minors.

The court concluded that the State Administration was required to guarantee, within the non-extendable period of 10 days, access and permanence to the national reception system to those minors who were currently in charge of the child protection services of the Canary Islands and who had applied for international protection or expressed their willingness to request it, with the necessary collaboration and cooperation of the requesting Autonomous Community. The court underlined that these actions must be carried out under the principle of the best interests of the minor.