The communication concerned M.K.A.H., a stateless child, and centred around whether Switzerland violated his rights under Articles 2 (2), 6, 7, 16, 22, 24, 27, 28, 29, 37 and 39 UNCRC when it decided to return him and his mother back to Bulgaria, pursuant to the agreement between Switzerland and Bulgaria relating to the readmission of migrants in irregular situations, where they had previously obtained subsidiary protection.
Some of the findings of the Committee included: (i) Switzerland had not respected the best interests of the child nor heard him at the time of the hearing of the asylum request; (ii) the child ran a real risk of being subject to inhuman and degrading treatment in case of a return to Bulgaria; (iii) Switzerland had not sought to take the necessary measures to verify what access to nationality the child could benefit from in Bulgaria. Article 7 UNCRC implicates that States must take the necessary positive actions to implement the right to acquire nationality.
The applicant is a stateless Palestinian from Lebanon, who was denied statelessness status recognition as he was found to fall under the exclusion grounds of the 1954 Convention, even after leaving the territory under UNRWA mandate.
The judgment relies on earlier Constitutional Court judgments that have established that stateless persons who lost their nationality involuntarily and demonstrated that they do not have the right to permanent legal residence elsewhere should get residence rights in Belgium on an equal footing with refugees, and that the necessary national legislation is lacking to give effect to such rights. The applicant has a criminal record and was denied residence rights on that basis, but the Court ruled that criminal convictions are irrelevant for his residence rights, and ordered authorities to regularise his residence until new legislation comes to force that regulates the stateless persons' right to residence.
The applicant was born in China and is of Tibetan origin. He fled China to Nepal, and then made his way to Belgium through India on a fake passport. His asylum applications failed, he has been detained with a view to deportation to China, but had been released due to the Chinese authorities not issuing the necessary documents. The applicant also unsuccessfully attempted to organise voluntary return through IOM, contacting authorities of China, India, and Nepal. These facts convinced the Court to recognise the applicant as stateless.
The applicant, a Russian-speaking non-citizen of Estonia, applied for asylum in Russia, claiming discrimination on the basis of ethnicity in Estonia. The Court considers the problematic situation of non-citizens of Estonia, but concludes that the circumstances of the applicant's claim do not constitute basis for protection in Russia under the asylum framework.