Eight children of Moroccan nationality born and raised in Melilla, a Spanish enclave city in Morocco, to migrant parents, who had irregular administrative status submitted four different communications to the Committee on the Rights of the Child. Even though the children had the right to attend public school by law, they were unable to access public education in Melilla in practice, because they were requested to provide documents that were difficult or impossible to obtain given their irregular administrative status. The Committee on the Rights of the Child found that Spain had violated the applicants’ right to non-discrimination and to education under Article 2 of the Convention on the Rights of the Child, read in conjunction with Article 28, and Article 6 of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure.
Articles 2, 3, 28 and 29 of the Convention on the Rights of the Child
Article 6, 7(c), (e) and (f) of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure
In May 2019, the four applicants all applied for their schooling under the ordinary procedures established by Spanish domestic law. The children' s mothers enclosed their birth certificates from Melilla, copies of their passports (except in communication 118/2020), and other documents such as the family record books (in communications 114/2020, 116/2020 and 118/2020) and applications for the issuance of health cards (communications 116/2020 and 117/2020). None of the applicants received any response from the Administration and subsequently between October and December 2019 submitted complaints or requests for the enforcement of the schooling act or implementation of the school enrolment procedure. In the face of further silence, the applicants lodged a contentious-administrative appeal requesting the adoption of an urgent precautionary measure or interim injunction consisting of the children’s enrolment in school. Each of these measures or injunctions were dismissed by the Spanish Administrative Courts in February or April 2020.
The applicants together argued that there had been a violation of Article 2 of the Convention on the Rights of the Child (the Convention) due to the authorities’ refusal to allow them to attend school. The applicants argued inter alia that, as they were born in Melilla and their residence in that city had been amply demonstrated, the refusal to allow them to attend school could only be explained by discrimination on the grounds of their Moroccan origin and lack of a regular residence permit. The applicants also claimed that they had been denied the right to education because of their Moroccan origin and their lack of a regular residence permit, in violation of the provisions of Article 2 of the Convention. The applicants also claimed that since primary schooling is not only a right but also an obligation, its denial in their cases constituted a violation of their best interests, in violation of Article 3 of the Convention. They added that at no time had a determination of their best interests been made, and further alleged that their lack of schooling prevented them from being able to lead a decent standard of living that allowed the development of all their faculties, in violation of Article 28 of the Convention. The applicants in communication No. 118/2020 claimed that this also violated Article 29 of the Convention. Finally, the applicants pointed out that the residence they attended is not secular, and so they were forced to be educated in the Muslim religion, violating their right and that of their parents to religious freedom, protected by Article 14 of the Convention.
The State Party argued, inter alia, first that the applicants had not exhausted the available domestic remedies under Article 7(e) of the Optional Protocol. The State Party submitted that, at the time of submission of the communications to the Committee on the Rights of the Child (the Committee), there were contentious-administrative proceedings in relation to schooling for the 2019/2020 school year, two of which were at the appeal stage (communications 116 and 118/2020) while in the other two the applicants did not appeal, leaving the respective decisions final. Spain further argued that direct access to the Committee should not be allowed before the domestic judicial process had been completed, and that the domestic courts must be given the opportunity to rule on the merits of the cases in question within a reasonable time. Spain challenged that the reason why the applicants were being prevented from attending school was that they were in Melilla in an irregular situation, and argued that they were unable to attend school because they did not have a residence permit or a visa. Spain submitted that the reason for the refusal to allow the applicants to attend school was the fact that they had not provided proof of effective residence by the means required by the applicable regulations. It added that none of the documents submitted with the application for enrolment, or subsequently, constituted serious evidence of the applicants' actual and permanent residence in Melilla. Finally, Spain argued that, in three of the four communications, the enquiries carried out by the National Police showed that the applicants did not reside at the addresses indicated. Spain reaffirmed that there was no discrimination against the applicants on the grounds that they are foreigners, since the reason for not sending them to school was in no case a lack of a registration certificate or a residence permit, but rather a failure to prove effective residence in Melilla. Spain therefore requested that the communication be declared inadmissible or dismissed on the grounds that no violation of the Convention had been found.
Admissibility
The Committee noted that it must first decide whether the communication was admissible, in accordance with rule 20 of its rules of procedure under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure. The Committee considered that the prolonged exclusion of a child from the compulsory education system constituted irreparable harm within the meaning of Article 6 of the Optional Protocol. In light of the denial of all interim measures of protection requested by the applicants, the Committee considered that the domestic judicial proceedings were unreasonably prolonged, and impeded the applicants’ access to justice. The Committee therefore considered that the applicants had sufficiently substantiated their claims under Articles 2, 3 and 28 of the Convention, to the effect that their right of access to education was violated, that they were discriminated against on the basis of their national origin and administrative status; and that their best interests were not duly considered in their denial of access to compulsory education. The Committee therefore declared the complaint admissible and proceeded to an examination of its merits. (paragraphs 9.1-9.5)
Merits
The Committee determined the following three issues for consideration: (a) whether Spain had violated the applicants' right of access to education under Article 28 of the Convention; (b) whether the denial of the applicants' schooling constituted discriminatory treatment under Article 2 of the Convention; and (c) whether the process by which the applicants' provisional schooling was sought took due account of their best interests under Article 3 of the Convention. (paragraph 10.3)
In relation to the first issue, the Committee noted Spain's argument according to which none of the documents submitted by the applicants constituted serious evidence of their actual residence, but that the documentation provided by the applicants to apply for schooling constituted, at the very least, an indication of their residence which gave rise to a positive obligation on Spain to carry out the necessary enquiries to confirm their actual residence. The Committee noted that the National Police conducted visits to the applicants' alleged homes to confirm their effective residence between September and November 2020, almost 18 months after the applicants' application for schooling. The Committee considered that, in addition to the obligation to immediately enrol children whose effective residence is confirmed, Spain should have taken all necessary measures to confirm their effective residence in an expeditious manner. The Committee therefore could not consider that 16-18 months was a reasonable period of time for the fulfilment of this obligation, and found that the applicants' right of access to education under Article 28 of the Convention had been violated because of the delay of 16 to 18 months by the administration to take positive action to confirm the effective residence of all the applicants.(paragraphs 10.4-10.6)
In relation to the second issue, the Committee considered that the applicants had shown in practice, that the application of administrative requirements for access to public education had a disproportionate effect on children who were irregular residents in Melilla (and therefore non-nationals), and who faced undue delays in their schooling. The Committee therefore considered that the facts revealed at the very least the existence of a de facto and indirect differentiation based on the applicants' irregular administrative status and thus their national origin. It found that Spain's legitimate interest could not entail the de facto exclusion from the education system, for a prolonged period of time, of children who are in an irregular administrative situation. The Committee considered that Spain had not duly demonstrated that the manner in which the administrative requirements had been applied was necessary and proportionate in the light of the legitimate interest pursued, particularly in the light of the applicants' vulnerability and the serious impact of their prolonged exclusion from the public education system. The Committee therefore concluded that the application of the administrative requirements imposed for access to public education, which resulted in the applicants' non-enrolment for almost or over two years, constituted a violation of their right to non-discrimination under Article 2 of the Convention. (paragraphs 10.7-10.9)
Finally, in relation to the third issue, the Committee did not consider it necessary to rule on the allegations relating to Article 3. (paragraph 10.10)
The Committee found a violation of the applicants’ right to non-discrimination and to education under Article 2 of the Convention on the Rights of the Child, read in conjunction with Article 28. The Committee also held that the Spain’s failure to comply with the requested interim measures (consisting in the immediate enrolment of the applicants in school) constituted in itself a violation of Article 6 of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure. The Committee set out several recommendations for Spain to follow, including providing the applicants with an effective remedy for the violations suffered, including adequate compensation, as well as taking positive measures to assist them to catch up and achieve the same level of schooling as their peers as soon as possible. Spain is also under an obligation to prevent similar violations in the future.
A. E. A. v. Spain (CRC/C/87/D/115/2020)