CRC - A.M. (on behalf of M.K.A.H.) v. Switzerland (no 95/2019)

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.

Case name (in original language)
A.M. (au nom de M.K.A.H.) c. Suisse
Case status
Decided
Case number
CRC/C/88/D/95/2019
Citation
A.M. (au nom de M.K.A.H.) c. Suisse, no 95/2019, UN Committee on the Rights of the Child (CRC), 6 October 2021
Date of decision
State
Court / UN Treaty Body
Committee on the Rights of the Child (CRC)
Language(s) the decision is available in
French
Applicant's country of birth
Syria
Applicant's country of residence
Switzerland
Relevant Legislative Provisions
  • Articles 2 (2), 3, 6, 7, 12, 16, 22, 24, 27, 28, 29, 37 and 39 UNCRC
  • Articles 7 e), f) and g) Additional Protocol UNCRC
  • 1954 Convention Relating to the Status of Stateless Persons
  • 1997 European Convention on Nationality
  • Articles 11, 14 and 26 Directive (2011/95/EU) of the European Parliament and of the Council of 13 December 2011   
  • Article 5 Ordonnance 1 du 11 août 1999 sur l'asile relative à la procédure (Ordonnance 1 sur l'asile, OA 1)
Facts

A.M., the applicant, of Syrian nationality, acted on behalf of her son M.K.A.H. who was born in a refugee camp run by Palestinian authorities. The family moved to Syria and was exposed to the effects of the civil war, after which A.M. and M.K.A.H. travelled to Damascus, Idlib and eventually crossed the border into Turkey and Bulgaria. On 29 September 2017, after trying to cross into Romania and being detained several times in difficult conditions, A.M. and M.K.A.H. were registered as asylum seekers in Bulgaria. On 24 April 2018, Bulgaria gave them subsidiary protection. They were held in a camp and ultimately returned to Turkey before they made their way to Switzerland. Upon arrival, they searched for the applicant’s brother and his family, with whom they stayed for 2 days, before presenting themselves to the Swiss authorities. On 6 August 2018, they made a request for asylum. The Secrétariat d'État aux migrations (SEM) requested that Bulgarian authorities readmit them; they granted the request. The SEM found that even if the allegations regarding their treatment in Bulgaria were true, A.M. and M.K.A.H. could benefit from social protection and invoke their rights before tribunals. On 25 September 2018, the SEM rejected their asylum request and ordered their return to Bulgaria, where they benefitted from subsidiary protection. The applicant appealed to the Tribunal Administratif Fédéral (TAF). The TAF rejected the appeal, stating that Bulgaria had medical structures and the possibility to treat the affections presented by the applicant, and further confirmed the SEM’s decision. A.M. and M.K.A.H. filed a request for reconsideration with the SEM, which was rejected. They appealed the decision before the TAF who found that the appeal had no reasonable prospect of success and imposed anticipated judicial fees of 1,626.73 USD. The applicant could not pay the fees and the TAF rejected the appeal for default of payment on 14 August 2019, without examining the substance.

Decision & Reasoning

Admissibility

The Committee considered that the applicant had sufficiently substantiated, for the purpose of admissibility, the complaints under Articles 3(1), 6(2), 7, 12, 16, 22, 27, 28, 37 and 39 UNCRC by which: (i) the State has not respected the best interests of the child nor heard the child at the time of the hearing of the asylum request and; (ii) the child runs a real risk of being subject to inhuman and degrading treatments and would not benefit from appropriate measures for physical and psychological readaptation in case of return to Bulgaria. It concluded this part of the communication was applicable and proceeded to its examination on the substance. 

The Committee concluded that the complaints relating to Articles 24 and 29 UNCRC were inadmissible by application of Articles 7(e) Additional Protocol, and that the complaints relating to Article 2(2) UNCRC were manifestly ill-founded and thus inadmissible by application of Article 7(f) Additional Protocol.

Substance

Articles 3(1), 6(2), 22, 27, 28, 37 and 39 UNCRC: The Committee, recalling the contents of General Comment 6, noted that the risk of grave violation should be appreciated with consideration to the sex and age of the interested party, evaluated in conformity with the principle of precaution and, when reasonable doubt exists as to whether the destination state can protect the child against such risk, State parties should abstain from returning the child.

It further recalled that the best interests of the child is a primary consideration in decisions concerning the return of a child and that such decisions should give assurance, by way of a procedure anticipating appropriate guarantees, that the child will be secure, correctly taken in charge and enjoy his rights. It restated that the burden of proof does not fall exclusively on the applicant to the communication. In this respect, the Committee took note of the reports cited by the applicant and the third party and considered that, while the State party took into account that Bulgaria was a party to human rights instruments and affords protection to individuals benefiting from subsidiary protection in its review of the asylum request, it did not properly account for the numerous reports indicating that the risk faced by children in similar situations to those of M.K.A.H. of being subject to inhuman and degrading treatment was real. It did not properly account for M.K.A.H.’s status as a victim of armed conflict and asylum seeker alleged to have previously suffered maltreatment in Bulgaria, nor did it attempt to take the necessary measures to conduct a personalised evaluation of the risk M.K.A.H. would be exposed to in Bulgaria.

The Committee considered that the State party had not properly taken into account the applicant’s severe mental health condition and failed to find out whether her specific medical needs could be effectively assured in Bulgaria. It found that her mental health was essential for the harmonious development and survival of the child. In this respect, the Committee noted that the applicant did not speak Bulgarian, had great difficulty accessing the local job market and would not have the necessary means to obtain access to healthcare services.

Article 7 UNCRC: The Committee noted that when the applicant and her son made their request for asylum, they explicitly stated that M.K.A.H. was stateless and observed that the State party had not sought to take the necessary measures to verify what access to nationality the child could benefit from in Bulgaria. It stated that Article 7 UNCRC implicates that States must take the necessary positive actions to implement the right to acquire nationality.

Article 12 UNCRC: The Committee recalled that Article 12 UNCRC guarantees the right of the child to be heard in all judicial or administrative proceedings concerning him. It recalled that, after the child has decided to be heard, he must decide the way in which he will do so “either directly, or through a representative or appropriate body.” (General Comment no. 12 (2009), par. 35) Article 12 UNCRC imposes no age limit concerning the right of the child to express his opinion and the Committee discourages state parties from adopting, in law or in practice, age limits which restrict the right of the child to be heard on matters that interest him. The Committee did not share the State’s argument that M.K.A.H. should have demonstrated his own capacity of discernment and explicitly requested to be heard. The Committee recalled that the determination of the best interests of the child requires that their situation be evaluated separately, notwithstanding the reason having motivated their parents’ asylum request.

Article 16 UNCRC: The Committee recalled that the term ‘family’ in the sense of the Convention “refers to a variety of arrangements that can provide for young children’s care, nurturance and development, including the nuclear family, the extended family, and other traditional and modern community-based arrangements.” (General Comment No.7 (2005), par. 15) The Committee considered that, in the circumstances, the separation of the child from his cousins and uncle risked causing additional disturbances in his development and social reintegration.

 

Outcome

On the facts, the Committee found a violation of Articles 3(1) and 12 UNCRC and that the return of the applicant and her son to Bulgaria would otherwise constitute a further violation of Articles 6(2), 7, 12, 16, 22, 27, 28, 37 and 39 UNCRC.

Articles 3(1), 6(2), 22, 27, 28, 37 and 39 UNCRC: The Committee considered that the State party had not considered the best interests of M.K.A.H. as a primary consideration when it evaluated the risks to which he would be exposed if he were sent back to Bulgaria, and further failed to take sufficient precautions to guarantee that he not be subject to inhuman or degrading treatment in the destination country. This, it found, revealed a violation of Article 3(1) and a potential violation of Articles 6(2), 22, 27, 28, 37 and 39 UNCRC.

Article 7 UNCRC: The State party, knowing that M.K.A.H. was stateless, should have taken all necessary measures to assure itself that he would have access to a nationality in case of return to Bulgaria. The Committee considered that M.K.A.H.’s rights drawn from Article 7 UNCRC would be violated in case of return to Bulgaria.

Article 12 UNCR: The Committee found that the absence of a direct audience with the child consisted a violation of Article 12 UNCRC.

Article 16 UNCRC: The Committee concluded that the return of M.K.A.H. to Bulgaria would represent an arbitrary interference in his private life, in violation of Article 16 UNCRC.

Caselaw cited

CRC :

A.N. c. Suisse, CAT/C/64/D/742/2016, par. 8.7

El Hassy c. Jamahiriya arabe libyenne (CCPR/C/91/D/1422/2005), par. 6.7

I.A. M. c. Danemark (CRC/C/77/D/3/2016), par. 11.8 

M. T. c. Espagne (CRC/C/82/D/17/2017), par. 13.4

Medjnoune c. Algérie (CCPR/C/87/D/1297/2004), par. 8.3. 

RAA. c. Danemark, (CCPR/C/118/D/2608/2015), para. 7.7 et 7.9

V.A. c. Suisse (CRC/C/85/D/56/2018), par. 7.3 et 9

Warda Osman Jasin c. Danemark (CCPR/C/114/D/2360/2014), para. 8.9 

Y.A.A. and F.H.M. c. Danemark, (CCPR/C/119/D/2681/2015), par. 7.7 

CCPR :

Bayush Alemseged Araya c. Danemark, 3 mai 2019, par. 9.7

Comité des droits de l’homme, Hibaq Said Hashi c. Danemark, 9 octobre 2017, par. 9.10

ECHR :

Mubilanzila Mayeka et Kaniki Mitunga c. Belgique, Cour EDH, n° 13178/03 para. 55

Popov c. France, Cour EDH, requêtes n° 39472/07 et 39474/07, arrêt du 19 avril 2012, par. 91

Tarakhel c Suisse [GC], ECtHR, no. 29217/12, par. 98. 

Tarakhel c. Suisse, CourEDH [GC], requête n° 29217/12, arrêt du 4 novembre 2014, par. 99

CJEU :

CJEU, Ibrahim et Al, C- 297/17, ECLI:EU:C:2019:219, § 90, 19 mars 2019 

Third party interventions

The third party interveners (AIRE centre, ECRE, DCR) raised the following points: 

In order to conform with the best interests of the child and benefit from appropriate protection under Article 22 UNCRC, migrant children require access to procedures and measures that respect their fundamental rights, including the right to be heard.

Grave violations of economic and social rights can fall under the prohibition of non-refoulement when they amount to degrading living conditions, destitution, extreme precarity or an absence of medical treatment. The burden is on State parties to carry out an individualised assessment of the risk a child would be confronted to in the country of return.

The third party referred to the UNHCR’s observations relating to Bulgaria’s failings in respect of providing measures for integration of asylum seekers, for persons with specific needs and the many obstacles refugees face in attempting to access rights; this insecurity continuing beyond obtention of their status. It submitted that Bulgarian law on termination of protection is wider than the European Directive in respect of qualification.

The intervenors asserted that the positive obligations incumbent upon State parties to protect stateless children requires that decisions of return include a rigorous evaluation of all the facts and circumstances of the child in order to guarantee this right is implemented in a way which does not render the child stateless and that his other fundamental rights under the Convention are not affected in consequence.