Committee on the Rights of the Child rules in a case concerning humanitarian visa for a Moroccan child under the care of two Belgian nationals

Monday, November 5, 2018

On 5 November, the Committee on the Rights of the Child (CRC) ruled in a communication regarding the denial by the Belgian authorities to issue a humanitarian visa to the parents of a child that was placed under their care.

In 2011, the applicants had been granted an order by a Moroccan court to take an abandoned child under their care and supervision, according to the domestic system of kafala. The applicants then tried to apply for a long-term residence permit on humanitarian grounds on behalf of that child. The Belgian authorities, however, refused to grant the residence permit, on the grounds that the kafala system is not equivalent to adoption and cannot give rise to a right to residence. Due to this system’s particularity, family ties are not established and humanitarian grounds regarding the child’s abandonment were also not sufficient.

After several legal challenges, the couple communicated the case with the CRC, complaining of discrimination based on birth and disregard towards the best interests of the child, as enshrined in the Convention on the Rights of the Child. The Committee found the complaint to be admissible, despite a second pending procedure before the Belgian Council of Alien Law Litigation. As seven years had elapsed since the first request and it is currently for the same authority to review a request that it has already rejected on two occasions, the complainants were considered to have exhausted all available and effective domestic remedies.

In the merits, the Committee found that the Belgian authorities did not centre their actions around the principle of the best interests of the child, as Article 3 of the Convention requires. More specifically, they failed to consider, inter alia, the family links that would have been de facto established by this common life over the years, or the emotional needs of that child, regardless of the adoption framework. On the right of the child to be heard, the Committee dismissed the Belgian authorities’ argument that the child’s young age did not create such a requirement. Article 12 of the Convention does not impose any age limit on the right of the child to express their views and Belgium failed to give the child an opportunity to even form a general opinion. On the government’s reluctance to accept the visa application due to the fact that the kafala system does not create a family, the Committee recalled the need for a broader interpretation of the term “family”, to also include members of the extended family or community, as provided by local custom, in accordance with Article 5 of the Convention.

The Committee concluded that the State party had failed to comply with its obligation to process the visa application, equivalent to a request for family reunification, in a positive spirit, with humanity and diligence, in violation of article 10 of the Convention.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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Best interest of the child
Family member
Residence document