CRC: Declares Switzerland did not consider the best interests of the child in a removal decision to Bulgaria

Wednesday, October 6, 2021

On 6th October 2021, the Committee on the Rights of the Child gave their decision in the case of MKAH v Switzerland. This case was brought by the Centre Suisse pour la defense des droits des migrants (CDSM) with a joint third party intervention from the AIRE Centre, ECRE and the Dutch Council for Refugees. It concerned a stateless Palestinian boy who was born in a refugee camp in Damascus, Syria. After losing his father and close relatives, him and his mother left Syria. On their way to Switzerland, where they had extended family members, they passed through Bulgaria where both were subject to traumatising strip searches and abuses. They were granted subsidiary protection status in Bulgaria, but after eight months living in a camp with inadequate material conditions and no access to education or labour, they travelled to Switzerland where they stayed with her brother and his family. However due to their subsidiary protection status in Bulgaria, the Swiss asylum authorities ordered their removal back to Bulgaria. After an unsuccessful appeal and reconsideration request, the applicants brought their complaint to the CRC, on the basis of violations of Articles 3, 6, 7, 12, 16, 22, 27, 28, 37 and 39 of the Convention on the Rights of the Child.

The Committee firstly emphasised that the best interests of the child should be a primary consideration in judicial and asylum proceedings. It reasoned that Switzerland did not give this appropriate consideration when it failed to take in to account the numerous reports indicating the risk of inhuman and degrading treatment for children in similar situations in Bulgaria?, the condition of the applicant as a victim of armed conflict and ill-treatment and to carry out an individualised assessment of the risks. Furthermore, in response to the State’s defence that charitable organisations are available for third country nationals in Bulgaria, the Committee disagreed, noting that support of charities are not an implementation of State’s obligations. Subsequently, the Committee draws attention to the severe mental health condition of the applicant’s mother, which was shown in medical reports, her focal role as his caregiver and her inability to speak Bulgarian and access the labour market, all of which should have been key considerations when assessing the best interests of the child. From these deductions, the Committee concludes that there is a violation of Articles 3, 6, 22, 27, 28, 37 and 39 of the Convention.

Focusing on Article 7 of the Convention, the Committee declared that Switzerland had not taken the necessary steps to ensure that the applicant would have access to nationality in Bulgaria, therefore not following the positive obligation implied in this Article. In regards to Article 12, the Committee did not accept Switzerland’s argument that the applicant should have explicitly requested to be heard. The Committee elaborates that the determination of the best interest of the child requires a situation to be assessed separately from its parents and thus the absence of a direct hearing of the child is a violation of Article 12. Finally, the Committee turns its attention to the claims under Article 16 and recalls that the term “family” within the meaning of the Convention covers a range of structures for care including both nuclear and extended family. The Committee states that the applicant’s separation from her cousins and uncle is likely to cause further disruption to the applicant’s development and social re-integration, thereby determining a removal as an arbitrary interference with his privacy and a violation of his rights under Article 16.

In light of the above, the Committee recommended Switzerland to: reconsider the decision to return MKAH to Bulgaria; urgently re-examine the applicant and his mother’s asylum application ensuring the best interests of the child are a primary consideration, the applicant is duly heard and taking into account the particular circumstances of the case; take in to account that MKAH may remain stateless in Bulgaria, ensure MKAH receives qualified psychological assistance to facilitate his rehabilitation and to take all necessary measures to ensure violations don’t recur.

Based on an unofficial translation within the EWLU team. Photo: Matthias Ripp, January 2016, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Best interest of the child