Third Party Intervention in Totopa v. Spain, Application no. 74048/17, December 2019

Written Submission on behalf of Advice on Individual Rights in Europe (the Aire Centre), Dutch Council for Refugees (DCR), the European Council on Refugees and Exiles (ECRE) and the International Commission of Jurists (ICJ).

1. The interveners submit that there is a strong presumption under international human rights law, including the European Convention on Human Rights (ECHR) and this Court’s jurisprudence and EU law, that family unity and the primacy of the best interests of the child are underlying substantive principles in the assessment of Contracting Parties’ obligations under Article 8 ECHR where families are separated in the migration context. Such obligations entail accessible, effective measures to be adopted in order to facilitate family reunion and contact during separation between children and the family members with whom they have a prima facie right to enjoy family life. These measures should not be excessively formalistic, be taken with a view of facilitating family reunion and recognise a child’s particular vulnerability in the migration context while respecting their best interests.
2. It is the interveners’ submission that family ties cannot be equated with biological ties. When the particular circumstances of the case necessitate the proof of biological family ties, excessively rigid evidentiary requirements to verify such ties will undermine the effectiveness of the right to respect for family life. The principles of family unity and best interests of the child dictate that before resorting to invasive and insensitive methods of proving biological family ties, such as DNA testing, the Contracting Parties need to give proper weight to all other available evidence. DNA testing should never be undertaken as a routine practice and should only be used in cases where serious doubts may exist and where no other conclusive evidence is available to prove biological family ties. 
3. The Contracting Parties are under an obligation to make all necessary arrangements to provide individuals with a remedy that is effective in speedily addressing complaints of unlawful family separation, including remedial actions that can rectify such situations by way of family reunion.
4. Finally, the interveners reiterate that the Convention does not exist in vacuum. Article 53 ECHR stipulates that the Convention rights must be construed in accordance with other international human rights obligations of the Contracting Parties, including the Convention on the Rights of the Child (CRC) and International Covenant on Civil and Political Rights (ICCPR), which have attracted near universal ratification. Moreover, Articles 8 and 13 ECHR must be interpreted in a manner consistent with EU law obligations binding on States as a matter of national law.