A.M. (on behalf of M.K.A.H.) v. Switzerland

Parties (including notable third parties)

A.M. on behalf of M.K.A.H. (Applicant); Switzerland (Respondent); The AIRE Centre (Advice on Individual Rights in Europe), European Council on Refugees and Exiles, and the Dutch Council for Refugees (Third Party Interveners)

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Summary of 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. Needing to leave Syria for their safety, A.M. and M.K.A.H. travelled to Turkey and then 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 in Switzerland, they searched for the Applicant’s brother and his family, with whom they stayed for two 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 re-admit them, which was granted. On 25 September 2018, the SEM rejected their asylum application and ordered their removal to Bulgaria, finding that even if their allegations of poor treatment in Bulgaria were true, they could access social assistance and judicial remedies there.

The Applicant appealed to the Tribunal Administratif Fédéral (‘TAF’), who rejected the appeal stating that Bulgaria had medical structures and the possibility to treat the Applicant, upholding the SEM’s decision. A request for reconsideration submitted by A.M. and M.K.A.H. was rejected by the SEM. They appealed the decision before the TAF who found that the appeal had no reasonable prospect of success and imposed anticipated judicial fees. 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.

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Legal Arguments

Legal arguments by the Applicant

The Applicant made several arguments under Articles 2 (2), 6, 7, 16, 22, 24, 27, 28, 29, 37 and 39 UN Convention on the Rights of the Child (‘UNCRC’), in particular:

• Recognition of her son’s statelessness status would be refused due to the lack of legislation to this effect in Bulgaria, in violation of his rights under Article 2(2).
• By failing to explain how the return measures were compatible with her child’s best interests and not addressing their allegations, the Swiss authorities violated the procedural and substantive obligation inherent to Article 3(1). The circumstances leading up to his arrival in Switzerland and what awaits him upon return would retraumatise M.K.A.H. and thus render his return to Bulgaria contrary to his best interests. The Applicant relied on public reports to demonstrate that Bulgaria offers deficient or no reintegration assistance to persons with international protection, specifically relating to access to housing, education and medical care.
• M.K.A.H. was not given the possibility to be heard during the asylum interview, contrary to Article 12. The Applicant added that the right of the child to be heard was closely linked to the obligation to determine his best interests and her son was at an age where he could have easily been heard, in circumstances that were appropriate and adapted to children.
• The return of M.K.A.H. to Bulgaria would result in breaking bonds created with his uncle and cousins, which would represent an arbitrary and illegal interference, in violation of Article 16.
• In light of Article 22, Switzerland has positive obligations pursuant to M.K.A.H.’s status as an asylum seeker, specifically to provide appropriate protection for the enjoyment of rights enunciated in the Convention. The extreme vulnerability of child asylum seekers imposes on States specific obligations of care and due diligence.
• Switzerland’s return measures would constitute a violation of Article 37, prohibiting ill treatment, because M.K.A.H. would be retraumatised by the expulsion and Bulgarian conditions in respect of individuals having subsidiary protection are inhuman and degrading.
• The expulsion would violate M.K.A.H.’s right to physical and psychological recovery and social reintegration as the medical treatment he requires will not be available to him. He would be retraumatised if returned to Bulgaria, which would violate Article 39. Should the Applicant’s mental health condition worsen rendering her incapable of taking care of her son, his wellbeing would be directly affected.

Legal arguments by the Respondent

The State submitted that the communication was partly inadmissible because domestic remedies had not been exhausted in respect of some of the alleged violations specifically relating to M.K.A.H.’s state of health. The State accepted that arguments made in respect of other violations had been raised, but submitted the communication was inadmissible because it was manifestly ill-founded or insufficiently motivated.

It recalled that A.M. and M.K.A.H.’s statuses as persons benefiting from international protection in Bulgaria meant that Bulgaria had to guarantee them access to care, housing and employment in the same conditions as Bulgarian nationals; and that the return to Bulgaria was based on the agreement between Switzerland and Bulgaria relating to the readmission of migrants in irregular situations. It argued that Article 3 UNCRC does not confer the subjective right to obtain asylum or reside in a particular State or region, and that the TAF took into account the child’s best interests, M.K.A.H.’s age, his links with family and the duration of his stay in Switzerland, and living conditions in Bulgaria.

The State alleged that the Applicant failed to demonstrate that her son would be left without any form of education and face discrimination; that M.K.A.H.’s state of health was not so specific that it could not be treated in Bulgaria; that, under European law, Bulgaria had to grant refugees and persons with subsidiary protection the ability to work; and that, thanks to their subsidiary protection, the Applicant and her son no longer had to fear eventual arbitrary detention measures.

The State further submitted that the Applicant did not demonstrate that her return to Bulgaria would violate Articles 2 and 7 UNCRC because nothing suggested that the Applicant had initiated the procedure to recognise her son as stateless in Bulgaria, which meant she could not allege discrimination on this basis.

The State made further allegations in relation to other rights.

Third-party Intervention

The third-party interveners (AIRE centre, ECRE, DCR) raised the argument that 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 obtainment 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.

Outcome

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 admissible and proceeded to its examination on the substance.

The Committee concluded that the complaints relating to Articles 24 and 29 UNCRC were inadmissible and that the complaints relating to Article 2(2) UNCRC were manifestly ill-founded and thus inadmissible.

Merits

In respect of the arguments relating to 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.

On 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.

On Article 12 UNCRC, the Committee recalled that this provision 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.

In respect of 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 UNCRC: 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.

Remedial order:

The State party is obligated to:

(a) Reconsider the deportation decision under the readmission agreement;

(b) Urgently review the asylum application, ensuring: best interests are a primary consideration; M.K.A.H. is duly heard; account is taken of mental health problems of both mother and child, need for and accessibility of treatment in Bulgaria, and conditions of reception for a child accompanied only by his non-Bulgarian-speaking mother;

(c) Take into account the risk of M.K.A.H. remaining stateless in Bulgaria;

(d) Ensure M.K.A.H. receives qualified psychosocial assistance for rehabilitation;

(e) Take measures to prevent recurrence, including removing legal, administrative and financial obstacles to children challenging decisions, ensuring children are systematically heard in asylum procedures, and ensuring national return protocols comply with the Convention.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	UN Convention on the Rights of the Child	Articles 2 (2), 3, 6, 7, 12, 16, 22, 24, 27, 28, 29, 37 and 39
International	Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure	Articles 7 e), f) and g)
International	Convention relating to the Status of Stateless Persons 1954
Regional	European Convention on Nationality
Regional	Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection (recast)	Articles 11, 14 and 26
Domestic	Ordonnance 1 du 11 août 1999 sur l'asile relative à la procédure	Article 5

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Patricia Cabral ‘MKAH v Switzerland: The Right to a Nationality in the Convention on the Rights of the Child’ (2022)4(2) The Statelessness & Citizenship Review 293

• The author argues that M.K.A.H. v Switzerland is an innovative decision by the UN Committee on the Rights of the Child and a welcome and significant advancement in the reduction of childhood statelessness. Article 7 of the UNCRC does not establish who holds the responsibility for granting a nationality to a child, but State parties have a responsibility towards all children within their jurisdiction.
• The joint interpretation of Articles 3 and 7 UNCRC requires States to put in place non-discriminatory nationality laws with full safeguards to prevent and reduce statelessness among children who have a relevant  link to that State, including children of refugees or children in migration. The UN Committee on the Rights of the Child did not ask Switzerland to grant protection to MKAH nor to grant him a nationality, but it confirmed that the right to a nationality must be an essential consideration in the assessment of asylum and return procedures, and confirms that States bear responsibility in conducting an individualised assessment of the risk that children would face if returned to another country, including whether the child would have access to a nationality.
• The need to conduct an individualised assessment in return decisions has been asserted by the Human Rights Committee and the European Court of Human Rights in other cases.