The case of M.K.A.H. v. Switzerland, Communication No. 95/2019 involves the expulsion of a stateless Palestinian refugee child to Bulgaria under a readmission agreement between Switzerland and Bulgaria concerning persons in irregular status. The United Nations Committee on the Rights of the Child found that Switzerland had violated 10 different provisions of the Convention on the Rights of the Child in the underlying proceedings and asks Switzerland to reconsider the complainant’s asylum claim in light of its decision.
The complainant (now 14) is from the Yarmouk refugee camp, Syria. He experienced the full brutality of the civil war with various warring parties laying siege to his village, and losing his father and several close relatives before fleeing with his mother in search of safe haven abroad. On his way to Switzerland, where he has extended family members, he passed through Bulgaria where he experienced racist verbal and physical abuse. He was granted subsidiary protection status but lived in degrading conditions in various camps without access to schooling or medical care for almost a year. He then came to Switzerland and sought asylum. Switzerland ordered him expelled back to Bulgaria as a “safe third country”.
With the assistance of the CSDM, the complainant alleged inter alia that his expulsion was contrary to his best interests as a child (Art. 3) and would expose him to inhuman and degrading reception conditions (Art. 37). Also, such a removal would cut him off from the essential psycho-social support of his extended family in Switzerland in violation of his right to respect for family life (Art. 16) and would deprive him of the specialized care for trauma victims he was receiving, in violation of his right to rehabilitation (Art. 39).
The European Council on Refugees and Exiles (ECRE), Advice on Individual Rights in Europe (AIRE Centre) and the Dutch Council for Refugees intervened as third parties (click here for their intervention).
In its decision, the Committee found that the Swiss authorities had relied exclusively on the legal presumption that Bulgaria was a “safe third country” and would provide the necessary assistance to the complainant without considering available evidence to the contrary. The Committee observed that the Swiss authorities had failed to conduct any real analysis of the situation in Bulgaria and therefore had undertaken no serious assessment of the foreseeable consequences of the expulsion of the complainant and his mother.
The Committee further found that the Swiss authorities did not consider the particularly vulnerable circumstances of the complainant – a child asylum seeker and traumatised victim of armed conflict – and had not “taken the necessary measures to conduct an individualised assessment of the risks that the child would in fact face in Bulgaria” (§10.7 our translation and emphasis) including notably whether he would have access to the specialized medical care necessary for his physical and psychological rehabilitation as required by Article 39 of the Convention.
The Committee also found that the mother’s wellbeing could not be dissociated from the child’s own wellbeing since she was his only care provider. It observed that the Swiss authorities had not given any consideration to the mother’s serious mental health problems (PTSD related to her experiences of the war in Syria) and the question of whether she would have access to the necessary health services in Bulgaria and by implication, whether she would actually be able to take care of her child in the event of expulsion.
The Committee concluded that the Swiss authorities had violated Art. 3(1) because the best interest of the child had not been a primary consideration in the decision-making process. There was a further violation of Art. 12 because the Swiss authorities failed to hear the child in the asylum proceedings.
Furthermore, the Committee found that the execution of the expulsion measure would violate inter alia the prohibition of torture and ill-treatment (Art. 37), the right to rehabilitation of a child trauma victim (Art. 39) and a violation of the child’s right to respect for family and private life (Art. 16).
Finally the Committee made a series of detailed requests to Switzerland concerning follow-up to its decision, including that Switzerland “urgently re-examine the complainants’ asylum requests” in light of its findings.