Introduction

When children’s rights and state sovereignty meet in migration law, their relationship becomes fraught with tensions. This could be a key reason why 15 of the 16 communications on which the CRC Committee on the Rights of the Child adopted views pursuant to Article 10(5) of the Optional Protocol providing a Communications Procedure (CRC OP3), concern the rights of children in a migration context.¹

The present case of V.A. v. Switzerland (CRC/C/85/D/56/2018) also concerns asylum seeking children. In it the CRC Committee found a violation of Article 12 CRC because the author’s two children, E.A and U.A (hereinafter: 'the children') had not been heard pending a Dublin transfer from Switzerland to Italy. Moreover, the fact that the Swiss authorities had not heard the two children on their traumatic migratory experiences demonstrated a lack of due diligence in assessing their best interests, amounting to a violation of Articles 3 and 12 of the CRC.

The author’s claims under Article 2 (non-discrimination), Article 6(2) (right to life, survival and development), Article 24 (right to the highest attainable standard of health) and Article 37 (protection against inhuman and degrading treatment) of the CRC were considered inadmissible. Although the CRC Committee declared the author’s claim under Article 22 CRC (protection of refugee and asylum seeking children) admissible, it did not engage with this provision in its consideration of the merits.

Outline of Substantive Issues

V.A., a journalist under political pressure in her home country Azerbaijan, fled in 2017 to Switzerland with her husband and her two sons, E.A. and U.A. After being subjected to reception conditions they considered inadequate, the family reluctantly accepted to go back to Azerbaijan in the course of the asylum procedure. A few months following their return, the father was imprisoned for political reasons. Following her husband’s arrest, the author was allegedly threatened by the authorities as a consequence of her journalism and political activities. In 2018, V.A. and her children returned to Switzerland, this time via an Italian visa. Facing a Dublin transfer back to Italy, the author requested the Swiss authorities to apply Article 17(1) of the Dublin III Regulation, arguing that the transfer would violate the rights and best interests of her children. Pursuant to this “sovereignty clause”, a State may decide to examine an application for international protection, when not obligated to do so under the criteria established by the Dublin III Regulation.

The Swiss authorities refused to apply the sovereignty clause and ordered the removal of the family to Italy. This led to an attempted forced transfer in distressing circumstances, with a police intervention in the middle of the night. According to the author, the police showed the children a picture of a forced removal with restrained people, which scared them. Because the author suffered panic attacks, the removal could not be carried out. According to V.A., the police abandoned her children at Zurich airport without money, instructing them to make their own way back to their accommodation in Ticino. As a result of this traumatic experience, the state of health of the author and her children allegedly worsened, including sleeping problems and anxiety.

E.A. and U.A. were 8 and 3 years old at the time of the Dublin investigation in 2018. The authorities did not seek their views at any stage of the proceedings. According to Swiss asylum law, children only need to be heard in case of discernment, i.e. when they have the necessary capacity to understand the objective of the asylum procedure and expose their views. In the practice of the State Secretariat for Migration, such discernment can be presumed from the age of 14 years onwards.

Pending the consideration of the complaint, the CRC Committee requested the Swiss authorities to adopt interim measures to suspend the family’s removal, to which they complied.

Procedural Issues

The most notable procedural issue in V.A. v. Switzerland concerns the justiciability of the CRC’s provisions. For the first time, the CRC Committee explicitly discusses in its Views the direct effect of the rights anchored in the CRC. According to the Swiss state party, Articles 2(2), 3, 6(2), 22 and 24 of the CRC are ‘of a programmatic nature’ and do not contain subjective rights, violations of which could be invoked before the CRC Committee (para. 4.10 of the Decision).

The CRC Committee firmly contests this view. It stresses the interdependence and equal importance of all CRC rights (CRC GC 15 (2013), para. 7; para. 6.5 of the Decision), and recalls that Article 3 of the CRC constitutes not only an interpretative principle and a rule of procedure, but also a self-executing substantive right that can be invoked before a court (CRC GC 14 (2013), para. 6). Moreover, pursuant to Article 5(1) of the CRC OP3, communications may be submitted regarding alleged violations of “any of the rights” in the CRC or its first two Optional Protocols. Finally, the CRC Committee notes that it already pronounced itself on alleged violations of these articles with respect to previous communications.²

The CRC Committee declares the grievances regarding the attempted transfer and the reception conditions during the family’s first stay in Switzerland inadmissible under Article 7(e) CRC OP3. The Committee found that the author failed to exhaust all available domestic remedies because she did not institute legal proceedings, even though she complained to the cantonal authorities. The complaints under Article 2 CRC are considered manifestly ill-founded and therefore inadmissible under Article 7(f) CRC OP3, because they are couched in very general terms. The author’s allegations under Article 24 CRC that her children would not receive the necessary healthcare in Italy, are equally considered manifestly ill-founded, because the author did not submit any evidence substantiating these allegations.

The claims regarding Article 3 (best interests of the child), Article 12 (right to be heard) and Article 22 (right of asylum seeking and refugee children to appropriate protection) CRC are declared admissible.

Findings

The absence of a direct hearing of E.A. and U.A. during the Dublin investigation constituted a violation of Article 12 CRC. The CRC Committee confirms its position that Article 12 does not impose an age limit for children to express their views and discourages states to adopt age limits restricting children’s right to be heard (CRC GC 12, para. 21). The CRC Committee also stresses that the interests of accompanied children do not necessarily coincide with those of their parents, and should therefore be assessed separately.

Moreover, the CRC Committee finds the omission to hear the two boys on their traumatic experiences displayed a lack of due diligence of the Swiss authorities in assessing the children’s best interests, and amounted to a violation of Articles 3 and 12 CRC.

Consequently, the Swiss State Party should urgently re-examine the author’s request to apply the sovereignty clause of the Dublin III Regulation, ensuring that the children are heard and that their best interests are a primary consideration. When assessing the children’s interests, the authorities should adopt a contextualised approach, taking into account the family’s social bonds in Switzerland, as well as possible traumas caused by the children’s multiple changes of environment.

At a more general level, the Swiss authorities should take all measures to prevent similar violations from happening in the future. In this respect, the CRC Committee recommends that children are 'systematically heard in the context of asylum procedures', and that national protocols on deportation of children are conform to the CRC (para. 9 of the Decision).

Commentary

Interpreting Articles 3 and 12 CRC: how to hear very young children in asylum proceedings?

Due to their vulnerable situation, migrant children like E.A. and U.A. are not only in need of adequate protection but should also benefit from a strong legal position in the asylum procedure (see Rap, 2019). In order to ensure effective participation of children in compliance with children’s rights, access to justice must be ensured in a child-sensitive and appropriate manner, taking children’s age and maturity into account (CRC GC No. 12; see also Council of Europe Guidelines on child-friendly justice). Whereas the CRC Committee justifiably disapproves the automatic refusal to hear children below a certain age, its categorical recommendation that “children should systematically be heard in the context of asylum proceedings” (para. 9 of the Decision) may be problematic in practice, as any nuance regarding age and maturity seems missing.

The involvement of very young children (U.A. is only 3 years old) poses challenges to legal professionals (see e.g. Van Hof et al., 2020). How to hear a baby, a toddler or a preschool child in practice seems a legitimate concern of immigration authorities. Moreover, a children’s rights perspective implies that being heard is an informed and voluntary choice of each child. In this respect, the State Party should ensure that an expert who is trained to understand a child’s feelings and perspectives assesses the child’s capacity to form his or her own views on a case-by-case basis (Ang et al., 2006, p. 14; Vandenhole et al., 2019, p. 145). At the same time, children must always have the opportunity not to speak up if they so prefer. Arguably, the CRC Committee could go further in providing guidance to States Parties and legal professionals on how, in practice, the justice system should deal with (very young) children on the move in a manner that reflects not only their best interests, but also their position as rights holders. It is not clear from the decision how (very young) children could be heard, what specificities might apply to such hearings, or whether all of these modalities are left to the States Parties’ discretion. More concrete guidance on how “children should systematically be heard in the context of asylum proceedings” may prevent the standards of the CRC Committee from being dismissed as unrealistic or unworkable on the ground.

A too narrow focus on Articles 3 and 12 CRC in the children’s rights community?

It is striking that in all 16 cases where the CRC Committee’s adopted views, a violation of Article 3 CRC is established, and that in all 10 views in which the author claims a violation of Article 12, this violation is acknowledged by the CRC Committee. Articles 3 and 12 CRC are also the provisions that have been implemented most commonly in national and regional legislations (e.g. in the Common European Asylum System), and that triggered most academic commentary (Brittle & Desmet, 2020). It could be argued that both provisions play a prominent role in the international children’s rights framework as general principles of the CRC. Yet, the other two general principles – non-discrimination (Article 2 CRC) and the right to life, survival and development (Article 6 CRC) – have received far less attention in the CRC Committee’s decision-making. Article 2 CRC has been invoked in almost half of the communications on which the Committee adopted views, but a violation has not yet been established. A violation of Article 6 was raised twice before, and only in W.M.C. v. Denmark, the CRC Committee found that a return to China would amount to a violation of Article 6. Attention for Articles 2 and 6 in literature has equally been scarce (Brittle & Desmet, 2020).

In this regard, we suggest the hypothesis of a “vicious circle” of overemphasis on Articles 3 and 12 CRC in the CRC Committee’s guidance, national legislative and judicial practice, authors’ communications as well as scholarship (we plead guilty ourselves). As a consequence, the potential of the two other general principles as well as the other CRC rights to contribute to human dignity and justice for children may not be fully tapped. By contrast, in migration law scholarship, attention for the principle of non-discrimination is on the rise (see e.g. den Heijer, 2018; Rodrigues in Klaassen et al., 2020; Spijkerboer, 2018). The right to life, survival and development could play an important interpretive role when assessing the risks involved in deporting children to their country of origin or transferring them to another country (as in this case).

In relation to the views discussed here, it is particularly remarkable that the CRC Committee declared the complaint regarding Article 22 admissible, yet did not come back to this provision in its consideration of the merits. Even if the CRC Committee considered there to be no added value in assessing the claim under Article 22 CRC separately, given that violations of Article 3 and 12 had been found (an instance of ‘absorption’), this should have been indicated. Such an absorption approach is only justified where the dominant right constitutes the basis of the claims. Even then, “[a] separate analysis of the various alleged human rights violations not only does justice to the claims of the petitioners as they see them and contributes to the development of the human rights regime, but could also impact the relief granted” (Verdonck & Desmet, 2017, p. 459). Given that Article 22 is the most specific Convention provision on refugee and asylum seeking children, it appears surprising that the CRC Committee has not taken the opportunity to further clarify its meaning. In M.T. v. Spain and R.K. v. Spain, the two cases in which a violation of Article 22 has been found, the CRC Committee has clarified that Article 22 contains a right of an unaccompanied minor to have a guardian appointed (see also Commentary by Ceriani Cernadas on these cases).

Towards higher quality decision-making

High-quality legal reasoning contributes to the persuasiveness of (quasi-)judicial decisions of human rights actors. In this respect, V.A. v. Switzerland leaves room for improvement from at least three angles.

First, two inconsistencies between the consideration of admissibility and the consideration of the merits can be identified. On the one hand, as flagged above, the CRC Committee does not refer to Article 22 in its consideration of the merits, even though it declares the claim admissible. On the other, the CRC Committee does make a general recommendation to the Swiss State Party that the return of children should be children’s rights compliant, whereas the grievances related to the attempted transfer were found inadmissible (para. 9 of the Decision).

Second, (quasi-)judicial decisions are ideal occasions to give flesh to the substantive rights enshrined in human rights treaties and enhance the implementation of these rights in real-life contexts (see also Vandenhole et al., 2019, p. 481). However, the CRC Committee is remarkably succinct in its consideration of the merits. Whereas such sections in other views are already short (on average between 1300 and 2300 words), the CRC Committee establishes here a violation of Articles 12 and 3 in less than 800 words. This general and relatively superficial approach limits the possibilities of the CRC Committee to elaborate on the precise nature of legal obligations. For example, the Committee does not mention in its general remedies the provision of adequate child-centred training of professionals involved in asylum proceedings (see, by contrast, R.K. v. Spain). As a consequence, the views fall short of realising their potential in guiding States Parties in the interpretation and implementation of their legal obligations under the CRC in a migration context.

Moreover, the presentation of the legal reasoning in the CRC Committee’s views would benefit from a clearer structure. In this sense, the CRC Committee could draw inspiration from the judgments of regional human rights courts, such as the European Court of Human Rights and the Inter-American Court of Human Rights. These judgments are usually explicitly subdivided on the basis of the articles of which a violation is alleged. After a summary of the main arguments of the applicant and the State Party, the courts then typically first recall the general principles established in previous case law, before applying them to the particular circumstances of the case, possibly giving additional interpretative guidance. The CRC Committee could adopt a similar approach, separating more neatly its assessment of the different alleged violations, and starting its assessment with a recapitulation of general principles related to that CRC provision, as established in its general comments, for instance. For the same sake of clarity, a separate section comparable to the operative part in judgments could be considered, summarising the CRC Committee’s findings and providing for remedies.

When assessing the quality of the Committee’s decisions, it should be considered that the CRC Committee is not a court, that not all its members are legal experts and that time and resource constraints may seriously impact the quality of decision-making. Nevertheless, in our view, children’s rights would benefit from a more structured, consistent and in-depth approach in the quasi-judicial decisions of its global expert body.

Remedies for violations of children’s rights

The communications procedure can provide relief for child victims where national remedies are insufficient or unavailable (UNGA, para. 4). By taking a principled stance on the justiciability of children’s right under the Convention, the CRC Committee seeks to maximise the potential of the CRC OP3 to overcome gaps in children’s legal protection by bridging national and international standards. This complementarity between national and international law is a valuable way in which domestic remedy mechanisms may be reinforced by international avenues for protection (Vandenhole et al., 2019, p. 481). However, the Committee does not explicitly identify how rights other than Article 3 and Article 12 CRC may be justiciable, as evidenced by its absorption of Article 22 under these two key provisions. At the same time, the Committee’s remarks on inadmissibility send a clear message to future authors and their lawyers, in that communications should be sufficiently precise and substantiated.

Nevertheless, the Committee’s finding of violations of Articles 12 and 3 CRC as regards the rights of accompanied minors in asylum proceedings is a notable improvement compared to previous decisions (see Commentary by Kilkelly on E.P. and F.P. v. Denmark), and will hopefully contribute to an increased respect for the rights of this often invisible group in asylum proceedings.