Court:
UN Committee on the Rights of the Child
Date:
4 February 2021
CRC provisions:
CRC, Article 2 (non-discrimination)
CRC, Article 3 (best interests of the child)
CRC, Article 13 (freedom of expression)
CRC, Article 14 (freedom of thought, conscience and religion)
CRC, Article 16 (protection of privacy)
CRC, Article 17 (access to appropriate information)
CRC, Article 19 (protection from abuse and neglect)
CRC, Article 22 (refugee children)
CRC, Article 29 (aims of education)
OPIC, Article 7 (d) and (f) (admissibility)
Domestic provisions:
Aliens Act (Finland)
Case summary:
Background:
The author was born in the Russian Federation in 2010. His biological mother is a lesbian who lived with her female partner. The couple concealed the nature of their relationship out of fear of persecution and discrimination. In 2013, legislation that prohibits “promoting non-traditional sexual relationships” was adopted in Russia. The family faced harassment and threats, and their son started to suffer from bullying and isolation at school. In 2015, when the boy was five, the family moved to Finland, where they sought asylum and residence permits. While their application was being processed, the boy started to attend school, made friends, learned about different types of family structures, and started calling both of his parents “mother”.
The Finnish Immigration Service rejected the application. They recognised the past experiences of threats, bullying and discrimination. However, they concluded that these did not amount to persecution and the family would not be in danger of being subjected to severe violations of their rights or to serious harm, if returned to their home country. The Finnish Immigration Service included a statement that the “best interests of any child was to be allowed to live together with his or her parents”. The boy was not heard in the context of the proceedings. The family appealed to the Helsinki Administrative Court. The Court confirmed the conclusion of the Finnish Immigration Service. The judgment made no reference to the best interests of the child. Leave to appeal to the Supreme Court was rejected and the family returned to Russia in 2017.
Issue and resolution:
Best interests and protection from violence: Finland failed to adequately take the best interests of the child as a primary consideration when assessing the author’s asylum request based on his mothers’ sexual orientation, and to protect him against a real risk of irreparable harm in case of return to Russia.
Court reasoning:
The Committee recalled that the best interests of the child should be a primary consideration in decisions concerning the return of a child. It also stated that the best interests of the child should be ensured explicitly through individual procedures as an integral part of any administrative or judicial decision concerning the return of a child. The assessment of a child’s best interests must include respect for the child’s right to express his or her views freely and due weight given to those views in all matters affecting the child. In order to demonstrate that the right of the child to have his or her best interests assessed and taken as a primary consideration has been respected, any decision concerning the child or children must be motivated, justified and explained. In this case, the Finnish Immigration Service had included a statement that “the best interests of any child was to be allowed to live together with their parents”. The Finnish authorities had made only a formal and general reference to the best interests of the child and had not considered the child’s own views. This reflected a failure to consider the specific circumstances of the boy’s case. Therefore the State had failed to take the best interests of the child as a primary consideration when assessing the boy’s asylum request.
The Committee also noted that the assessment of the existence of a risk of serious violations of the Convention in the receiving State should be conducted in an age- and gender-sensitive manner. Decisions concerning return of the child should ensure that the child, upon return, will be safe and provided with proper care and the full and effective enjoyment of the rights recognised in the Convention and the holistic development of the child. The Committee recognised that it is generally for State authorities to review and evaluate facts and evidence in order to determine whether a risk of a serious violation of the Convention exists upon return, unless it is found that such evaluation was clearly arbitrary or amounted to a denial of justice. In this case, the Committee considered that the State failed to properly consider the real risk of a serious violation of the child’s rights such as violence and harassment upon his return to Russian Federation, which was foreseeable at the time of the decision to return based on his past experience of discrimination and bullying. The Committee emphasised Finland’s failure to consider the boy’s young age at the time of the decision, and the permanent impact that constant bullying and stigmatisation based on this mother’s sexual orientation may have on the boy. Therefore the State had failed to protect him against a real risk of irreparable harm in case of return to Russia.
The Committee held that Finland is under an obligation to provide an effective reparation to the boy, including adequate compensation. Finland is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future, in particular by ensuring that the best interests of the child is effectively and systematically taken into account in the context of asylum proceedings, and that children are systematically heard.
Excerpts citing CRC:
Consideration of admissibility
11.3 The Committee takes note of the author’s claims based on articles 2, 13, 14, 16, 17, and 29 of the Convention related to the incidents and constraints that the author experienced as a child of an LGBT family in the legal and social context in the Russian Federation. The Committee notes, however, that the author has failed to sufficiently substantiate these claims as alleged violations of the State party’s non refoulement obligations, and declares this part of the communication inadmissible under article 7 (f) of the Optional Protocol.
Consideration of the merits
12.2 The Committee takes note of the author’s claim that national authorities failed to conduct a proper assessment of the best interests of the child in the examination of his application for asylum or residence permit, in violation of his rights under articles 3 and 22 of the Convention. In particular, the author alleged the absence of an individual assessment of his safety as a child of an LGBT family and the failure to consider his views during the proceedings, undisputed by the State party. The Committee recalls that the assessment of the existence of a risk of serious violations of the Convention in the receiving State should be conducted in an age- and gender-sensitive manner, that the best interests of the child should be a primary consideration in decisions concerning the return of a child, and that such decisions should ensure that the child, upon return, will be safe and provided with proper care and the full and effective enjoyment of the rights recognized in the Convention and the holistic development of the child. The best interests of the child should be ensured explicitly through individual procedures as an integral part of any administrative or judicial decision concerning the return of a child, and the legal rationale for all judicial and administrative judgments and decisions should also be based on this principle. The Committee further recalls that the assessment of a child’s best interests must include respect for the child’s right to express his or her views freely and due weight given to said views in all matters affecting the child. The Committee also recalls that it is generally for the organs authorities of the States parties to the Convention to review and evaluate facts and evidence in order to determine whether a risk of a serious violation of the Convention exists upon return, unless it is found that such evaluation was clearly arbitrary or amounted to a denial of justice.
12.3 In the present case, the Committee notes that both the Immigration Service and the Administrative Court referred to the family’s past experience of threats and discrimination, and the bullying against the author, but concluded that these could not be considered as amounting to persecution. The Committee also notes that the Immigration Service’s decision included a statement that the “best interests of any child was to be allowed to live together with his or her parents”.
12.4 The Committee recalls that, in order to demonstrate that the right of the child to have his or her best interests assessed and taken as a primary consideration has been respected, any decision concerning the child or children must be motivated, justified and explained. The motivation should state explicitly all the factual circumstances regarding the child, what elements have been found relevant in the best-interests assessment, the content of the elements in the individual case, and how they have been weighted to determine the child’s best interests. In this regard, the Committee observes that the formal and general reference to the best interests of the child by the Immigration Service, without having considered the author’s views, reflects a failure to consider the specific circumstances surrounding the author’s case and to assess the existence of a risk of a serious violation of the Convention against such specific circumstances.
12.5 The Committee further notes that the authorities of the State party, in taking the decision to deport the author, failed to properly consider the real risk of serious violation of the author’s rights such as violence and harassment upon his return to Russian Federation, which was foreseeable at the time of the decision to return based on his past experience of discrimination and bullying. In particular, it notes the lack of consideration of the author’s young age at the time of the decision, and of the permanent impact that constant bullying and stigmatization based on this mother’s sexual orientation may have on the author. This resulted in the State party’s failure to find a real risk of irreparable harm to the author as a ground for the application of non-refoulement obligations.
12.6 In light of all the above, the Committee concludes that the State party failed to adequately take the best interests of the child as a primary consideration when assessing the author’s asylum request based on his mothers’ sexual orientation, and to protect him against a real risk of irreparable harm in case of return to the Russian Federation.
13. The Committee, acting under article 10 (5) of the Optional Protocol, is of the view that the facts of which it has been apprised amount to a violation of articles 3, 19, and 22 of the Convention.
14. The State notes that the V.B. and A.S. applied for assisted voluntary return, which was granted, and that they returned to the Russian Federation, together with the author, on 7 August 2017. In light of this, the Committee considers that, in the circumstances of the present case, the State party is under an obligation to provide an effective reparation to the author, including adequate compensation. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future, in particular by ensuring that the best interests of the child is effectively and systematically taken into account in the context of asylum proceedings, and that children are systematically heard.
Notes:
CRIN, together with the International Commission of Jurists (ICJ), the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA World), and the Network of European LGBTIQ* Families Associations (NELFA) submitted a third-party intervention to the Committee. The intervention provided information relevant for the assessment of the best interests of the child of LGBTI parents in the context of deportation to Russia.
Citation:
Communication No. 51/2018 (CRC/C/86/D/51/2018)
Link to Full Judgment: https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/FIN/CRC_C_86_D_51_2018_32344_E.pdf
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.