Court/Judicial body: State Council, Administrative Section
Date: 11 June 1996 CRC
Provisions: General reference (no particular Article cited).
Other international provisions:European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8 : Right to respect for private and family life
Domestic provisions: Law of 15 December 1980 on foreigners’ access to the national territory
Background: This case concerned the claimant’s request to urgently suspend the execution of a removal order after he was refused refugee status on the grounds that the enforcement of the order would violate his right to a family life as well as his daughter’s right to be raised by her father. The administration was however not aware of the existence of the claimant’s family.
Issue and resolution: Separation from parents. Whether the enforcement of a removal order breached the claimant and his child’s right to family life when the administration was unaware of the existence of said family. The Court ruled that there was no human rights violation.
Court reasoning: The Court rejected the claim as inadmissible as the claimant did not demonstrate the urgency of the matter despite using the urgency procedure. In addition, the administration could not be expected to enquire about the family situation prior to taking a removal order. Rather, it was the claimant’s responsibility to inform the administration. The Court also rejected the argument that the claimant’s right to a family life, based on the European Convention on Human Rights, was breached. According to the Court, the defendant did not have knowledge of the claimant’s daughter nor of his future wedding, and did not have an obligation to enquire about such matters prior to issuing the removal order. Finally, the Court refused the notion that the child’s right to be raised by her father, contained in the CRC, was violated. After restating the claimant’s responsibility to inform the administration about his family life, the Court declared that the CRC was not directly applicable in domestic law and, as such, the rights it contained could not be invoked before a domestic court.
Excerpt citing CRC and other relevant human rights In French language: “Considérant que le requérant invoque un troisième moyen pris de la “violation des dispositions de la Convention internationale des droits de l’enfant”; que, selon lui, la décision attaquée “contrevient gravement aux dispositions de la Convention citée et à son esprit, car elle empêche l’enfant de vivre aux côtés de son père et d’être éduquée par celui-ci”; Considérant que la Convention visée au moyen n’est pas directement applicable en droit interne; qu’en outre, pour les raisons indiquées lors de l’examen du premier moyen, ce soutènement ne peut être accueilli; que le requérant n’est pas fondé à reprocher à la partie adverse d’avoir contrevenu aux intérêts d’un enfant dont il lui a laissé ignorer l’existence; que le moyen n’est pas sérieux.”
As translated by CRIN: “The claimant brings forth a third argument based on the “violation of the provisions of the CRC”. According to him, the contested decision “grievously contradicts with the provisions of the CRC and its spirit, as it stops the child from living with and being raised by her father”. The CRC is however not directly applicable in domestic law. Moreover, for the reasons invoked during the examination of the first argument, this argument cannot be accepted. The claimant cannot accuse the defendant of having contravened with a child’s interests when he never informed the defendant of the child’s existence.”
CRIN comments: CRIN believes that this decision is inconsistent with the CRC. Under Article 4 of the Convention, States have an obligation to implement the rights contained in the CRC, which, according to the Committee on the Rights of the Child, includes the direct enforceability of the provisions of the CRC. Moreover, the decision puts in jeopardy the child’s right to live with her father under by Article 9 of the Convention which can only be limited in the best interests of the child.
Citation: Conseil d’Etat, section d’administration, arrêt n° 60.010, 11 juin 1996
Link to Full Judgment: Judgement available upon request.