EDAL - ECtHR - Khan v. France (no. 12267/16), 28 February 2019

ECtHR - Khan v. France (no. 12267/16), 28 February 2019

Country of applicant:	Afghanistan
Court name:	European Court of Human Rights – Fifth Section
Date of decision:	28-02-2019
Citation:	European Court of Human Rights - Khan v. France (no. 12267/16), 28 February 2019

AFFAIRE KHAN c. FRANCE (0.33Mo)

Keywords:

Keywords
Best interest of the child
Unaccompanied minor
Child Specific Considerations
Reception conditions
Material reception conditions
Vulnerable person

Headnote:

The precarious living conditions in Calais and the failure of the French authorities to comply with judicial orders to protect the applicant, in view of his personal circumstances and young age, reach the threshold for a breach of Article 3.

Facts:

The applicant, an Afghan national, had left his country to seek asylum in Europe and arrived in Calais, France, where he remained hoping to reach the United Kingdom.

In November 2015, following pressure from a number of NGOs, the Lille Administrative Court ordered the Pas-de-Calais Prefect to determine the number of unaccompanied minors in distress and to co-operate with the Pas-de-Calais Department in placing them in care. An appeal by the Minister of Interior against that judgment was dismissed.

On February 19, 2016, the Prefect of Pas-de-Calais ordered the evacuation and dismantling of the camp for reasons of health, security and human dignity. Subsequently, NGOs and migrants filed applications with the Lille Administrative Court for the annulment of that decision and order, also requesting interim measures to suspend the evacuation, which were granted. At the same time, a refugee-assisting association lodged an application for a provisional care order on behalf of the applicant with the Children’s Judge, who granted the request. It also requested the appointment of an ad hoc guardian, so that he would be able to file an asylum application. The requests were granted.

Despite the judicial orders, the evacuation plan went through and the southern part of the camp, where the applicant was residing, was demolished. The applicant stated that neither the Pas-de-Calais department nor the prefectural services acted to shelter him; his cabin was destroyed but no alternative accommodation was offered to him; despite the situation and the existing judicial orders, the child welfare services did not place him in care.

The applicant complained before the ECtHR that the authorities’ failure to comply with the orders to provide provisional care amounted to a violation of the duty to protect under Article 3 of the Convention.

Decision & reasoning:

Admissibility

The Government argued that the domestic remedies had not been exhausted but the applicant submitted that this condition only refers to the non-use of an essential remedy. As a request for provisional care was filed with the Children’s Judge and the granted order was immediately enforceable, the domestic remedies had been exhausted.

The Court agreed with the applicant’s submissions and emphasised the authorities’ automatic obligation to protect unaccompanied children under Article 3 ECHR and Articles 2 and 20 of the Convention on the Rights of the Child. Given the particularly difficult conditions the child had found himself in and the NGO’s move to request an order, the Court concluded that the applicant did what could reasonably be expected of him in the light of admissibility requirements.

Merits

The Court began its analysis of Article 3 requirements in the contested context by referring to its Rahimi judgment to reiterate the extreme vulnerability of unaccompanied asylum-seeking children.

The Court heavily relied on the detailed descriptions by French courts and reports, regarding the living conditions in Calais, to confirm that such situations expose minors to multiple dangers. Drawing attention to the applicant’s very young age and the fact that he had been there alone for six months, the Court held that the reported conditions testified to a manifestly unsuitable environment for children and were highly likely to expose the child to inhumane or degrading treatment.

In the absence of care by the authorities and despite the support he was able to find from non-governmental organisations, the applicant lived for six months alone in a state of insecurity and unhygienic conditions. The situation was further aggravated by the evacuation operation and dismantling of the camp, which included the demolition of the minor’s shelter and the general deterioration of the living conditions there.

The French government argued that they had complied with their duties but the applicant himself did not engage with the process and had not actively sought sustainable reception and care in France, failing to appear at the home designated to receive him. The Court, however, stated that the fact that no action was taken before the order of the Children’s Judge is in itself sufficient to question the authorities’ compliance with Article 3. The authorities had never identified the applicant, even though he had been on the site for several months and his particularly young age should have prompted their action. Moreover, the minor’s limited knowledge of French meant that he could not be expected to engage with the authorities on his own initiative.

The Court also observed that the minors’ reluctance to engage with the shelter system was also due to the remoteness of the reception facilities and agreed with the Human Rights Defender’s submission that this reluctance could not justify the inaction of the public authorities, which had an obligation to ensure the minor’s protection according to his individual circumstances. Since children’s protection is clearly the responsibility of the public authorities, the NGOs that voluntarily supported the applicant cannot be accused of inaction in this respect. In this connection, the Court noted the relevant report by the Special Representative of the Secretary General of the Council of Europe on Migration and Refugees and concluded that the means of identification of minors were insufficient; a shortcoming that explains the overall difficulty of child welfare services to locate the applicant.

Taking into account the difficult task of identifying and protecting unaccompanied minors, the Court concluded that the particularly serious circumstances and the failure to comply with the judicial order to protect the applicant, considered together, constituted a breach of the obligations imposed on the respondent State, and that the gravity threshold required by Article 3 of the Convention had been reached.

Outcome:

Application granted; Violation of Article 3.

The applicant was awarded €15,000 in damages.

Follower Cases:

Follower Cases
ECtHR - Sh.D. and others v. Greece, Austria, Croatia, Hungary, Northern Macedonia, Serbia and Slovenia (no. 141165/16)
ECtHR - Sh.D. and others v. Greece, Austria, Croatia, Hungary, Northern Macedonia, Serbia and Slovenia (no. 141165/16)