CASE OF MUBILANZILA MAYEKA AND KANIKI MITUNGA v. BELGIUM
Violations of Art. 3;Violations of Art. 8;Violation of Art. 5-1;No violation of Art. 5-1 (first applicant);Violation of Art. 5-4;No violation of Art. 5-4 (first applicant);Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides;Paul Martens;Sverre Erik Jebens
8. The first applicant was born in 1970 and the second applicant in 1997. They live in Montreal (Canada). 9. The applicants are a mother (“the first applicant”) and her daughter (“the second applicant”). They explained that the first applicant had arrived in Canada on 25 September 2000, where she was granted refugee status on 23 July 2001 and obtained indefinite leave to remain on 11 March 2003. 10. After being granted refugee status, the first applicant asked her brother, K., a Dutch national living in the Netherlands, to collect the second applicant, then five years old, from the Democratic Republic of Congo (“the DRC”), where she was living with her grandmother, and to look after her until she was able to join her. 11. At 7.51 p.m. on 17 August 2002 K. arrived at Brussels National Airport with the second applicant. He did not have the necessary travel and immigration papers for his niece or documents to show that he had parental authority and so he tried, unsuccessfully, to persuade the immigration authorities that the second applicant was his daughter. He explained to the Belgian authorities that he had been on a trip to Kinshasa to visit his father’s grave and that the first applicant had asked him to bring the second applicant to Europe in order to join her in Canada. The child had been living with a grandmother who was now too old to look after her and the first applicant’s attempts to bring her to Canada lawfully had failed. 12. On the night of 17 to 18 August 2002 the federal police telephoned the first applicant to inform her of the situation and to give her a telephone number where she could ring her daughter. The first applicant explained that she had made an application to the Canadian authorities on behalf of her daughter. 13. On 18 August 2002 the second applicant was refused leave to enter Belgium and directions were made for her removal on the ground that she did not have the documents required by the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980. On the same day directions were issued for her to be held in a designated place at the border in accordance with section 74/5 of that Act. Pursuant to that decision the second applicant was detained in Transit Centre no. 127. Her uncle returned to the Netherlands. On the same day a lawyer was appointed by the Belgian authorities to assist the applicant and he applied for her to be granted refugee status. 14. On 19 August 2002 the Belgian authorities contacted the immigration department at the Canadian embassy in The Hague to request information on the first applicant’s immigration status in Canada. The immigration department informed them that the first applicant had applied for asylum and indefinite leave to remain in Canada. However, the application for asylum made no mention of the second applicant and so did not extend to her. In the interim, the first applicant lodged an application in Canada for a visa for her daughter. 15. On 20 August 2002 a lawyer, Mr Ma., informed the authorities that he had been instructed to replace the lawyer initially assigned to the second applicant and that he was taking steps to secure leave for the first applicant to bring her daughter to Canada. 16. On 22 August 2002 the Aliens Office enquired informally of the Dutch authorities whether they would be willing to take over the second applicant’s request for asylum under the Dublin Convention, but they refused. It also asked K. to furnish the addresses of the members of the family in Kinshasa. 17. In a letter to Transit Centre no. 127 dated 23 August 2002, the lawyer thanked the staff at the centre for the friendly welcome they had given to the second applicant and the care with which they had attended to her needs. 18. On 26 August 2002 the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office by e-mail of the first applicant’s former address in Kinshasa and her parents’ address there. 19. On 27 August 2002 the second applicant’s request for asylum was declared inadmissible by the Aliens Office, which refused her leave to enter and gave directions for her removal. The decision stated that she had a right of appeal against the refusal to the Commissioner-General for Refugees and Stateless Persons under the expedited procedure and could apply within thirty days to the Conseil d’Etat for an order setting aside the removal directions. The second applicant lodged an appeal under the expedited procedure with the Commissioner-General for Refugees and Stateless Persons. 20. On 4 September 2002, in reply to an enquiry from the Aliens Office, the Belgian embassy in the DRC advised that the addresses of the members of the applicant’s family in Kinshasa it had obtained on the basis of information provided by the first applicant were incorrect. The applicants denied that K. had given false addresses. 21. In an e-mail of 23 September 2002, the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office that the first applicant had not yet been granted refugee status in Canada. 22. On 25 September 2002 at the hearing of the appeal under the expedited procedure, the Commissioner-General for Refugees and Stateless Persons upheld the refusal of leave to enter after finding that the second applicant’s sole aim had been to join her mother in Canada and clearly could not form a basis for an application for refugee status. He drew the Minister of the Interior’s attention to the fact that, as a minor, the second applicant was entitled to join her family by virtue of Article 10 of the Convention on the Rights of the Child dated 20 November 1989. 23. On 26 September 2002 Mr Ma. sent a letter to the Aliens Office advising it that the first applicant had obtained refugee status in Canada and had applied to the Canadian authorities for a visa for her daughter. He asked the Aliens Office to place the second applicant in the care of foster parents on humanitarian grounds in view of her age and position until such time as the Canadian authorities had granted her leave to enter. He added that Ms M., an 18-year-old Belgian national, would make a suitable foster parent. He explained that although the child was being well treated, she was very isolated at the centre and at risk of psychological damage as a result of being detained with adult foreign nationals whom she did not know. The Aid to Young People in the French Community Department, from whom Mr Ma. had sought assistance, supported the proposal. No reply was received to the request. From information in the case file it would appear that the Aliens Office dismissed the idea on the grounds that it would place the second applicant at risk, as a warrant had been issued in 1998 for the arrest of Ms M.’s father on suspicion of sexual offences against minors and he lived in the same town as Ms M., albeit at a different address. The Aliens Office also considered that there was a very real danger that the child would be taken away by her uncle. 24. In October 2002 the Aliens Office contacted the Office of the United Nations High Commissioner for Refugees (UNHCR), the Red Cross and the Belgian embassy in Kinshasa. With the embassy’s help it was able, on the basis of K.’s statements, to identify and subsequently locate a member of the second applicant’s family, namely her maternal uncle, B. (a student living on a university campus with five other people in what the embassy described as suitable accommodation and who, according to the applicants, was the sole member of the family still living in the DRC). An official from the Belgian embassy in Kinshasa went to B.’s home and explained the situation to him, but B. told him that he did not have the means to look after the child. 25. On 9 October 2002 the second applicant’s lawyer lodged an application for her release with the chambre du conseil of the Brussels Court of First Instance under section 74/5, paragraph 1, of the Law of 15 December 1980. In the application, he sought an order setting aside the removal directions of 27 August 2002 and an order for the second applicant’s release and placement with Ms M. acting as a foster parent or, failing that, with an institute for young children. In the interim, he also contacted the UNHCR, which made enquiries of the family in Kinshasa from which it emerged that no one was prepared to look after the child. 26. On 10 October 2002 the Belgian authorities booked a seat on a flight on 17 October 2002 with the same airline as the second applicant had flown with on the outward journey (they cited its obligation under section 74/4 of the Law of 15 December 1980 to transport at its own cost anyone not in possession of the requisite travel papers or who had been removed on lawful grounds to the country from which he had come or any other country prepared to accept him). The UNHCR, Aid to Young People in the French Community Department and the Belgian embassy in Kinshasa were informed. 27. On 11 October 2002 Brussels Crown Counsel informed the Aliens Office of the second applicant’s application and requested the case file, which the Aliens Office supplied on 14 October 2002. 28. According to the Government, B. was informed on 12 October 2002 that his niece would be arriving at 5.45 p.m. on 17 October. 29. In a letter of 15 October 2002, the Aliens Office advised Crown Counsel of its views on the application for the second applicant’s release: “... the enquiries have enabled the person concerned’s family to be located in Kinshasa. In view of the positive results of the enquiries as a whole, a flight has already been arranged for Thursday 17 October 2002. The child will be met at Kinshasa by her family. A representative from our embassy will also be present. Lastly, we would note that the sole responsibility for the length of the applicant’s detention lies with her uncle, who has been uncooperative and has studiously avoided giving the Aliens Office the family’s address. Accordingly, in the child’s own interest, she should remain in detention until Thursday 17 October 2002, when she can be returned to her own family in Kinshasa.” On the same day, after receiving confirmation from the Aliens Office that the child was to be removed, the Belgian embassy official in Kinshasa informed B. in the following letter, which was sent by recorded delivery: “Dear Sir, I wish to confirm the message which the embassy has received from the Department in Brussels, namely, the return of your niece Mubilanzila Tabitha to Kinshasa (N’Djili) arriving on the Hewa Bora flight at 5.45 p.m. on Thursday 17 October 2002. Yours faithfully, ...” 30. On 16 October 2002 the chambre du conseil of the Brussels Court of First Instance held that the second applicant’s detention was incompatible with Article 3 §§ 1 and 2 of the Convention on the Rights of the Child and ordered her immediate release. Noting that it had no jurisdiction to authorise her placement in a foster home or an institution, it held that the application was well-founded in part. Its decision was served on the director of Transit Centre no. 127 that same day. Crown Counsel, who had the right to appeal against that decision within twenty-four hours, informed the director of the Centre by fax the same day that he was reserving his decision whether or not to appeal. On the same day the UNHCR’s representative in Brussels sent a fax to the Aliens Office requesting permission for the second applicant to remain in Belgium while her application for a Canadian visa was being processed. It drew the Office’s attention to the fact that there did not appear to be an adult in Kinshasa who was able and willing to look after the second applicant, since, according to the information in its possession, B. was still a student. It added that the first applicant had had refugee status in Canada since 23 July 2001, that the second applicant’s father had disappeared in August 2000 and that her twin sister had been taken to Congo-Brazzaville four months earlier. 31. On 17 October 2002 the second applicant was deported to the DRC. She was accompanied by a social worker from Transit Centre no. 127 who placed her in the care of the police at the airport. On board the aircraft she was looked after by an air hostess who had been specifically assigned to accompany her by the chief executive of the airline. The second applicant travelled with three Congolese adults who were also being deported. There were no members of her family waiting for her when she arrived. The Government explained that after considerable efforts the embassy official had obtained B.’s agreement to come to the airport to meet his niece. However, he had reneged on his promise at the last minute. 32. The parties have not formally established whether or not a member of the Belgian embassy was at the airport, as stated in the Alien Office’s letter of 15 October 2002. The second applicant stayed at the airport until 5.23 p.m. before eventually being collected by Ms T., a secretary at the National Information Agency of the DRC, who offered her accommodation. On the same day the first applicant rang Transit Centre no. 127 and asked to speak to her daughter. She was informed that she was no longer staying at the Centre and advised to contact the Aliens Office for further details, which she did. The Aliens Office did not provide her with any explanation but suggested she speak to the UNHCR, from whom she learnt of her daughter’s deportation to Kinshasa. 33. On 18 October 2002 the official from the Belgian embassy in Kinshasa went to B.’s home, only to discover that he had disappeared. On the same day the Belgian authorities received a message from the Canadian embassy in The Hague informing them that the first applicant had been granted refugee status and indefinite leave to remain in Canada with a work permit in 2002 and was consequently entitled to have her family join her. 34. The second applicant left the DRC on 23 October 2002 following the intervention of the Belgian and Canadian Prime Ministers, with the latter agreeing in principle to authorise the reunification of the family. The second applicant travelled to Paris with Ms T. and from there to Canada the same day on a Canadian visa. During the stopover in Paris, Ms T. and the second applicant were accompanied by two officials from the Belgian embassy. The journey was paid for by the Belgian authorities. The case had attracted considerable attention from the press in the meantime. 35. On 25 October 2002 the airline which had flown the second applicant back to Kinshasa informed the Aliens Office that she had not travelled alone, but with four other aliens who were also being removed. It said that it had arranged for an air hostess to look after her until she was handed over to the authorities in Kinshasa. 36. On 29 October 2002 the first applicant applied to the Canadian authorities for a visa permitting family reunification. 37. At the request of the Aliens Office, the director of Transit Centre no. 127 described the second applicant’s living conditions at the centre in a letter of 23 November 2004. He explained that she had been looked after by two women who were themselves mothers, that she had played with other children, that her uncle and mother had telephoned her nearly every day and that she had been allowed to telephone them free of charge under the supervision of a team of social workers; he added that her lawyer had paid her a number of visits and had brought her telephone cards, confectionary and money, that she had often played outdoors, had watched large numbers of videos, done drawings and arithmetic and had been comforted if she showed any signs of distress after telephone calls from her family. The director also explained that during the removal procedure the second applicant had been accompanied to the embarkation area (more precisely, the federal police checkpoint) by a social worker and that the entire staff at Transit Centre no. 127 were concerned about the welfare of children, particularly unaccompanied minors. “Administrative decisions may give rise to an appeal under the expedited procedure, an application to reopen the proceedings, a request for security measures to be lifted, an application to an administrative court to have the decision set aside or an appeal to an ordinary court in accordance with the following provisions. No summary application for an interim order under Article 584 of the Judicature Code will lie against an administrative decision taken pursuant to sections 3, 7, 11, 19, Part II, Chapter II, and Part III, Chapter I bis. ...” “Aliens against whom a measure depriving them of their liberty has been taken pursuant to sections 7, 25, 27, 29, second paragraph, 51/5(3), fourth paragraph, 52 bis, fourth paragraph, 54, 63/5, third paragraph, 67 and 74/6 may appeal against that measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they reside in the Kingdom or the area in which they have been found. Aliens held in a designated place at the border pursuant to section 74/5 may appeal against the measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they are being held. They may renew the appeal referred to in the preceding paragraphs at monthly intervals.” “The chambre du conseil shall deliver its decision within five working days after the date the appeal is lodged after hearing the submissions of the alien or of his or her counsel and the opinion of Crown Counsel. If the case has been referred to it by the Minister in accordance with section 74, the chambre du conseil must hear submissions from the Minister, his or her delegate or his or her counsel. If it fails to deliver its decision within the time allowed, the alien shall be released. The chambre du conseil shall review the legality of the detention and of the removal directions but shall have no power to review their reasonableness. An appeal shall lie against orders of the chambre du conseil by the alien, Crown Counsel and, in the circumstances set out in section 74, the Minister or his or her delegate. The procedure shall be the same as that applicable under the statutory provisions on pre-trial detention, with the exception of the provisions relating to arrest warrants, investigating judges, prohibitions on communications, release on licence or on bail, and the right to inspect the administrative file. Counsel for the alien may consult the case file at the registry of the relevant court during the two working days preceding the hearing. The registrar shall notify counsel of the decision by registered letter.” “If the chambre du conseil decides that the alien is not to remain in custody, he or she shall be released as soon as the decision becomes final. The Minister may order the alien to reside in a designated place either until the removal directions have been carried out or until his or her appeal has been decided.” “If the Minister decides to prolong the alien’s detention or to keep him or her under arrest pursuant to section 7, paragraph 5, section 25, paragraph 5, section 29, paragraph 3, section 74/5(3), or section 74/6(2), he or she must apply within five working days of that decision to the chambre du conseil with jurisdiction for the area in which the alien is resident in the Kingdom or was found to enable it to determine whether the decision is lawful. If no application is made to the chambre du conseil within that period, the alien shall be released. The remainder of the procedure shall be as stated in sections 72 and 73.” “§ 1. Any public or private carrier bringing passengers into the Kingdom who are not in possession of the documents required by section 2 or who come within any of the other categories referred to in section 3 shall transport or arrange for the transport of such passengers without delay to the country from which they have come or to any other country prepared to accept them. § 2. Any public or private carrier which has brought passengers into the Kingdom will also be required to remove them if: (a) the carrier that was due to take them to their country of destination refuses to allow them to embark; or (b) the authorities in the State of destination refuse them leave to enter and send them back to the Kingdom and access to the Kingdom is refused because they do not possess the documents required by section 2 or they fall within any of the other categories referred to in section 3. § 3. If the passengers do not possess the documents required by section 2 and their immediate removal is not possible, the public or private carrier shall be jointly liable with the passengers for the costs of the passengers’ accommodation and stay and any medical expenses they incur. ...” “§ 1. The following persons may be held in a designated place at the border pending the grant or refusal of leave to enter the Kingdom or their removal from the territory: 1o aliens who, pursuant to the provisions of this Act, are liable to be refused entry by the immigration authorities; 2o aliens who attempt to enter the Kingdom without satisfying the conditions set out in section 2, who claim to be refugees and request refugee status at the border. § 2. The Crown may designate other places within the Kingdom which will be assimilated to the places referred to in § 1. Aliens held in such other places shall not be deemed to have been given leave to enter the Kingdom. § 3. Detention in a designated place at the border may not exceed two months. The Minister or his or her delegate may however prolong the detention of an alien referred to in § 1 for two-month periods provided: 1o the alien is the subject of enforceable removal directions, an enforceable decision to refuse entry or an enforceable decision upholding the refusal of entry; and 2o the steps necessary to remove the alien are taken within seven working days of the decision or measure referred to in 1o and are prosecuted with all due diligence and the alien’s physical removal within a reasonable period remains possible. After one extension has been granted, the decision referred to in the preceding paragraph may only be taken by the Minister. The total length of detention shall under no circumstances exceed five months. If the preservation of law and order or national security so demands, aliens may be held for further successive one-month periods after the time-limit referred to in the preceding paragraph has expired, provided that the total length of their detention shall not on that account exceed eight months. § 4. The following may enter the Kingdom: 1o aliens referred to in § 1 against whom no decision or enforceable measure referred to in § 3, paragraph 1, 1o has been taken; 2o aliens referred to in § 1 against whom an enforceable decision or measure referred to in § 3, paragraph 1, 1o has been taken but in respect of whom the Minister or his or her delegate has not extended the period at the end of the two-month period or of any extension thereof; 3o aliens referred to in § 1 who have been held for a total period of five or eight months respectively. ...” “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.” “1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. ...” “1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent intergovernmental organisations or non-governmental organisations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.” “States Parties shall ensure that: ... (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; ...” 40. In its “Concluding observations of the Committee on the Rights of the Child: Belgium” of 13 June 2002, the Committee on the Rights of the Child made the following recommendation to Belgium: “28. ... (a) Expedite efforts to establish special reception centres for unaccompanied minors, with special attention to those who are victims of trafficking and/or sexual exploitation; (b) Ensure that the stay in those centres is for the shortest time possible and that access to education and health is guaranteed during and after the stay in the reception centres; (c) Approve as soon as possible the draft law on the creation of a guardianship service, in order to ensure the appointment of a guardian for an unaccompanied minor from the beginning of the asylum process and thereafter as long as necessary, and make sure that this service is fully independent, allowing it to take any action it considers to be in the best interests of this minor; (d) Ensure unaccompanied minors are informed of their rights and have access to legal representation in the asylum process; (e) Improve cooperation and exchange of information among all the actors involved, including the Aliens Office and other relevant authorities, police services, tribunals, reception centres and NGOs; (f) Ensure that, if family reunification is carried out, it is done in the best interests of the child; (g) Expand and improve follow-up of returned unaccompanied minors.”