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Case Note 2021/4

Communication 51/2018: A.B. v. Finland

The risk of a child being subjected to irreparable (psychological) harm when returned to an environment hostile to LGBTI families and a deficient best interests consideration in asylum proceedings

Details

Introduction

On 5 February 2021, the CRC Committee issued its first decision concerning Finland. The case is also the first by UN human rights treaty bodies concerning LGBTI families in asylum context (CRIN, 2021). The case revolves around two interrelated questions: the risk of a child being subjected to irreparable (psychological) harm when returned to an environment hostile to LGBTI families, and a deficient best interests consideration in asylum proceedings.

Outline of the Substantive Issues

The author of the communication, A.B., is a Russian national born in 2010. He lived in Russia with his biological mother A.S. and the mother’s female partner V.B. (the parents), also Russian nationals, who concealed their relationship because they feared discrimination and persecution. As explained in the communication, the situation of LGBTI people in Russia has worsened with the introduction of ‘gay propaganda laws’ and harassment and violence towards sexual minorities. After A.B. talked about his family at the kindergarten, the staff started to treat him aggressively. A.B. switched to a new kindergarten where the staff yelled at him, hit him and did not prevent him from eating food to which he was allergic. He was also severely bullied by other children. A.B.’s parents reported the bullying to staff, who did nothing. A.B. started to express anxiousness and suicidal thoughts. The family fled to Finland in 2015 and filed requests for asylum and humanitarian residence permits on compassionate grounds. Meanwhile, A.B.’s situation improved: he made friends in preschool, and A.S. and V.B. no longer needed to conceal their relationship.

On 19 July 2016, the Finnish Immigration Service rejected the family’s applications. A.S. and V.B. were interviewed three times in the context of the asylum proceedings but A.B., who turned six just before the Immigration Service’s decision, was not heard. The Immigration Service accepted that the parents had experienced discrimination but held that the treatment did not amount to persecution, nor did it think that their rights would be at risk of being severely violated if they returned, given they had not been victims of such rights violations in the past. Concerning A.B., the Immigration Service did not accept that the mother’s sexual orientation had been the sole reason for the violence and bullying of the child and further held that the bullying had not been severe enough to be considered persecution. Moreover, the Immigration Service held that as the parents’ residence permits were refused and living with parents is in general in the best interests of the child, refusing A.B.’s residence permit was not against his best interests.

The family appealed to the Helsinki Administrative Court, claiming that the Immigration Service had failed to justify the absence of a risk of future persecution and to take A.B.’s best interests into account. The Administrative Court confirmed the decision of the Immigration Service, after which the family applied for leave to appeal to the Supreme Administrative Court, arguing that the Immigration Service and the Administrative Court had failed to assess A.B.’s best interests. The Supreme Administrative Court rejected the appeal on 4 July 2017, after which the family returned to Russia.

A.B. alleged before the CRC Committee a violation of Article 3 of the Convention on the Rights of the Child (‘CRC’) (best interests of the child), read in conjunction with Article 22 (the rights of refugee children). According to the communication, his best interests had been assessed superficially and without taking into account the psychological impact of his bullying and his safety as a child of an LGBTI family. He also alleged violations of articles 2 (non-discrimination), 13 (freedom of expression), 14 (freedom of thought), 16 (protection of privacy), 17 (access to a diversity of mass media sources), 19 (protection from abuse) and 29 (the aims of education) CRC, describing different ways in which the hostile attitude of Russian society towards LGBTI people had an impact on his rights.

Procedural Issues

Finland submitted that the communication should be declared inadmissible because A.B.’s mother had filed a complaint to the European Court of Human Rights (ECtHR) concerning the same facts (see article 7(d) of the Optional Protocol on a communications procedure, which prevents examining substantially same applications), which was declared inadmissible because of a failure to comply with the Rules of the Court. The author claimed that the matter was not substantially the same as the ECtHR’s inadmissibility decision was based on a failure to meet the procedural conditions and not on the inadmissibility of the application as such. Furthermore, the ECtHR application concerned the mother’s rights and not the child’s. The Committee accepted the author’s views.

Moreover, the State party argued that the claims regarding articles 2, 13, 14, 16, 17, 19 and 29 CRC should be declared inadmissible. The Committee accepted this argument in relation to all of these articles other than Article 19 CRC and considered that the claims concerning the author’s treatment in Russia were insufficiently substantiated as alleged violations of the State party’s non-refoulement obligations. However, the Committee held that the claims under Article 19 which related to a risk of being subjected to renewed maltreatment were sufficiently substantiated. Claims under articles 3 and 22 CRC were equally declared admissible.

Another interesting procedural issue is the author’s claim that the Immigration Service should have heard him in the asylum process. The State party argued that this claim was inadmissible for non-exhaustion of domestic remedies as the argument had not been made in the domestic proceedings. The family had requested an oral hearing before the Administrative Court but not explicitly asked for the child to be heard. The author commented that this claim was not presented as a self-standing claim but rather to clarify the content of the domestic proceedings. The CRC Committee did not explicitly comment on the admissibility of the claim concerning hearing A.B. However, a central element of the Committee’s finding of a violation of Article 3 was the failure to hear him, which shows that it paid attention to the procedure even if the point had not been explicitly raised in the domestic proceedings.

Finally, several non-governmental organisations submitted a third-party intervention providing information about the difficult situation of LGBTI families in Russia, referencing the CRC Committee’s earlier guidelines concerning best interests assessment, and describing the detrimental impact of having to conceal one’s parents’ sexual orientation (Decision, paras. 8.1-8.6).

Findings

The Committee found a violation of non-refoulement obligations under Article 19 because the domestic authorities failed to properly consider the real risk of serious violation of the author’s rights upon returning the family to Russia. The Committee held that a risk of irreparable harm was foreseeable in light of the past discrimination and bullying. It paid particular attention to ‘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’ (Decision, para. 12.5).

Moreover, the Committee found a violation of Article 3 because the domestic authorities had failed to adequately consider A.B.’s best interests when assessing his asylum request based on his mother’s sexual orientation. The assessment was not specific enough and A.B. was not heard: ‘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’ (Decision, para. 12.4).

Finally, the Committee held that the Finnish State party is obliged to provide A.B. with effective reparation, including adequate compensation. Finland is ‘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’ (Decision, para. 14). To this end, the Committee expects the State party to provide information about the steps taken.

Commentary

A child-sensitive interpretation of non-refoulement

Non-refoulement is a central principle of refugee law and human rights law preventing the return of anyone to circumstances where they would be exposed to a serious risk of irreversible harm. An act which is not considered to amount to persecution in the meaning of the Refugee Convention – which is required for an asylum-seeker to qualify for refugee status – can still breach the prohibition of refoulement. Previous research has noted the difficulties of asylum-seeking children to qualify for refugee status (see eg Jason Pobjoy, 2017), which underlines the importance of non-refoulement to children. By definition, non-refoulement is not restricted to any particular rights. In practice, however, human rights treaty bodies usually interpret it to cover violations of the prohibition of torture and inhuman and degrading treatment (protected, for example, in Article 3 ECHR). The severity of a potential violation is essential, and the threshold is often set high.

Unlike in its previous cases addressing non-refoulement, the Committee in this case did not apply the concepts of reasonable doubts and principle of precaution when assessing the risk of irreparable harm (see Commentary by Klaassen and Rodrigues on W.M.C. v. Denmark). Instead, it sought other ways to interpret non-refoulement in a child-sensitive manner: it took A.B.’s young age into account when determining whether a real risk of irreparable harm exists upon return to Russia. Moreover, the Committee held that psychological harm can constitute treatment that gives rise to non-refoulement obligations and paid attention to the possibly permanent impact of constant bullying and stigmatization of the child. The Committee has previously found a breach of non-refoulement obligations under Article 19, but that case concerned the risk of physical and not mental violence (see I.A.M. v. Denmark). The finding that returning a child to an environment hostile to LGBTI people could in itself be against non-refoulement is remarkable, as it indicates that factors related to the sexual orientation of parents can contribute to defining the threshold of non-refoulement. Other human rights treaty bodies have also regarded sexual orientation as a ground for applying non-refoulement, although the jurisprudence is not consistent (see eg Erna Kristín Blöndal and Oddný Mjöll Arnardóttir, Oslo Law Review, 2018).

The Committee’s reasoning concerning non-refoulement would have been even stronger if the Committee had explicitly connected its case-specific findings to Article 19 CRC in its consideration of the merits (see Decision paras 12.1-13). One can assume that the Committee made a connection between a violation of Article 19 CRC and a breach of non-refoulement, but more explicit reasoning would contribute to a better understanding of non-refoulement obligations under Article 19 CRC in general.

The importance of an adequate best interests assessment

The Committee found a violation of Article 3 CRC because of the failure of domestic authorities to adequately assess A.B.’s best interests. This finding is supported by recent concluding observations of the Human Rights Committee which recommended Finland to ‘[s]tep up its efforts to reinforce the rights of children entering the country, particularly unaccompanied children, taking into account the need to respect their best interests’ (Human Rights Committee, Concluding observations on the seventh periodic report of Finland, 2021, para. 33(a)).

The Committee took a procedural approach to Article 3 CRC: it assessed the quality of reasoning of domestic authorities and did not accept that a general reference would satisfy the requirements of Article 3 CRC. The communication, as well, is essentially based on the argument that the Immigration Service’s best interests assessment was superficial and the courts did not even mention best interests. The CRC Committee has previously stated that one of the functions of Article 3 is a procedural rule (General comment No. 14). I have argued elsewhere that the potential of Article 3 lies in understanding it as a predominantly procedural obligation that obliges courts to review whether the best interests of the child have been properly considered, the grounds of the assessment explained and procedural requirements (for example, obtaining the child’s views) followed (Sormunen, Human Rights Law Review, 2020). The substantive assessment would be expressed in terms of the rights of the child.

In this case, the failure to hear A.B. in the asylum process contributed to finding a violation of Article 3 CRC. The case underlines two interesting aspects in this regard. The first is that authorities cannot assume that children’s interests align with those of their parents. The State party argued that if a conflict of interests between the parent and the child is not likely, a hearing is unnecessary, which is a view that the Committee did not share. The second aspect is the obligation to systematically hear young children in asylum proceedings. The case does not provide guidelines on how this would be reached in practice; as the State party noted, A.B. was four years old upon the family’s arrival to Finland and six at the time of the Immigration Service’s decision. Concerns – although not expressly presented in the case – about how young children should be heard in an age-sensitive fashion are legitimate (see, for example, Commentary by Desmet and Lembrechts on V.A. v. Switzerland). However, hearing young children should be the main rule and not an exception. Section 6(2) of the Finnish Aliens Act provides that children at least twelve years old shall be heard ‘unless such hearing is manifestly unnecessary’ and that younger children ‘may also be heard if the child is sufficiently mature to have his or her views taken into account’. The age limit of twelve years seems to have created an assumption that hearing younger children has to be separately justified, which is an interpretation that the Committee contested in A.B in line with its General Comment No. 12. I agree with Eekelaar and Tobin’s view that if a child is not heard, authorities bear a heavy burden to justify why not, not the other way round (John Eekelaar and John Tobin, 2019).

Another interesting aspect of the reasoning related to best interests concerns the order of considering different factors in decision-making. The Committee did not accept the State party’s claim that the outcome was ‘not against the best interests of the child’ when the Immigration Service had first refused the parents’ residence permits and then reasoned that as it was in general in the best interests of children to live with their parents, A.B. could be expelled as well. It is a welcome development that the Committee considers this type of argument problematic: if a decision about the subject matter of a case precedes a best interests assessment, the space left for children’s interests is minimal.

Why not other rights?

Despite these positive remarks, the case raises a familiar question (see Commentary by Desmet & Lembrechts on V.A. v. Switzerland): why did the Committee again focus on Article 3 CRC? The Committee found a violation of articles 19 and 22 CRC in addition to the violation of Article 3 CRC, but the reasoning mostly concerns article 3 CRC and the case does not contain independent argumentation on article 22 CRC.

Admittedly, the focus on Article 3 CRC derives from the communication, which concentrated on arguing why the State party had breached Article 3 read in conjunction with Article 22 CRC and only briefly commented on claims concerning articles 2, 13, 14, 16, 17, 19 and 29 CRC. The Committee declared the claims under these articles (other than 19 CRC) inadmissible as insufficiently substantiated. However, the Committee is arguably not bound to follow the author’s description of the case. The ECtHR, for example, deems itself as the ‘master of the characterisation to be given in law to the facts of the case’ (Scoppola v. Italy [GC], para 54), which means that it can address a case under an article that the applicant did not initially raise. According to established case law, ‘[a] complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on’ (Guerra and others v. Italy, para 44).

The CRC Committee does not yet have an established practice concerning its role in determining which articles it decides a case under. Paying attention to this aspect of the argumentation is crucial as authors of communications are understandably inclined to adopt a strategy that seems likely to succeed. Framing the case under Article 3 has been a successful strategy so far. It is also understandable that the facts of the case as the author describes them have a bearing on the Committee’s characterisation of the case. As is the case with other human rights treaty bodies, however, the Committee has a double role of delivering justice in individual cases and developing more general guidance regarding obligations in the Convention it monitors. It is therefore important to provide guidance regarding substantive CRC articles as independent rights in its reasoning, and not only as elements of a best interests assessment, although the latter is also valuable.

The case at hand clearly has a strong non-discrimination dimension as sexual orientation is a prohibited discrimination ground. The facts of the case illustrate well these aspects that could fall under Article 2 CRC. Another interesting aspect is the claim concerning the right to respect for private life under Article 16 CRC. In my view, the facts of the case would have allowed the Committee to regard claims under these articles as sufficiently substantiated. Moreover, what about Article 12 CRC, the right to respect for the views of the child, which also covers the right to be heard? Or Article 8 CRC protecting the right to preservation of a child’s identity? Upon return to Russia, the author had to conceal his parents’ relationship, which arguably is harmful for one’s identity, especially the developing identity of a child. The author did not raise articles 12 and 8 CRC, but the Committee could still have discussed them.

Conclusion

A.B. v. Finland is an important step towards better recognising that child-specific factors and factors related to sexual orientation are essential in determining the threshold for applying non-refoulement. Moreover, the case stresses the importance of conducting a thorough best interests assessment and systematically hearing children in asylum proceedings.

The case also indicates possible ways to develop future case law. In light of the dominance of Article 3, it would be beneficial to discuss each article separately in the reasoning and think about the Committee’s role deciding which articles it assesses a case under. Moreover, I agree with previous suggestions (see Commentary by Desmet and Lembrechts on V.A. v. Switzerland) that the Committee’s reasoning would benefit from a clearer structure in which general principles and their application to the case are discussed separately. This kind of structural improvements would make the Committee’s substantive contributions clarifying state obligations towards asylum-seeking children even more effective.

Discussions