leidenchildren'srightsobservatory

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Case Note 2021/9

Communication 115/2020 A.E.A. v. Spain

Violation of the right to education of an undocumented child living in Melilla

Details

Outline of the Substantive Issues

This communication was brought against Spain, on the 8th of March, 2020, on behalf of A.E.A. by his mother (‘the author’), who was represented by legal counsel. A.E.A. is a Moroccan national born on 21 November 2012 in the autonomous city of Melilla (Spain) on the Mediterranean coast of Morocco, where he is residing. A.E.A. was not able to enter the Spanish public education system, even though he had reached the age of compulsory schooling. The claim alleged violations of the rights contained in Article 2 (non-discrimination), Article 3(1) (the best interests of the child), Article 14 (freedom of thought, conscience and religion), Article 28 (the right to education) and Article 29 (the aims of education) of the Convention on the Rights of the Child (CRC).

The author applied to enrol A.E.A. at the public school in Melilla (on 8 May 2019) according to the regular procedure established by the domestic legislation of the State Party. Following the lack of response from the national administration and the starting of the new school year, the author filed a complaint with the Administrative Court in order to demand the enrolment of her son. The author requested the adoption of a precautionary measure to enrol her son at school. To support her complaint, she submitted various documents proving the child’s actual residence in Spain, including his birth certificate, health insurance card, vaccination card, passport, a copy of a gas supply contract in his father’s name and of a theft report filed by his father. The complaint and request were turned down by the Administrative Court. This led the author to appeal the decision to the High Court of Justice of Malaga (Tribunal Superior de Justicia).

While the case was still pending before the High Court of Justice, the author submitted a communication before the Committee on the Rights of the Child (Committee) through the Optional Protocol to the CRC on a Communications Procedure (CRC OP3). In her complaint, she alleged that excluding A.E.A. from entry into school was discriminatory based upon his origin and his legal residence status. The author furthermore argued that this situation negatively affected the proper development of A.E.A.’s personality, talents and abilities and violated A.E.A.’s and his parents’ right to freedom of religion, as he was ultimately enrolled at an education centre for Moroccan Muslim students, which is not officially recognised. The author also argued that the refusal to enrol A.E.A. in school is incomprehensible given that one of his sisters has been enrolled in the Spanish public school system since the 2018/2019 school year.

Procedural Issues

Exercising the possibility to transmit a request for interim measures (Article 6 of CRC OP3), the Working Group on Communications acting on behalf of the Committee requested four times (on 10 March 2020, 22 April 2020, 12 June 2020 and 23 September 2020) that Spain admit A.E.A to primary school immediately while the case was under consideration. However, this was denied by the State Party. In its comment of 11 May 2020, Spain indicated that the Committee did not specify the possibility of irreparable harm to the child if these measures were not taken. Spain argued that if A.E.A. was enrolled in a school and then asked to leave if the measures were lifted, the harm might have been greater than if A.E.A.’s schooling was delayed.

In relation to admissibility, Spain argued that the claim was inadmissible on account of the fact that the author did not exhaust domestic remedies. In particular, Spain noted that the administrative procedure was still pending when the communication was submitted to the Committee. The Committee saw no reason to declare the communication inadmissible for non-exhaustion of domestic remedies. In its reasoning, the Committee noted the author’s argument that the remedies provided were ineffective given the aim of the claim (school enrolment) and that no decision had been made for almost two years after the application for school enrolment. Accordingly, the Committee found that the author had sufficient reason to not exhaust national remedies in accordance with Article 7(e) CRC OP3, which does not require domestic remedies to be exhausted if they are ineffective or unreasonably prolonged.

Findings

On the merits of the communication, Spain was of the view that the child was not enrolled in school, not because he was categorised as irregular resident, but because no proof of residence had been provided as required by the legislation in force. Spain also pointed out that there is no obligation on States to educate someone who cannot prove his or her actual residence in the territory of that state.

The Committee examined the merits of the alleged violations of Articles 2, 3 and 28 of the CRC. It excluded Article 14 (the right to freedom of thought) from examination, because the claimant never raised this claim during the domestic proceedings. Article 29 (relating to the purpose of education) was also excluded because the claimant had not provided sufficient evidence concerning this allegation.

With respect to Article 28 the Committee found that Spain had violated A.E.A.’s right to education by failing to take prompt action to verify his residence and admit him to school, even after a visit from the police on November 2020 verified the residence of the child and his family. In fact, despite this verification, the competent educational authority continued to ask for confirmation of A.E.A.’s legal residence status. The Committee noted that “although all children’s right to education, regardless of their administrative status, is recognized under [Spanish] domestic law, the competent local education authorities are, in practice, using lawful residence as a prerequisite for A.E.A. to gain access to the education system” (para. 12.5). It was only on 16 March 2021, after the order from the Spanish Ministry of Education and Vocational Training, that A.E.A. was allowed to enrol in school.

With respect to Article 2 the Committee examined whether the failure to enrol A.E.A. in school for almost two years constituted discriminatory treatment. According to the Committee, as also mentioned in its General Comment No. 1 (para. 10), discrimination on the basis of grounds such as race or national, ethnic or social origin may undermine or even destroy the child’s ability to benefit from educational opportunities. In this case, the Committee noted that A.E.A. suffered from discrimination based on his irregular administrative status and, consequently, his national origin. This discrimination was direct because A.E.A. was treated differently from other children, to his disadvantage. In addition, the Committee noted that “although the State party itself recognizes that those living on its soil have an unrestricted right to education, the author has shown that, despite the National Police’s official confirmation of her son’s actual residence in Melilla, the local authorities still refused to enrol him” (para. 12.8).

This resulted in de facto differentiation for which Spain could not provide a justification. The Committee therefore held that A.E.A’s right to non-discrimination had been violated under Article 2 read in conjunction with Article 28.

In relation to Article 3, the Committee recalled that when administrative authorities take decisions regarding the specific situation of a child, they must be assessed and guided by the best interests of the child in question. This includes decisions concerning a child’s education (CRC General Comment 14, para. 30). The Committee noted in this case that “[Spain] has not provided information to explain how the best interests of A.E.A. were treated as a consideration in the judicial and administrative proceedings in which he was involved in order to secure his provisional enrolment in school” (para. 12.9). The Committee also observed, that the Melilla Administrative Court No. 2, “gave preference to the general and unsubstantiated harm to all children attending the school in which A.E.A. would be enrolled if admitted, considering them greater than the benefits that A.E.A. would gain if he were admitted to the educational system on a provisional basis” (para. 12.9).

In doing so, the Court not only made the right to education subject to discretion beyond the verification of actual residence, it also failed to look at the specific facts of the case and the personal circumstances of the child contributing to the Committee’s conclusion that the best interests of the A.E.A. were not a primary consideration in the proceedings related to his enrolment. Spain therefore violated Article 3 (1) of the CRC.

Lastly, the Committee considered that Spain’s failure to adopt the interim measures requested was itself a violation of Article 6 CRC OP3. Spain argued that interim measures only oblige States to give urgent consideration to their request for adoption. The Committee recalled that these measures are intended to prevent irreparable damage and to ensure the effectiveness of the communication procedure. Moreover, the Committee argued that the ratification of the CRC OP3 entails an international legal obligation for States to comply with interim measures issued under Article 6. Consequently, it found that failure to comply with the request for interim measures constituted a breach of Article 6.

The Committee, ultimately, urged Spain to compensate A.E.A. and to adopt measures to bring him up to date in class. Finally, it was held that Spain is obliged to take all necessary measures to prevent similar violations from recurring. The Committee ordered Spain to present the measures taken to implement the decision within 180 days and also to include information on these measures in its reporting to the Committee under Article 44 CRC.

Commentary

Since the entry into force of the CRC OP3 in 2014, this is the second communication dealt with by the Committee that concerns the refusal to enrol a child of Moroccan origin and a born resident in Melilla into the Spanish education system. A previous case (see Commentary by Liefaard and Van Dijck on N.S. v. Spain) was discontinued because the State Party followed up on the interim measures and accepted the child’s enrolment in school. As Spain did not apply the interim measures in this case, this is the first time that the Committee has decided on the merits of a case concerning the right to education of children of Moroccan origin who grow up in the Spanish enclave of Melilla.

Melilla is a city with a historical legacy of immigration and is known to the Committee for its practices of automatic expulsions of unaccompanied children at the city’s border (see Commentary by Morlachetti on D.D. v. Spain). The city is also known for the numerous children facing barriers in enrol into public schools. In the present case, the Committee raised its concerns about the situation of these children, mostly of Moroccan origin, who belong to undocumented families who have been living in the city for decades. Several local organisations have already reported and denounced the situation asking the Spanish Ministry of Education for the schooling of these children.

The right to education is universally accepted as a basic and fundamental human right. It is recognised by several international and regional instruments such as the CRC (Articles 28 and 29), the International Covenant on Economic, Social and Cultural Rights (1966) (Articles 13 and 14), the European Convention on Human Rights (1950) (Article 2 of Protocol No. 1 to the ECHR). The right to education is a multifaceted right (see Eugeen Verhellen, 1993) that revolves around the right to access quality education. The implementation of the right to education is broadly promoted by the United Nations, among others through UNESCO and the Special Rapporteur on the right to education, who have a specific mandate to foster the realisation of the right to education and the strengthening of education systems worldwide. In addition, the Committee’s first General Comment on the aims of education (2001) is meant to support the implementation of Article 28 and 29 of the CRC.

This case shows that undocumented children are confronted with a bureaucratic barrier requiring a residence permit to be registered in the city of Melilla and thus to access the school. The Committee’s reasoning regarding the lack of access to the school system is in line with the common interpretation of Article 28 according to which education should be provided by States Parties without discrimination, to every child within their jurisdiction (CRC General Comment 6 para. 41). The child’s legal status does not make that any different. Although this case focuses on limitations at the level of access to the education system, as the claim under Article 29 CRC was excluded from examination, it should not be forgotten that there are numerous other difficulties that undocumented children face during their schooling process (such as fees, language barriers, etc.).

It is the responsibility of governments to ensure the access and the enjoyment of the right to education for all children without exception. To register in Spanish schools, a number of documents must be produced. In this case, the various documents provided by the author to prove A.E.A.’s residence in Melilla gave rise to a positive obligation on Spain to confirm the child’s actual residence. The Committee held the view that, as a general rule, the burden of proof lies with the national authorities. Moreover, it held that confirmation of residence by the local, administrative and judicial authorities must take place effectively and swiftly. The Committee concluded that 18 months to confirm the child’s residence cannot be considered a ‘reasonable time’ to fulfil this obligation.

Furthermore, while the Committee recognised that Spain has adopted policies to ensure that no school-age child is deprived of the right to education on the basis of nationality or administrative status, it also observed that all children living in Melilla in an irregular administrative situation face obstacles in attending school. It seems, therefore, that the Committee is reminding Spain, and in fact us all, that children’s rights are not just abstract ideas but must be translated into reality by concrete actions on the part of States and other authorities in a non-discriminatory way. Accordingly, in this case, Spain had the responsibility to implement its relevant legislation, remove administrative barriers standing in the way of the right to access quality education and its full enjoyment.

The Committee’s reasoning confirmed and echoed the content of the two General Comments drafted jointly with the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (No. 3 of the CMW Committee and No. 22 of the CRC Committee; No. 4 of the CMW Committee and No. 23 of the CRC Committee). The two documents deal with the general principles and obligations of States regarding the human rights of children in the context of international migration. The first General Comment, among other things, focuses on States’ obligations in terms of access to employment, health care, education and vocational training. In particular, it highlights that States must guarantee the same treatment as its nationals, removing barriers to the effective exercise of these rights and promoting the full integration of migrant children (CRC and CMW General Comment 22 and 3 (2017) para. 22). In the second General Comment, the two Committees recommend specifically that States rapidly reform regulations and practices that prevent migrant children, especially undocumented children, or children of migrant workers in an irregular situation from registering in schools and educational institutions (CRC and CMW General Comment 23 and 4 (2017) para. 60). By referring to these two General Comments, the Committee reiterated that States must act ‘rapidly’ to prevent legal or administrative restrictions from limiting access to education for undocumented children.

Lastly, the Committee considered in this case that the best interests of A.E.A. should have been taken into account before taking the decision that would restrict his right to education, which justified the conclusion that Article 3(1) of the CRC had been violated as well. In light of this, it is interesting to note that the Committee was clearly concerned with the Spanish government’s failure to take interim measures to prevent irreparable harm to A.E.A. and therefore asked Spain to take proactive measures to help A.E.A. catch up and achieving the same level of schooling as his peers given he had missed almost two years of formal education.

In conclusion, this case makes it very clear that the enjoyment of rights in the field of education is not limited to children who are legal citizens. On the contrary, these rights must be available to all children, including those lacking legal documents or having difficulties in providing the required documentation. The decision sends a strong message to Spain and other States Parties to adopt and implement the necessary legislative and other measures to protect the right to education of undocumented children. In this sense, the work done by the Committee through CRC OP3 is crucial. Yet, it also shows that much remains to be done to secure effective protection of the rights of child migrants and refugees.

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