Outline of the Substantive Issues
These two cases, E.B on behalf of E.H. et al. v. Belgium and K.K. and R.H. on behalf of A.M.K. and S.K. v. Belgium, arise in the context of Belgium’s decision to resume immigration detention of families with children in 2018 (CRC Concluding Observations: Belgium, para. 43(a)), reversing a policy that had been in effect for nearly a decade. (The following year, the Belgian government decided not to continue placing families in immigration detention.) The families in each of these cases had received removal orders and were each detained in a closed centre for families near the Brussels National Airport.
In the first case, an Armenian couple, K.K. and R.H., and their daughters, A.M.K. and S.K., who were born in Belgium and had Belgian nationality, had faced deportation since 2012. The couple had made an unsuccessful request for asylum when they arrived in Belgium, before the birth of their first daughter, and subsequently made several other unsuccessful asylum requests, applications for residence permits on medical grounds, and applications for regularization. The family was apprehended before dawn in early January 2019 and taken to the family detention centre in preparation for deportation.
The family challenged their imminent removal and sought their release from detention on an urgent basis. A child psychiatrist reported that the family’s detention was having an adverse effect on the older daughter’s psychological development and well-being.
In the second case, a Roma woman, E.B., and her four Belgian-born children (E.H., R.B., S.B., and Z.B.) faced expulsion to Serbia. She received four orders to leave the country between 2012 and 2017. In August 2018, authorities apprehended the family early in the morning and placed them in a closed family detention centre. The head of paediatrics at a Brussels hospital found that the children were having trouble eating and sleeping while in the detention centre.
E.B. made numerous petitions and appeals, including asylum applications for her children, all of which were denied by the courts. After the family had been in the closed detention centre for four weeks, the legal maximum, authorities moved them to an open “pre-departure house.” The family left this open facility and found another place to live. The next day, authorities again apprehended them and placed them in a family detention centre.
Each case challenged the children’s detention and imminent deportation.
K.K. and R.H. specifically argued that children should not be deprived of liberty for reasons related to migration (A.M.K. & S.K., para. 3.3); that their children’s detention was not a ‘last resort’ (A.M.K. & S.K., para. 3.4) and was excessively long (para. 3.5); and that the authorities’ decision to detain did not take into account the children’s best interests (para. 3.6). E.B. argued more generally that her children’s detention violated the right to liberty and the right to a remedy (E.H. et al., para. 3.3).
Both families contended that their children faced inadequate detention conditions, including exposure to noise and air pollution and the lack of legal provision for access to paediatricians and mental health professionals (A.M.K. & S.K., para. 3.7; E.H. et al., para. 3.4). In addition, K.K. and R.H. made specific reference to the adverse impact of detention on the children’s rights to education, rest and leisure, and participation in cultural life and the arts (A.M.K. & S.K., para. 3.7).
Each family argued that their children’s deportation to a country they did not know would violate their right to an adequate standard of living. K.K. and R.H. contended that the family’s lack of ties in Armenia would mean that they would have no access to housing or means of subsistence (A.M.K. & S.K., para. 3.8). E.B. pointed to discrimination against Roma in Serbia, arguing that her family was similarly at risk of destitution (E.H. et al., para. 3.5). E.B. also argued that her children’s deportation would violate their right to maintain contact with both parents and would also limit their contact with their paternal grandmother (E.H. et al., para. 3.6).
E.B. and her children returned to Serbia in October 2018 in circumstances that she described as coerced. After their return, the children were not in school and did not have access to health care. (E.H. et al., paras. 6.1, 6.2, 8.3.) The separate opinion of two CRC Committee members also notes that the children did not speak Serbian (E.H. et al., joint opinion of Luis Ernesto Pedernera Reyna and José Ángel Rodríguez Reyes (partially concurring), para. 6).
The children in A.M.K. & S.K. ultimately submitted their own applications for regularization, with one receiving a residence permit and the other allowed to remain while her application was pending, and the expulsion order against the family was revoked in January 2021.
Each family asked for child psychiatric support and compensation in the amount of €10,000 per child for the harm suffered (A.M.K. & S.K., para. 3.9; E.H. et al., para. 3.7). E.B. also requested her family’s repatriation to Belgium (E.H. et al., para. 8.4).
As interim measures, the CRC Committee’s Working Group on Communications requested each family’s release from detention, repeating the request in the case of E.B. and her family, but declined to request the suspension the families’ expulsions. (A.M.K. & S.K., para. 1.2; E.H. et al., paras. 1.2-1.3.)
As grounds for inadmissibility, Belgium urged the CRC Committee to find that E.B. had not exhausted all available domestic remedies because she had not sought her family’s release when they were detained a second time and had not appealed a court’s decision to withdraw its earlier request that Belgium not deport the family while their petition for release from detention was pending. Because an appeal of the second detention would not have protected the family against deportation, the Committee did not consider it an effective remedy (E.H. et al., para. 12.2, citing B.I. v. Denmark, para. 5.2; see also N.B.F. v. Spain, para. 11.3 (adding that “excessively prolonged” remedies are also not effective)).
The CRC Committee found each case’s claims that expulsion would violate the children’s right to an adequate standard of living to be inadmissible. In A.M.K. & S.K., the Committee found the claim moot because the family was no longer facing expulsion. In E.H. et al., the Committee concluded that the “very general manner” in which the claim was presented “failed to substantiate it” (E.H. et al., para. 12.3).
The CRC Committee also found E.B.’s claim that her children’s expulsion to Serbia would violate their right to respect for private and family life to be inadmissible (E.H. et al., para. 12.4). The basis for this decision is discussed the commentary section below.
In both cases, the CRC Committee found that the children’s detention in closed family detention centres violated the prohibition on ill-treatment (art. 37 CRC), read alone and in conjunction with the best-interests principle (art. 3 CRC). (A.M.K. & S.K., para. 10.14; E.H. et al., para. 13.15.)
In doing so, the CRC Committee quickly dismissed Belgium’s objections that the families’ detention was extended because they sought to challenge their expulsions – steps Belgium characterised as “aggressive pursuit of procedural remedies” (E.H. et al., paras. 7.6, 13.6) and “procedural obstinacy” (A.M.K. & S.K., paras. 4.17, 10.6). In that regard, the CRC Committee held that the parents’ “exercise of their right to judicial review cannot justify the detention of their children.” (A.M.K. & S.K., para. 10.12; see E.H. et al., para. 13.13.)
Belgium’s failure to consider alternatives to detention, including the option of allowing the families to remain in their own homes while they pursued appeals and other judicial remedies, was an element of the finding that Belgium had not taken the children’s best interests as a primary consideration. (A.M.K. & S.K., para. 10.13; E.H. et al., para. 13.14.)
The CRC Committee did not consider whether the facts of these cases also amounted to a violation of the prohibition on ill-treatment in conjunction with the right to the highest attainable standard of health (art. 24 CRC), the right to education (arts. 28 and 29 CRC), the rights of ethnic, religious, or linguistic minorities (art. 30 CRC), and the right of the child to rest and leisure (art. 31 CRC
The Prohibition on Immigration Detention of Children
The CRC Committee’s findings on the detention are a straightforward application of the interpretation it has given to article 37 CRC in the context of migration. (See Joint General Comment No. 4/23, paras. 5-10); General Comment No. 6, para. 61.)
Belgium had argued that article 37 CRC, on its face, “does not prohibit the detention of minors in absolute terms and does not contain any objection to detention for reasons related to migration” (A.M.K. & S.K., para. 4.12; see E.H. et al., paras. 7.2, 11.8), and pointed to the Human Rights Committee’s General Comment 35, which states that the detention of children for immigration control should be a measure of last resort and for the shortest appropriate period of time.
Rejecting these arguments, the CRC Committee reiterated its interpretation that “the possibility of detaining children as a measure of last resort must not be applicable in immigration proceedings” (A.M.K. & S.K., para. 10.9) and repeated its recommendation that Belgium ends the immigration detention of children (Concluding Observations: Belgium, para. 44(a).
The Prohibition on Return to a Country Where the Child Would Face Irreparable Harm
Each case seems to have raised the basic elements of a claim that the children risked irreparable harm upon expulsion. The issuance of residence permits in A.M.K. and S.K. mooted the claim in that case, but the facts presented in E.H. et al. offered at least some suggestion that the family would face destitution and discrimination if expelled to Serbia. The family accepted return to Serbia in circumstances the mother described as not voluntary; she said she felt compelled “to accept being deported in order to receive financial assistance on her return to pay for the rent, water and electricity for three months, receive food parcels, register the family at the town hall and school and with the social services, and buy school supply kits for the children and any necessary medicine” (E.H. et al., para. 6.1). She also reported that one child was immediately hospitalized on the family’s arrival in Serbia for serious health problems (para. 4.3) and said that the children were not in school and had no regular access to health care (paras. 6.2, 8.3). The communication did not explicitly present these circumstances as a violation of the principle of non-refoulement; instead, it suggested that they amounted to violations of the right to preserve family relations (art. 9) and the right to an adequate standard of living (art. 27). Perhaps for this reason, the CRC Committee found this claim unsatisfactory, describing it as “presented in a very general manner” and ruling it inadmissible (E.H. et al., para. 12.3).
But as two CRC Committee members observed in their separate opinion in E.H et al., “These circumstances reveal the lack of a return plan capable of ensuring sustainable reintegration under a human rights-based approach, with provision made for immediate protection measures and long-term solutions, in particular effective access to education, health, psychosocial support and family life.” (Joint opinion of Luis Ernesto Pedernera Reyna and José Ángel Rodríguez Reyes (partially concurring), para. 5.) The two CRC Committee members called for the principle of non-refoulement to be taken into account in the case (para. 10), presumably meaning that the Committee should have considered whether the facts suggested risk of (or, in this case, actual) irreparable harm for the children upon return, even if the communication did not explicitly raise that claim.
Returns are prohibited under the CRC if there are substantial grounds for believing that there is a real risk of irreparable harm for the child. (General Comment No. 6, para. 27; Joint General Comment No. 3/22, para. 45.) The CRC Committee has clarified that irreparable harm is not limited to violations of the right to life, survival, and development (art. 6(2) CRC) and the prohibition of torture and other ill-treatment (art. 37 CRC); for example, “the particularly serious consequences for children of the insufficient provision of food or health services” can also amount to irreparable harm. (General Comment No. 6, para. 27.)
Non-refoulement obligations apply “irrespective of whether serious violations . . . originate from non-state actors or whether such violations are directly intended or are the indirect consequence of action or inaction” (General Comment No. 6, para. 27; Joint General Comment No. 3/22, para. 46).
According to the CRC Committee, the risk of irreparable harm should be evaluated under the principle of precaution, meaning that “where reasonable doubts exist that the receiving State cannot protect the child against such [harm], State parties should refrain from returning the child” ((I.A.M. v. Denmark, para. 11.8(c); W.M.C. v. Denmark, para. 8.3). The precautionary principle is discussed in the case note on W.M.C.
The failure of the expelling State to ensure access to urgent medical care and support in the State of expulsion violates the principle of non-refoulement (Z.S. and A.S. v. Switzerland). In contrast, the expulsion of a child with a general need for continued medical treatment would not amount to a violation unless the “treatment is essential for the life and proper development of the child and would not be available and accessible in the State of return” (D.R. v. Switzerland). For an analysis of the jurisprudence of the CRC Committee and that of other treaty bodies and the European Court of Human Rights on the need for medical treatment and the principle of nonrefoulement, see the case note on Z.S. and A.S.
The Right to Preserve Family Relations
The CRC Committee’s inadmissibility ruling on E.B.’s claims that her children’s expulsions to Serbia would violate her children’s rights to maintain direct contact with both parents (art. 9 CRC) and preserve their family relations (art. 8 CRC), including with their paternal grandmother, suggests an overly deferential reliance on State migration authorities to safeguard these rights. Dismissing these claims, the Committee stated that “as a general rule, it is for the organs of States parties to examine and evaluate the facts and evidence in order to determine whether there is a risk of a serious violation of the Convention upon return, unless it is found that such examination was clearly arbitrary or amounted to a denial of justice” (E.H. et al., para. 12.4).
The CRC Committee has taken this approach in cases involving child custody, visitation, and similar matters, as in one of the cited cases. (See U.A.I. v. Spain, para. 4.2 (a national court’s denial of scheduled visits between an aunt and her niece).) Adoption, custody, and visitation cases are at their core matters that require adjudicators to balance the preservation of family relations against factors such as the care, protection, and safety of the child (see General Comment 14, paras. 60, 71-74, 80). Family court hearings frequently have more procedural safeguards than expulsion hearings provide.
The expectation that migration authorities should consider family unity and children’s best interests in deportation decisions is a relatively recent development. There are examples of tribunals taking children’s best interests into account in expulsion decisions, for example in decisions by New Zealand’s Immigration and Protection Tribunal (see, e.g., AD (Tuvalu), paras. 23-26), but such cases remain the exception rather than the rule.
The CRC Committee should treat with caution states’ claims that their migration authorities have taken the best interests of children into account at every stage, particularly where, the state suggests that the offer of multiple “opportunities to leave the country voluntarily in order to avoid the forced repatriation procedure” is a means of taking best interests into account (E.H. et al., para. 13.8).
The CRC Committee should also consider whether it has set the bar too high by requiring children and their representatives to show that the decisions of migration authorities on family life and best interests were “clearly arbitrary.”
The basis for the CRC Committee Working Group’s decisions in each case not to request suspension of the family’s expulsion is not apparent from the published judgment. Each family appears to have requested this interim measure at a time when an expulsion order was in effect. Their complaints included at least some allegations that they would face destitution if expelled, and E.B. pointed to the discrimination of Roma in Serbia as a further indication of harm.
The CRC Committee, in its guidelines for interim measures, advises that it may request measures “as may be necessary in exceptional circumstances to avoid possible irreparable damage” (para. 1). It further notes that interim measures are both precautionary (meaning that they preserve the legal situation the CRC Committee is considering) and protective (by seeking to prevent irreparable harm). Suspension of an expulsion order will ordinarily serve both of these purposes.
The CRC Committee only requests interim measures if the risk of irreparable damage is imminent (Guidelines for Interim Measures, para. 3). The purposes of interim measures are not served if the requirement of imminence is interpreted too strictly; in line with the Committee’s guidance on the level of proof required to demonstrate risk more generally, a prima facie showing should be sufficient.
Under a prima facie standard, the CRC Committee could justifiably treat deportation as imminent whenever an expulsion order has been issued, in the absence of an explicit guarantee that the pending order will not be carried out.
Moreover, expulsions ordinarily have serious consequences, which can be particularly severe and long-lasting if they lead to violations of children’s rights. Among other practical difficulties, children and their families frequently face increased, and sometimes insurmountable, challenges in securing their right to a remedy once they are expelled. As with all interim measures, a request by the CRC Committee to suspend an expulsion order is not a determination on admissibility or the merits, and the State Party may present arguments for the lifting of the measure at any time (Rules of Procedure, rule 7, paras. 3, 5).
In light of this, it would not be unreasonable for the CRC Committee to request the suspension of expulsion orders in every case where children and their representatives made plausible allegations that their deportation would risk irreparable harm, including harms of the kind feared by the families in these two cases. To be sure, such a practice would likely mean many more applications for interim measures, and potentially more individual complaints challenging expulsion orders.
At the very least, it would be desirable to have more explicit guidance from the CRC Committee on the requirements children must meet at this preliminary but critical stage.
Vluchtelingenwerk Vlaanderen, “Detention of Vulnerable Applicants,” in Country Report: Belgium (Asylum Information Database & European Council on Refugees and Exiles, April 2022).