Information Note on the Court’s case-law 241

June 2020

Moustahi v. France - 9347/14

Judgment 25.6.2020 [Section V]

Article 4 of Protocol No. 4

Prohibition of collective expulsion of aliens

Collective nature of expulsion stemming from failure to examine situation of unaccompanied minors, arbitrarily associated with unrelated adult for the purpose of being deported with him: violation

Article 3

Inhuman treatment

Expulsion

Positive obligations

Unaccompanied minors in administrative detention, arbitrarily associated with an unrelated adult and deported without precautions to a third State: violation

Article 5

Article 5-1

Deprivation of liberty

Lawful arrest or detention

Unaccompanied minors placed de facto in administrative detention by arbitrary association with an unrelated adult for purposes of removal measure in breach of domestic law: violation

Article 5-4

Review of lawfulness of detention

Take proceedings

Unaccompanied minors placed de facto in administrative detention for several hours by arbitrary association with an unrelated adult, without any effective remedy: violation

Article 8

Expulsion

Article 8-1

Respect for family life

Refusal to allow reunion of father with his two small children, placed de facto in administrative detention by arbitrary association with an unrelated adult: violation

Article 13

Effective remedy

Remedies against expulsion rendered ineffective by rapidity of enforcement: violation

No need for suspensive remedy in respect of mere practical arrangements for expulsion, a compensatory remedy being sufficient: no violation

Facts – Mayotte is a French overseas département in the Comoros archipelago. The facts date back to 2013, the applic ants being three Comorian nationals: a father (the first applicant) and his two children (then aged 3 and 5 – unless otherwise specified below, the complaints were submitted on behalf of the children).

The two children left the Comoros with about 15 people on a makeshift boat heading for Mayotte, where their father was living, as a legal resident. Having been intercepted at sea at 9 a.m., their names were added to a removal order issued against one of the adults in the group (M.A.). At 2 p.m., they were pla ced in administrative detention in a police station. Their father came to meet them there but was not allowed to see them. At 4.30 p.m. the children were placed with M.A. on a ferry bound for the Comoros.

An hour later, the father lodged an application fo r urgent proceedings in the Administrative Court. While noting that the decision in question was “manifestly unlawful”, the judge rejected the application for lack of urgency. The urgent applications judge of the Conseil d’État dismissed an appeal, finding that it was up to the father to follow the appropriate procedure in order to apply for family reunification. In 2014 the two children were granted a long-stay visa in this context.

Law

Article 3: Preliminary question as to the accompanying of the children or their association with an adult – The entrusting of young children to adults in the migration context was a particularly important decision with regard to their interests (all the more so in French law as such association allowed them to be placed in a dministrative detention and then returned to another State).

Consequently, it was up to the national authorities to determine, as far as possible, the nature of any links between children and the adults with whom they might be administratively associated. In the specific case where no identification document allowed the existence of such links to be established with certainty, the authorities had to be particularly vigilant in order to avoid, as far as possible, the risk of entrusting children to a person w ho had no authority over them.

French law provided for the appointment of an ad hoc administrator to assist unaccompanied foreign minors who were refused entry into French territory. However, according to the third-party interveners (including the Defender of Rights), there was a practice in Mayotte of arbitrarily associating minors with adults unknown to them in order to allow them to be placed in detention and then returned to the Comoros. In fact, with one exception, none of the forty-three children retu rned on the same day on the same boat had the same surname as the adult with whom they were associated.

There was nothing to suggest that the applicant children and M.A. had any previous links with each other. Even assuming that M.A. had stated that he wa s accompanying the children, the fact remained that the French authorities had taken no steps to ascertain the reality of that statement before associating the children with him for their placement in administrative detention, even though they bore differe nt surnames; the reports did not mention the nature of those links or any questions that might have been put to him on the subject. Moreover, this association had not been reconsidered when their father went to the police station with the children’s birth certificates. It could not be accepted that it was the responsibility of the third party entrusted with the children to raise with the authorities a formal objection to such association.

The Court concluded not only that the two children had indeed been “u naccompanied” minors, but also that their association with M.A. had been arbitrary, not in order to protect the best interests of the children, but in order to allow their speedy deportation to the Comoros; without being decisive in itself, this finding wa s a relevant factor in the examination of the other complaints.

As to the conditions of detention – The conditions of the two children’s detention had been the same as those of the adults apprehended at the same time as them: in a short-term detention faci lity, on the premises of a police station, the children being separated from any member of their family. Apart from their arbitrary association with M.A., no adult had been designated to look after them.

In view of the considerable vulnerability resulting from the children’s age and the fact that they had been left to cope on their own, the above findings sufficed, regardless of the duration of their detention, to conclude that the detention could only have created a situation of stress and anxiety for the m and had particularly traumatic consequences for their mental state.

Conclusion : violation (unanimously).

Conditions of the children’s return to the Comoros – (i) For the two children – There had clearly been deficiencies in the arrangements for their return, with a lack of supervisory measures and safeguards: the two children had returned to the Comoros on their own, without being accompanied by an adult, to whom the French authorities c ould have entrusted their care, other than M.A., an unrelated adult with whom they had been arbitrarily associated; moreover, the French authorities had not taken the slightest step to contact their family in the Comoros or the authorities of that State in order to ensure that they were received on arrival. The two children had thus arrived at night at their destination, without having anyone there to meet them, and had only been able to rely on an unconnected adult to avoid being left to their own devices.

Thus the French authorities had failed to ensure effective arrangements for the care of the children, and to take account of the reality of the situation that they faced on their return. Their return in such conditions had necessarily caused them a feelin g of extreme anxiety and had constituted inhuman treatment, together with a failure by the respondent State to fulfil its positive obligations.

Conclusion : violation (unanimously).

(ii) For the father –  The distress and anxiety of the first applicant, as the father of unaccompanied small children – in particular because he had gone to the police station without being recognised as such, despite the documents he presented, and had thus helplessly witnessed their detention and removal despite his administrat ive and then judicial appeals – were not, however, exacerbated by a concern that their lives were in danger. More specifically, the following reasons allowed the Court to consider that the requisite threshold of seriousness had not been reached.

Firstly, t he children’s detention had been of a short duration. Secondly, in contrast to the outward journey – an unlawful and perilous crossing on a makeshift boat, arranged by the father himself, without ensuring that his children were accompanied by an adult with authority over them – the return journey had been completed in satisfactory conditions of transport, since the two children had travelled on a ferry belonging to a company operating the crossing to the Comoros. Thirdly, the first applicant had been able t o rely on his own mother to look after the children again on their return.

Conclusion : no violation (unanimously)

Article 5 § 1: The placement of the two children in administrative detention had constituted a deprivation of liberty and the Court found no l egal basis for that deprivation.

Under the applicable domestic law, an alien under the age of eighteen could not be issued with a removal order or an order for detention pending removal. This explained why these orders had been issued only against the adul t M.A.

Contrary to other cases, the de facto placement of the children in a detention facility had not been based on a concern to avoid separating them from their family but only to enable the implementation of a removal measure that was not permitted unde r domestic law.

Conclusion : violation (unanimously)

Article 5 § 4: Even though their detention had been brief, it was not superfluous to rule on the merits of this complaint, as the two children had been deprived ab initio and with final effect of any remedy by which to obtain a review of the lawfulness of their detention.

The children had not been held in the company of an individual who had the legal authority to act on their behalf before the courts, and necessarily havi ng their interests at heart. The possibility for the children’s situation to be examined on the occasion of a hypothetical appeal brought by someone unknown to them could not suffice.

Conclusion : violation (six votes to one).

Article 8 (for all three appli cants): The allegedly loose nature of the ties between the children and their father at the material time could not preclude the application of Article 8 in respect of family life, since it was on that basis that they had subsequently been granted a long-s tay visa.

The fact of placing certain members of the same family in a detention centre while other members of that family were free could be construed as interference with the exercise of their right to family life, regardless of the duration of the measur e in question. Having regard to the finding of a violation of Article 5 § 1 above, this interference was not “in accordance with the law”. But the resulting violation of Article 8 was further aggravated by the following factor.

If there had been a legal ba sis for the applicants’ forced separation, it was conceivable that a State might refuse to entrust the children to a person claiming to be a member of their family, or to arrange a meeting between them, on grounds related to the children’s best interests ( such as the precaution of ascertaining beforehand, beyond all reasonable doubt, the reality of the alleged links).

However, the refusal to reunite the applicants had not sought to ensure respect for the best interests of the children, but only to implement their removal as quickly as possible and in a manner contrary to domestic law; this could not be accepted as a legitimate aim.

Conclusion : violation (six votes to one).

Article 4 of Protocol No. 4: Under the applicable domestic law, removal orders could n ot be issued against minors on an individual and personal basis: their situation necessarily followed that of the parents or, failing that, of the person accompanying them.

Where a child was accompanied by a parent or a relative, the requirements of Articl e 4 of Protocol No. 4 might be met if that adult was able to raise, in a meaningful and effective manner, their arguments against their joint expulsion.

However, there was nothing in the present case to indicate that M.A. had sufficient knowledge of the re asons which might be raised against the removal of the children. In any event, there was no evidence that he had been asked the slightest question about the children associated with him or that he had raised the matter on his own initiative.

Accordingly, t he removal of these two young children, aged five and three, who were not known to or assisted by an accompanying adult, had been decided and implemented without any guarantee of a reasonable and objective examination of their individual situations. The ex pulsion therefore had to be characterised as collective in nature.

Conclusion : violation (unanimously).

Conclusion : no violation (unanimously).

Article 13, in conjunction with Article 8 and Article 4 of Protocol No. 4: While the urgent applications procedu re could in theory enable the judge to examine the arguments raised on behalf of the applicants and to order, if necessary, a stay of execution of the removal, that had not been the case in practice.

The two children had been deported from Mayotte less tha n eight hours after they were apprehended. In spite of the speed with which he had acted (less than four hours after the removal order issued to M.A. and mentioning the children’s names), the implementation of the measure had already been underway for one hour when the father had filed an appeal on their behalf with a court.

The fact that such a short time had elapsed between the ordering of the removal and its implementation had precluded any possibility for an action to be meaningfully brought before a co urt, still less for that court to properly examine the circumstances and legal arguments under the Convention “in the hypothesis of” the removal being implemented. The subsequent issuance of a residence permit had not remedied that failing.

Conclusion : vi olation (six votes to one).

Article 46: Positive developments in legislation and case-law had taken place since the events of the case. The urgent applications judge of the Conseil d’État had found that the administrative authority was obliged to verify the identity of foreign minors placed in administrative detention and to ascertain whether there was any connection between them and any adults with whom they might be associated for the pu rposes of removal and the conditions in which the minors would be received on arrival at their destination. Compliance by the authorities with these judge-made requirements was intended to prevent the repetition, in respect of other minors, of most of the violations that had been found by the Court in the present case. As to the new legislative provisions applicable in Mayotte (which still did not allow an alien to refuse removal before one clear day had passed), it was up to the authorities to ensure that their application would not entail any further similar violations of Article 13.

Article 41: EUR 22,500 for non-pecuniary damage, consisting of EUR 2,500 for the father and EUR 10,000 for each of the two children.

© Council of Europe/European Court of Hum an Rights This summary by the Registry does not bind the Court.

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