On 28 February, the European Court of Human Rights ruled in case Khan v. France (application no. 12267/16) that the failure of the French authorities to provide care for an unaccompanied minor in the Calais refugee camp was in breach of Article 3 of the Convention.

The applicant, an Afghan national, had left his country to seek asylum in Europe and arrived in Calais, France, where he remained hoping to reach the United Kingdom. In 2015, following pressure from a number of NGOs, the Lille Administrative Court ordered the Pas-de-Calais Prefect to determine the number of unaccompanied minors in distress and to co-operate with the Pas-de-Calais Department in placing them in care. Additionally, an NGO also lodged an application for a provisional care order on behalf of the applicant with the Children’s Judge, who granted the request. The authorities, however, did not act on the aforementioned two orders.

The applicant complained before the ECtHR that the authorities’ failure to comply with the orders to provide provisional care amounted to a violation of the duty to protect under Article 3 of the Convention. The Court rejected the French government’s contention that the domestic remedies had not been exhausted, emphasising the domestic authorities’ automatic obligation to protect with regard to unaccompanied children under Article 3 of the Convention. Noting the particularly difficult conditions in which the child had found himself and the NGO’s move to request an order, the Court concluded that the applicant did what could reasonably be expected of him in the light of the requirements of exhaustion of remedies.

On the merits, the Court heavily relied on the detailed descriptions of the refugee sites in Calais regarding the facilities and the provision of food, water and healthcare to confirm that such situations expose minors to multiple dangers. Taking note of the applicant’s very young age and the fact that he had been living there for six months, the Court found that the reported conditions testified to a manifestly unsuitable environment for children and highly likely to expose them to inhumane or degrading treatment. The French government argued that they had done everything they could to provide care for the applicant but the applicant himself did not engage with the process. The Court, however, dismissed this argument stating that the fact that no action was taken before the order of the Children’s Judge is in itself sufficient to question the authorities’ compliance with Article 3. The authorities had never identified the applicant, even though he was of such young age and had been living alone in the Calais site for a number of months. In addition to this, the Court highlighted that the applicant probably had a very limited knowledge of French and he could not be expected to engage with the authorities on his own initiative.

The Court was not convinced that the authorities did all that was reasonably expected of them to fulfil their obligation to protect an unaccompanied minor in an irregular situation and emphasised its previous jurisprudence about the vulnerability of these children. It therefore ruled that the particularly serious circumstances and the failure of the French authorities to comply with the order to protect the applicant reach the threshold for a breach of Article 3.

*Based on an unofficial translation by the ELENA Weekly Legal Update where it was first published.


Photo: (CC) Lux Tonnerre, August 2015

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