On 25 June 2020, the European Court of Human Rights published its judgment in Moustahi v France (Application No. 9347/14) concerning the detention and collective expulsion of two unaccompanied children.

The applicants, Mr. Moustahi and his two children, are Comorian nationals, now living in Mayotte after successfully applying for family reunification in 2014. He entered Mayotte in 1993 with a temporary residence permit and his wife, with irregular status, was issued a removal order to the Comoros in 2011 together with their children. In 2013, the children travelled to Mayotte by boat, and were intercepted by the French authorities. They were detained, together with other adults, before their immediate removal. During this time, the children were incorrectly associated with another adult and were included in his removal order. The applicant children complain that their detention was contrary to Article 3 ECHR, Article 5(1), and 5(4) ECHR. They also complain that they were subject to a collective expulsion contrary to Article Protocol No. 4. All three applicants complain, inter alia, that detention and separation of the family throughout the proceedings was contrary to Article 8 ECHR.

The Court first observed that the applicant children had been arbitrarily associated with an unrelated adult in respect of their return order, and were also detained in the same location and conditions as other adults. As such, the French authorities had failed to ensure that the children were treated in a manner compatible with Article 3 ECHR. It added that their arbitrary association with another adult was not carried out in an effort to act in the best interests of the children, but was rather carried out with a view of facilitating their speedy removal. The placement of the children in detention with other unrelated adults was also found to amount to a violation of Article 5(1) ECHR. Moreover, it was apparent that no administrative detention order had been issued to the children, but it was made in conjunction with the same adult. As a result, the Court held, inter alia, that the children had effectively entered a legal vacuum without the possibility to challenge their removal and without the accompaniment of an adult able to legally act on their behalf. Their detention was therefore found to be contrary to Article 5(4) ECHR.

Moreover, the Court observed that the applicant children had been placed in detention while their father, who had been made aware of their detention, was not provided access to see them. It added that the decision refusing to reunite the children with their father was not in their best interests and amounted to a violation of Article 8 ECHR in respect of all three applicants.

In respect of the children’s complaints under Article 4 Protocol No. 4, the Court highlights several factors including, inter alia, the very young age of the children; the fact that they were not known by the associated adult so that he could provide the reasons that could prevent their return; the lack of an individualised expulsion measure for the children, who were instead connected to the removal order of unrelated adult; and the fact their return had been ordered without a reasonable and objective examination of their circumstances. It therefore concluded that their removal amounted to a violation in respect of Article 4 Protocol No. 4.

The Court also found violations in relation to the lack of effective remedies in respect of Articles 8 ECHR and Article 4 Protocol No. 4 in conjunction with Article 13 ECHR.

Based on an unofficial translation by the EWLU team.

Photo: (CC) Lux Tonnerre, August 2015

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