Judgment Nº CRC/C/87/D/115/2020 from United Nations of Human Rights, Office of the High Commissioner, 31-05-2021
| Judgment Date | 31 May 2021 |
| Case Outcome | Adoption of views |
| Submitted Date | 08 March 2020 |
| Subject Matter | admissibility - manifestly ill-founded,admissibility - exhaustion of domestic remedies,admissibility - ratione personae,best interests of the child,discrimination |
| Court | Office of the United Nations High Commissioner for Human Rights |
|
United Nations |
CRC/C/87/D/115/2020 |
|
Distr.: General 22 June 2021 English Original: Spanish |
Committee on the Rights of the Child
Views adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child ona communications procedure, concerning communicationNo. 115/2020 * , **Communication submitted by:H.M. (represented by counsel, José Luis Rodríguez Candela)
Alleged victim:A.E.A. (the author’s son)
State party:Spain
Date of communication:8 March 2020
Date of adoption of Views:31 May 2021
Subject matter:Right to education of a Moroccan child born and raised in Spain
Procedural issues :Failure to exhaust domestic remedies; incompatibility ratione personae; failure to substantiate the complaint
Substantive issues:Discrimination; best interests of the child; education
Articles of the Convention :2, 3, 28 and 29
Articles of the Optional Protocol:6 and 7 (c), (e) and (f)
1.1The author of the communication is H.M., a national of Morocco born on 9 August 1981. She has submitted the present communication on behalf of her son, A.E.A., a national of Morocco born in Melilla, Spain, on 21 November 2012. She claims that her son’s rights under articles 2, 3, 14, 28 and 29 of the Convention have been violated. The Optional Protocol entered into force for the State party on 14 April 2014.
1.2On 10 March 2020, pursuant to article 6 of the Optional Protocol, the working group on communications, acting on behalf of the Committee, requested that, as an interim measure, the State party immediately enrol A.E.A. in school in order to allow him to attend classes while his case was under consideration by the Committee. The Committee repeated its request for interim measures on 22 April, 12 June and 23 September 2020.
The facts as submitted by the author2.1On 8 May 2019, the author applied for A.E.A. to be enrolled in school, using the regular procedure established under the domestic laws of the State party. She attached to the application the certificate of his birth in Melilla, his health card and his Moroccan passport. On 28 October 2019, after the school year had begun without her having received a response from the authorities, she requested that the courts order her son’s enrolment, but she received no response to her request.
2.2On 24 January 2020, given the authorities’ continued silence, the author petitioned the administrative courts for an emergency provisional remedy or, alternatively, a regular provisional remedy ordering her son’s enrolment in order to prevent the irreparable harm of the loss of a school year. In order to prove that A.E.A did actually reside in Melilla, the author attached a record of his vaccinations in Melilla, a gas supply contract in his father’s name and a copy of a police report for theft filed by his father, which showed the same address that appeared on all the other documents. Administrative Court No. 2 denied the request for an emergency provisional remedy on 30 January 2020 and the request for a regular provisional remedy on 10 February 2020. On 11 February 2020, the author again sought a provisional remedy on the basis of a request for interim measures made by the Committee in an individual communication similar to the present one. This request for a provisional remedy was denied on 28 February 2020, as the Committee’s request applied to a communication unrelated to the author’s case.
2.3On 13 February 2020, after the court had denied the request for a provisional remedy for the first time, the author filed an appeal with the Litigation Division of the High Court of Justice based in Málaga. According to the author, this appeal is an ineffective remedy in the face of irreparable harm because it does not have suspensive effect.
2.4The author adds that, since a sister of A.E.A., I.E.A., has been enrolled in the State education system since the 2018/19 school year, the refusal to enrol A.E.A. is incomprehensible.
2.5The author states that, in order for a foreign national’s name to be recorded in the Melilla municipal register, unlike in the rest of Spain he or she must be in possession of a residence permit or visa, meaning that the municipal registration process is tied to the lawfulness of the foreign national’s administrative status. The author argues that this requirement, which is contained in article 16 (2) of Act No. 7/1985 of 2 April establishing the basic provisions of local government, is contrary to domestic law, which provides that the right to education is universal, and thus enjoyed by foreign children on an equal basis with Spanish children regardless of their administrative status. On 7 November 2008, the Government Advisory Office of the City of Melilla refused municipal registration to A.E.A.’s father on the grounds that he did not have a residence permit.
2.6The author adds that her son A.E.A. and her daughters have for years been attending an unregulated education centre called the Residence for Muslim Moroccan Students in Melilla, which is neither accredited nor recognized as a school. This means that her children will not be able to earn the diplomas needed in order to thrive and integrate in their country of residence and live and work there with dignity, and this places them in a situation of social exclusion.
2.7According to the author, the difficulties involved in enrolling minors of Moroccan origin born and residing in Melilla have been reported publicly and are well known. These difficulties have also been decried on a regular basis by civil society and even by the Ombudsman. Ultimately, these children are being denied access to school because they are being discriminated against on the grounds of their nationality and origin, in violation of the principle of the best interests of the child.
The complaint3.1The author states that, since A.E.A. was born in Melilla and ample proof of his residence in the city has been provided, the only explanation for the refusal to enrol him in school is that he is being discriminated against on the grounds of his Moroccan origin and his lack of a residence permit, in violation of article 2 of the Convention.
3.2The author argues that, because primary education is not only a right but also an obligation, denying A.E.A such education is contrary to his best interests, in violation of article 3 of the Convention. The author adds that at no point has any effort to determine her son’s best interests been made.
3.3The author claims that not being enrolled in school is hindering her son’s proper development and preventing him from enjoying a decent quality of life and developing all his capacities, in violation of articles 28 and 29 of the Convention.
3.4The author stresses that, as its name indicates, the educational centre attended by A.E.A. is not secular, which means that he is being forced to be educated in the Muslim religion, in violation of his and his parents’ right to religious freedom, protected under article 14 of the Convention.
3.5In the light of the foregoing, the author requests that A.E.A. be immediately enrolled in school.
Additional information provided by the author4.On 16 April 2020, the author reported that the authorities had not moved forward with her son’s enrolment. She stated that she had again petitioned for a provisional remedy at the domestic level in the light of the Committee’s request for interim measures but had so far received no response.
State party’s observations on the request for interim measures5.1On 11 May 2020, the State party submitted its observations on the request for interim measures. It argues that the State party’s obligations with respect to the request made by the Committee are limited, under article 6 (1) of the Optional Protocol, to its urgent consideration of the interim measures requested. The State party argues that it has scrupulously complied with this obligation.
5.2The State party argues that the Committee’s request failed to demonstrate either that there were exceptional circumstances or that the author’s son might suffer irreparable damage if the measures requested were not taken. The State party warns that the child would be harmed if, after his immediate, provisional enrolment, it was decided at the end of the proceedings that the measure should be lifted, as this would mean that he had to leave an educational environment into which he may have settled. The State party argues that such harm could be greater than the harm that might result from the enrolment, if it were to happen, being delayed for a certain period of time.
5.3The State party notes that it has forwarded the contents of the author’s communication to the Ministry of Education and Vocational Training for urgent review of her son’s situation, along with the administrative files relating to his enrolment application, for an assessment of whether the interim measure requested by the Committee should be adopted. The State party asserts that, in communication No. 111/2020, the child in question had been registered in the municipal register and, after various branches of the police had conducted visits confirming that she genuinely resided in Melilla, she was enrolled in and attends school on a permanent basis.
Additional information submitted by the author6.1On 5 June 2020, the author reported that the published lists of children accepted for the 2020/21 school year showed that her son had been excluded for the year because his paperwork was allegedly incomplete. The authorities had not, however, told the author which documents were missing. The author points out that police personnel had gone to the home of the author of communication No. 111/2020, which was currently before the Committee, to confirm that the author and her daughter resided in Melilla, resulting in the daughter’s enrolment in school, but that such a step had not been taken for her son.
...To continue reading
Request your trial