Dr Claire Raissan is an Irish Research Council postdoctoral fellow in University College Cork and holds a PhD from the Irish Centre for Human Rights, University of Galway.
–
On 18 January 2024, the European Court of Human Rights (ECtHR) handed down its judgment in the case of T.K. v Greece (Application no. 16112/20). This case concerned an unaccompanied minor who had been incorrectly ‘aged’ as over eighteen years and treated as an adult by the Greek authorities, despite the fact that he had firmly asserted his minority during the registration process. In so doing, the Greek authorities successfully used the (falsified) age of the applicant as a barrier to his child-specific rights under international, regional and domestic law and policy. The discriminatory ‘culture of disbelief’ and use of age as a barrier to rights for unaccompanied children gives rise to a failure by states to implement, inter alia, procedural safeguards for such children who are then treated as adults. Recent case law of the ECtHR shows that such actions by states and their authorities will give rise to violations of Articles 3, 8 and 13 of the European Convention on Human Rights (ECHR). This blog examines the obligations on states that arise under Articles 3 and 8 ECHR with respect to unaccompanied children who experience the use of age as a barrier to rights at the hands of national authorities, ultimately advocating for structural change in the treatment of this group.
T.K. was a national of Sierra Leone who had arrived without his parents, family, or other caregivers on the island of Samos in 2019, when he was seventeen years old. Upon arrival he lacked the requisite documentation to prove his age and rather than believe his stated date of birth, the Greek authorities instead entered a date of their choosing and registered T.K. as an adult. The applicant later received his birth certificate, which indicated that he had been truthful about his age. However, the Greek authorities then questioned its authenticity and subjected T.K. to age assessment procedures which were presented to him as the only option by which to officially change his date of birth. This ordeal was significant for the applicant, who was experiencing serious mental health difficulties. Having been identified as an adult, he was denied his right to a legal guardian and instead forced to live in overcrowded and unsanitary conditions on the outskirts of the Vathy Reception and Identification Centre, in a makeshift camp referred to by its inhabitants as ‘the Jungle’. I visited this informal camp at around that time and bore witness to the haphazard and filthy living conditions that were noted by the Court in the present judgment, with reference to A.D. v Greece (Application no. 55363/19). Reception conditions in Greece have long been condemned by the ECtHR as so deficient that they amount to a violation of Article 3 ECHR on the prohibition of torture, or inhuman or degrading treatment. Furthermore, in December 2019 under its Rule 39, the ECtHR had indicated interim measures to be taken by the Greek Government with respect to five unaccompanied minors as a result of the dire material conditions of reception in and around the Samos camp. It was therefore unsurprising that the Court concluded in T.K. that there had been a breach of Article 3 ECHR with respect to these conditions. The Court also found that T.K.’s right to an effective remedy under Article 13 ECHR had been breached as he had no way to complain about the material conditions or the procedure for determining age and appointing a guardian under Articles 3 and 8, respectively.
The first element of the complaint warrants a closer look as it relates to the actions of the authorities when they disbelieved the applicant about his age, not only by failing to presume his minority but by using age as a barrier to his rights. In alleging a violation of Article 8 ECHR on the right to respect for private and family life, the applicant rightly asserted that the authorities had failed in their obligation to recognise him as an unaccompanied minor, thereby depriving him of the procedural guarantees that arise in this context under Articles 3 and 8 ECHR, with respect to this group of children. In finding that there had been a breach of Article 8 ECHR, the Court referred to the earlier case of Darboe and Camara v Italy (Application no. 5797/17) which sets out the relevant procedural guarantees arising under this provision. When examining the complaint before it in Darboe, the ECtHR had considered international and regional standards, including Articles 3 and 12 of the Convention on the Rights of the Child (CRC), General Comments of the Committee on the Rights of the Child, and European Union Asylum Agency (EUAA) and other implementing guidance, as well as noting relevant domestic law on the matter. The applicant in Darboe was an unaccompanied Guinean child, who had declared himself a minor at his first point of contact with the national authorities. He submitted that the interlocutor had ‘clearly expressed doubts as to the credibility of the information provided’, and that he had been treated with suspicion and bias which compounded the stress that he was already experiencing. He was moved to an adult reception facility, where he remained following an age assessment conducted there which wrongly established that he was an adult male of eighteen years. During this time, none of the safeguards in relation to initial reception or age assessments for unaccompanied children were adhered to.
Procedural safeguards that were identified by the Court in Darboe as not implemented included, ‘[in particular] the obligation to provide the necessary assistance to the minor in order to formulate the request, the appointment of a legal guardian, the possibility of undergoing a non-invasive age-assessment medical examination, with the individual’s consent, and information pertaining to the type of examination and its consequences’. Importantly, in assessing the claim that a violation of Article 8 ECHR had occurred, the Court noted that: ‘[t]he age of a person is a means of personal identification and that the procedure to assess the age of an individual alleging to be a minor, including its procedural safeguards, is essential in order to guarantee to him or her all the rights deriving from his or her minor status’. As a result, where the child is wrongly identified as an adult, ‘serious measures in breach of his or her rights may be taken’. The ECtHR emphasised that the scope of such cases under Article 8 ECHR was to know whether the authorities had acted in accordance with the obligations, (including the obligation to adhere to procedural safeguards), arising thereunder. The Court also declared that ‘[S]tates’ interest in foiling attempts to circumvent immigration rules [on the protection of unaccompanied children]’ must not deprive unaccompanied children of their fundamental rights. Furthermore, the principle of presumption of minor age (or a liberal application of the benefit of the doubt), was deemed to be an ‘inherent element of the protection of the right to respect for private life’ of an ‘unaccompanied migrant minor’ who was claiming minority. According to the Court, this principle implies the obligation on states to ensure procedural safeguards during any age assessment procedure, thereby treating the unaccompanied child as a child first and foremost, and a migrant second. It was the lack of reasonable diligence on the part of the authorities and failure to comply with their positive obligations, inter alia, to ensure the physical and psychological integrity of the applicant under Article 8 ECHR that ultimately gave rise to a violation thereof. These cases reveal what has been referred to as a ‘pervasive culture of disbelief’ which has manifested in a refusal by national authorities of several states to recognise ‘unaccompanied minors’ as children under eighteen years of age. This ‘culture’ is characterised by the suspicion and distrust shown by the national authorities of receiving states in relation to the age claims made by such children, leading to a failure to apply procedural safeguards and ultimately to rights violations.
The Court has established and continues to reiterate that states will not be granted a wide margin of appreciation when curtailing or failing to uphold the rights of the most vulnerable in their jurisdiction, particularly in the context of Article 3 ECHR and inadequate reception conditions for children, even where the same conditions would not amount to a breach of Article 3 in respect of an adult. Therefore, where unaccompanied children are concerned, there is a lowering of the ‘minimum level of severity’ test applied where there is a real risk that an individual will be subjected to inhuman or degrading treatment such as to engage states’ obligations under the Convention. In this respect, T.K. relied on the established case law of the Court that began with Mubilanzila Mayeka and Kaniki Mitunga v Belgium (the ‘Tabitha’ case) (App No 13178/03), where the Court referred to ‘the absolute nature of the protection afforded by Article 3’ as the ‘decisive factor’ when coupled with a high level of vulnerability, owing to an unaccompanied child’s age and situation. In Tabitha, the Court also established that procedural obligations arising under Article 3 ECHR include an obligation on the national government and authorities of a receiving state to take reasonable measures to provide protection to the particularly vulnerable so as to prevent the type of ‘ill treatment’ of which the authorities have, or ought to have knowledge. This obligation arises with respect to unaccompanied children when the Article 1 ECHR obligation to ‘secure to everyone within their jurisdiction the rights and freedoms’ is taken together with Article 3 ECHR obligation requiring ‘[S]tates to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment’. In Khan v France (Application no. 12267/16), the Court reasoned that states have a ‘duty to protect children and take appropriate measures to do so at all stages of reception, as part of their positive obligations under Article 3 of the Convention’. As such, the Court has declared in Khan that the duty on a state under Article 3 ECHR to provide care to unaccompanied children could be said to amount to ‘an automatic obligation imposed on the domestic authorities’. Furthermore, in Khan, the ECtHR linked this absolute duty under Article 3 ECHR to Articles 20 and 2 CRC on the obligations imposed on a state by these provisions respectively: to ensure alternative care to a child without discrimination of any kind and regardless of the child’s national origin. Where unaccompanied children are wrongly identified as adults, their fundamental rights such as the rights to adequate shelter, education and healthcare become no more than what Bhabha would describe as ‘abstract rights’. Furthermore, as cases such as T.K. and Darboe have illustrated, where unaccompanied children are disbelieved about their age by the authorities of a receiving state, other interrelated fundamental and procedural rights under the ECHR are breached, as children are treated as adults. The consequences of being incorrectly ‘aged’ will therefore have a potentially detrimental impact on the mental and physical integrity of the child for a number of reasons.
However, despite the ECtHR consistently upholding the rights of unaccompanied minors, this response has produced little evidence of change to states’ practice. It is clear that structural change is required in order to eliminate discriminatory practice such as the use of age as a barrier to rights. It is therefore suggested here that as a starting point, established principles derived from the case law of the ECtHR on reception for unaccompanied children may be used to define the nature of duties and obligations on states in this context that arise under the ECHR. As the absolute duties arising under Article 3 ECHR have been linked by the Court to Articles 20 and 2 CRC on the obligations imposed on a state thereunder to ensure alternative care to a child irrespective of the child’s national origin, it could be argued further that all facets of the right to non-discrimination enshrined in Article 2 CRC are linked to these duties. For example, although it cannot enforce Article 2 CRC, the absolute obligation on all European states under this provision to ‘respect and ensure’ the full spectrum of CRC rights to unaccompanied children in a receiving state without discrimination of any kind, can and should be recognised by the ECtHR and furthermore, by the EU in its asylum law and policy. Structural change requires a recognition that the use of age as a barrier to rights by the authorities surpasses a failure to implement procedural safeguards for unaccompanied children, representing instead a manifestation of discrimination against this group. Structural change also requires that states transform their practice in order to fulfil their obligations under international and regional law and policy with respect to the age assessment of, and reception for this group. This includes a full application of the principle of benefit of the doubt, or presumption of minority by the national authorities where an unaccompanied child cannot prove their age, and the full implementation of procedural and substantive rights of unaccompanied children by receiving states.
Irish Centre for Human Rights 