MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-13

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-13 Khan v. France (Application No. 12267/16) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)682, DH-DD(2021)978, CM/Del/Dec(2020)1390/H46-9

 

Application	Case	Judgment of	Final on	Indicator for the classification
12267/16	KHAN	28/02/2019	28/05/2019	Complex problem

Case description

This case concerns the degrading treatment of the applicant, a 12 year old unaccompanied minor (UM) in transit to the United Kingdom, resulting from the authorities' failure to provide him with care and protection, before and after the dismantling of the southern zone of the camp in Calais known as “The Jungle”, due to his particularly poor living conditions and the non-enforcement of the placement order of the juvenile judge of 22 February 2016 aimed at protecting him (violation of Article 3) (§ 94).

Thus, from September 2015 to March 2016, the applicant lived in the Calais shantytown, in an environment totally unsuited to his child status, whether in terms of safety, housing, hygiene or access to food and care and in unacceptably precarious conditions in view of his young age (§ 93). Until the above-mentioned order, the authorities had not even identified him although he had been staying in the camp for several months and his young age should have attracted their attention (§ 88). It appears that the means of identifying UMs in the camp were insufficient, which partly explains the difficulty encountered by the child welfare services (CWS) in tracing the applicant in order to enforce the above-mentioned order (§ 89).

The Court noted that reluctance on the part of UMs present in the Calais camp to adhere to the care measures proposed was due to the unsuitability of the shelter arrangements, in particular due to their distance from Calais. This could not, in any event, justify the inaction of the authorities, who had an obligation to protect UMs and thus to find the best means to fulfil it, in view of their specificities (§ 90).

Whilst noting the complexity of the authorities' task (§ 91), in view, in particular, of the number of people present in the camp at the time, as well as the difficulty of identifying UMs among them and of defining and implementing reception arrangements adapted to their needs, while they were not always asking for care,the Court held that the authorities had not done all that could reasonably be expected of them in relation to one of the most vulnerable members of society (§ 92).

Status of Execution

At the Committee’s request, the authorities provided new information on 2 July 2021 (DH-DD(2021)682). They transmitted afterwards an action report, on 1 October 2021 (DH-DD(2021)978).

Individual measures

The just satisfaction was paid. The applicant left France in March 2016 for the United Kingdom where he lives (§ 34), holding a residence permit until August 2022. In view of this information, the Committee considered at its 1390^th meeting (December 2020) (DH) that no further individual measure was required.

General measures

The authorities consider that they have fully complied with the judgment, since the French legislative framework is adapted to the care of UMs and the situation in Calais has developed positively since the facts of the case.

(1)   Regulations on the reception and care of UMs, applicable to minors in transit

Reference is made to the previous notes (CM/Notes/1390/H46-9) concerning the regulatory framework. The MUM (Mission of UMs within the Ministry of Justice) coordinates the system of their sheltering, assessment and care (law of March 2016). It proposes an orientation geared towards the best interests of UMs, taking into account the allocation rate of UMs to departments. The MUM participates in inter-ministerial work and acts as an expert and facilitator of actors in connection with UMs. A good practice guide for assessing minors and isolation, dated December 2019, is widely disseminated to them, particularly through training. 

The Government intends to regulate the provision of shelter facilities such as hotels (draft law). Work is also under way to define rates and standards in order to improve the quality of reception. A good practice guide to assessing health needs is being drawn up. Work is also being carried out on access to asylum for UMs in order to coordinate the procedure with other procedures, particularly with regard to the appointment of a legal representative prior to the registration of the asylum application.

(2)   Information from the authorities on the implementation of the regulations regarding UMs

According to the authorities' figures (which do not distinguish UMs in transit), the number of UMs referred by judicial decision to departments was 5,990 in 2015; 17,022 in 2018; 16,760 in 2019; 9,524 in 2020. The number of UMs taken into care by the CWS was 28,411 by end 2018; 31,009 by end 2019; 23,461 by end 2020. In 2019, 36,398 young people were provided with shelter (total of 579,542 nights) and 37,328 assessments (with 12,275 recognitions of minority status).

To help identify young people who do not report to the CWS, the authorities have developed methods to reach them. A system has been set up in Paris with an association to address the issue of itinerant/vagrant UMs. There are “rounds” to meet UMs and offer them support. This system is currently being deployed in eight other jurisdictions. If a UM indicates that he or she wishes to continue his or her migration, with the aim of reuniting with his or her family, for example, the CWS can provide support. However, according to the authorities, it is very difficult to dissociate UMs who want to remain in France from those in transit, as they very rarely identify themselves as being in transit.

Preventing runaways (due to a desire to go to another country or personal ties in other departments in France depends particularly on the quality of the assessment made, which must permit the identification of cases where: 1) a legal guardian wants to take care of the minor; 2) he or she wishes to be reunited with his or her family or return to his or her own country; 3) there are links in France that can be developed within the framework of a placement by the CWS.

(3)   Information from the authorities on developments in the Pas-de-Calais department 

Like the applicant, the majority of UMs in Calais (near the United Kingdom) do not envisage staying in France. Most of the other UMs in transit can be found in Grande Synthe (North department), Ouistreham (Department of Calvados) and Paris (part thus of Northern France), with their own specific issues.

According to the authorities, no general measures need to be taken, given the dismantling of the Calais camp at the end of 2016 and the positive developments since then in the Department. Assessments are carried out there by the independent association France Terre d'Asile (FTDA) within five day periods, which makes “rounds” to identify minors and systematically offer them shelter (at the CWS centre, 50 km from Calais). The State has been funding the FTDA since August 2017: seven people are present every day in Calais. This allowed for the sheltering of 818 minors in 2018; 1,254 in 2019; 1,875 in 2020 and 2,114 in 2021 (on 31 August). The number of UMs that have been recognised as such and taken into care by the Department (in various structures) were 425 in 2018; 414 in 2019; 214 in 2020.[1]

(4)   Other communications transmitted to the Committee

According to the Defender of Rights (DOR), while the legal framework is now more solid, the system remains insufficient to identify, shelter, assess and care for UMs. Thus, the non-execution of the placement decision (due to lack of identification and/or reception places) in Khan is not an isolated event.[2] The DOR issued specific recommendations concerning UMs in transit, including organising more “rounds” to identify them, creating daytime reception facilities in their vicinity as well as unconditional and immediate shelter at night.[3]

According to several associations, the situation of children along the Franco-British border remains dramatic, due to a lack of training and reporting by hospitals and law enforcement agencies, and insufficient and inadequate “rounds”. The numerous expulsions from camps have contributed to more disappearances of minors and informal living areas, further reducing the capacity to identify, inform and guide UMs. These associations reiterate the recommendations of the DOR and ask for more human and material resources, improved access to information and regular training sessions for all those involved.[4]

In October 2021 (DH-DD(2021)1118), two associations emphasised the need to do more mixed “rounds” (by specialised CW services and experienced associations), given the reluctance to accept care on the part of UMs in transit. They reiterated the above-mentioned recommendations and highlighted those of a recent Human Rights Watch (HRW) report (see below). Recalling that all UMs must be protected, regardless of their migration plans, UNICEF France (DH-DD(2021)1117) recommends, notably, increasing the meetings and mixed “rounds” to build trust among UMs; guaranteeing immediate unconditional emergency reception to UMs and rest periods before their assessment takes place, in order to properly inform them; appointing to them an ad hoc administrator from this moment, as at the border or in the context of an asylum application.

(5) Other recent information

-       Opinion of the National Consultative Commission for Human Rights (NCCHR) of February 2021[5]

At the end of 2020, the NCCHR visited Calais and Grande Synthe. The UMs are reportedly mainly from Sudan, Eritrea and Afghanistan and are facing precarious living conditions, repeated expulsions and an inadequate response to their basic needs (§ 48 of the Opinion). Entering into contact with them is difficult in Calais (209 were counted in October; 164 in November 2020). The CWS centre (80 places) receives around 200 UMs per month, but many would leave after a few days' rest (because it is too far away), to return to points of departure for the United Kingdom. Associations improve the care of UMs (§ 49). In Grande Synthe, there were 116 UMs in October 2020, but many would not be approached (§ 50).

Despite the “rounds”, the lack of monitoring of UMs, due in particular to their mobility and mistrust,[6] keeps many away from the CWS. Other problems include the frequent absence of a legal representative and of the presumption of minority status (§ 51), and the end of family reunifications in the United Kingdom for UMs under the Dublin III regulation (making it difficult now to propose them to accept shelter in the meantime, § 55).[7] The NCCHR recommends, in particular, that the presumption of minority status should always be taken into account and that an ad hoc administrator should be appointed as soon as UMs arrive.

-       Human Rights Watch (HRW) report, released on 7 October 2021[8]

By mid-2021, around 2,000 people (including 300 UMs) were living in camps in and around Calais and several hundred in a forest in Grande Synthe. Police actions to remove them (more than 1,000 expulsions in 2020, often presented as to provide "shelter" but only for a few days) harm them, without discouraging new arrivals and irregular crossings of the Channel.

The FTDA's “rounds” are said to be too short, not very proactive, and lasting until 5 or 6pm. However, it is only after that time that UMs ask for shelter. They would then have to go to the police, which would discourage many of them, given the expulsions it carries out.[9] The possibility of direct contact with the CWS is thus recommended. In Grande Synthe, there is no organisation mandated by the State to identify UMs, but often reports (that are not followed up). Specialised awareness-raising sessions concerning UMs would there be crucial, given the many traffickers.[10]

The CWS centre is often full or almost at full capacity (due to delays in assessments) and minors do not have access to it.[11] It is also too small: the establishment of at least one dedicated and easily accessible day centre remains an imperative.[12] The reception capacity for UMs is also limited in the North Department.[13] However, more and more UMs accept being taken care of in France, after time spent in a CWS centre. HRW recommend to the authorities that they increase their efforts to convince them to accept shelter and to remain, combined with more comprehensive information for UMs as to their options (to seek asylum in France, to enter the CWS system with the later possibility to gain legal status or to seek family reunification elsewhere).[14]

Analysis by the Secretariat

At its first examination of the case in December 2020 (CM/Del/Dec(2020)1390/H46-9), the Committee noted with satisfaction the already high number of UMs being taken care of and the measures adopted to improve the implementation of the rules. However, it expressed concern about the difficulties that persisted and asked for information on the concrete measures envisaged to continue to improve the situation, in particular, of UMs in transit. In view of the living conditions of many of them, the Committee urged the authorities to adopt specific measures to protect them adequately (shelter until final assessment of age and enforcement of placement decisions), wherever they are on the territory and taking into account the recommendations expressed about them. It also encouraged the authorities to develop, if possible, data on these UMs and to appoint a legal representative for them, as soon as possible.

·         Positive developments but insufficient information and measures concerning UMs in transit 

The new information provided by the authorities shows that they are continuing their efforts to strengthen the protection of UMs (ongoing initiatives to reach them and offer support, to supervise their sheltering and to improve the quality of their reception in general). However, none of this information specifically concerns UMs in transit, despite the Committee's requests to receive information on them and to adopt measures to adequately protect this particularly vulnerable category of UMs.

Although, as the authorities have pointed out, it is difficult to distinguish UMs in transit from other UMs, as they do not generally declare themselves to be in transit (no figures thus exist), this should not prevent the adoption of specific protection measures for UMs in transit, given that the places/regions where they can be the most found are known to the authorities.

Despite a clear increase in emergency (but often short-term) sheltering of UMs in Calais (an improvement since the facts in Khan), the numerous communications received by the Committee show that important problems persist and that additional measures to protect UMs in transit should thus be taken (see below).

The Committee may wish to note with satisfaction that the authorities are continuing their efforts to strengthen the protection of UMs but regret that none of their information specifically concerns UMs in transit. It may also wish to note with satisfaction the significant increase in the number of UMs sheltered in Calais, while noting, in view of important problems that remain, that additional protection measures should be adopted for UMs in transit. The Committee may therefore wish to reiterate its invitation to the authorities to indicate the concrete and specific measures envisaged and to remind them of their obligation to consider the means to "effectively" protect these UMs, given their specific characteristics (§ 90 of the judgment).

·         Possibilities of strengthening the effectiveness of the protection to be guaranteed to UMs in transit

- Locating and identifying UMs

Among the remaining problems, the lack of effectiveness of the right to protection for UMs in transit appears to be linked mainly to the difficulties of locating them in their living areas, as in Khan (§§ 88 and 89), and of directing them to the child protection services of the Pas-de-Calais and Nord Departments. These difficulties are said to be further exacerbated by the numerous expulsions from the camps, which fuel the UMs' mistrust of the authorities, who are supposed rather to protect them under the French regulations.

Thus, UMs should always be identified and sheltered before any evacuation of a camp.[15] It seems that the quantity and quality of the “rounds” around Calais should also be increased, and some should be created in Grande Synthe. A mixed composition, including people specialised in child protection, should enable to better inform young people and increase their trust.

-       Legal representatives of UMs, training of stakeholders and improved access to information

As already indicated in the previous examination, the appointment of a legal representative, as soon as possible,[16] seems all the more important for UMs in transit, to facilitate their relations with the authorities and their acceptance of protection measures (§ 90 above-mentioned) and thus help avoid similar violations of Article 3. The Committee may wish to address these recommendations (sheltering young people before expulsion from a camp, more qualitative “rounds” and rapid appointment of a legal representative) to the authorities and also insist on the need to increase training for the various actors involved (including police, hospitals, ad hoc administrators and associations).

These measures should increase young people's trust to accept shelter,[17] and more comprehensive information on their rights and legal migration options should help them to think about their future.

-       Increase in resources and adaptation of the reception system to UMs

In parallel, it appears necessary to increase the human and material resources dedicated to UMs in transit, especially in the Nord and Pas-de-Calais Departments. In particular, the Committee may wish to invite the authorities to increase their accommodation capacities, often full, and consider immediate and unconditional (cf. presumption of minority) shelter facilities, less far from Calais and thus more "adapted", so that UMs would be more inclined to go there (§ 90 above). In the spirit of promoting the "effective" protection of UMs, the possibility of direct and permanent contact with the CWS should also be encouraged, as well as the creation of daytime reception areas (information, food, sanitary facilities) near UMs in transit.

Financing assured: YES