CRC: Deportation of a child of a same-sex couple to Russia violates obligations to protect the child and best interests

Friday, February 5, 2021

On the 5 February 2021, the Committee on the Rights of the Child adopted its views in relation to the communication (CRC/C86/D/51/2018) submitted by A.B, a Russian minor born on 27 June 2010, against Finland.

The author’s biological mother, V.B., is a lesbian who lives with both the author and her female partner, A.S. in Russia. They concealed the nature of their relationship out of fear of persecution and discrimination, given the hostile environment against the LGBT community. The family moved to Finland in 2015 and filed requests for international protection and humanitarian residence permits based on persecution and discrimination they had faced and the fear of further infringements on their rights. Their applications were rejected by the Finnish Immigration Service (FIS) on the grounds that the discrimination faced by the V.B. and A.S. and the bullying faced by A.B did not meet the threshold for persecution. The Helsinki Administrative Court confirmed FIS’s decision and a further appeal was dismissed by the Supreme Administrative Court. Consequently, the author, V.B and A.S applied for assisted voluntary return and left Finland in August 2017. Upon their return, V.B and A.S felt compelled to tell A.B. to conceal their relationship.
The author claims, inter alia, that Finnish authorities failed to conduct an adequate best interests assessment in the examination of the family’s application for asylum and residence permit in Finland, thereby violating article 3 CRC read in conjunction with article 22 CRC. A.B further submits that the decision to deport the family was contrary to his best interests within the meaning of Article 3 CRC, due to the risk of maltreatment.
The Committee recalled that in order to demonstrate that the best interests have been assessed and taken into primary consideration, any decision concerning the child should be motivated, justified and explained. The motivation should clearly state all the factual circumstances including what elements were found relevant in the assessment and how they have been weighted to determine the child’s best interests. The Committee observed that the formal and general reference  to best interests of A.B. by the FIS, without considering his views, reflects a failure to consider specific circumstances surrounding the case and assess the existence of a risk of a violation of the CRC against such specific circumstances.
The Committee also noted the failure to properly consider the risk of violence and harassment towards A.B upon his return to Russia. In particular, it noted the lack of consideration of the young age of A.B at the time of the decision and the permanent impact that constant bullying and stigmatization based on his mother’s sexual orientation may have on him. In light of these things, the  Committee concluded that Finland had failed to adequately take into account the best interests of the child as a primary consideration and had failed to protect him against a real risk of irreparable harm in case of his return to Russia.

Photo: Matt Kowalczyk, August 2010, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Assessment of facts and circumstances
Best interest of the child
Inhuman or degrading treatment or punishment
Sexual orientation