Moustahi v France: Multiple violations in the collective expulsion of unaccompanied children to the Comoros

Thursday, June 25, 2020

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 while 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 connected to 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 done not in an effort to act in the best interests of the children, but with a view of facilitating their speedy removal from the territory. The placement of the children in detention with other unrelated adults was also found to amount to a violation of Article 5(1) ECHR. As a result of these factors, 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 reasons to 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.

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.                               

Best interest of the child
Individual assessment
Unaccompanied minor