Violation of the right of the child receive support from the state by stateless individuals, state party recommended to revisit case

Facts

The author is a prior Ukbekistan national who was stateless at the time of the communication. She submited on her own behalf and on behalf of her daughter, Y, born in 2008 in the Netherlands.

The author fled Uzbekistan in 2000 at the age of 11 for the Netherlands. She applied for asylum however this was denied. The authors daughter was born in 2008, and the author applied for numerous social and child benefits, which were also denied after a period of administrative issues. In 2009, the author recieved notifiation that she had not registered with the Uzbek Embassy within 5 years of leaving the country and therefore lost her Uzbek citizenship. 

Complaint

The author submitted that by denying her application for a child budget, the state party has violated her rights under articles 23 (1), 24 (3), and 26, read in conjunction with articles 23 (1) and 24 (1) of the Covenant; as well as Y’s rights under article 24 (1) of the Covenant. 

Admissibility

The Committee was not able to verify a formal declaration that the authors were stateless, and further that the author had not appeared to raise this claim with domestic authorities. On this basis, the Committee found they were precluded from examining her claim under article 24(3) of the Covenant. 

Merits

The Committee considered that the State party had not specified the kinds of special circumstances that allow individuals without residence permit to receive the child budget, taking into account that the author’s other applications for various types of subsistence-related benefits were denied.

The Committee further recalled that under article 24, every child has the right to special measures of protection due to her or his status as a minor, and further that in all decisions affecting a child, their best interests shall be a primary consideration and form an integral part of the protection afforded by article 24. The Committee noted that in this regardl states have a positive obligation to protect children from physical and psychological harm, which may include guaranteeing minimum subsistence in order to comply with the requirements under this article.

The Committee further considered that under article 24 (1) of the Covenant, the State party had a positive obligation to ensure that Y’s physical and psychological well-being was protected, including through guarantee of subsistence under circumstances where her mother had no access to work or other income. Accordingly, the Committee concluded that the facts before it disclosed a violation of Y’s rights under article 24 (1) of the Covenant.

Recommendations

Pursuant to article 2(3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, including making full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated to:

• review Y's circumstances with a view to ensuring her access to minimum subsistence, including re-evaluating the author's application for the child budget.
• provide adequate compensation for the violations suffered.
• take all steps necessary to prevent similar violations from occurring in the future.
• publish the present views of the Committee in the official language of the state party.

Separate Opinions

Joint opinion by Mr. Yuval Shany and Ms. Marcia V. J. Kran (concurring)

• Committee members Mr. Yuval Shany and Ms. Marcia V. J. Kran expressed agreement with the Committee that the state party had failed to indicate the kinds of special circumstances under which a child may be granted benefits without a residence permit. However, expressed doubt in the Committee's main conclusion.
• Mr. Yuval Shany and Ms. Marcia V. J. Kran noted that they would have based the the article 24 finding not on the refusal to support the kindgebonden budget program, but rather on the State party’s failure to identify any social security program that would support the child.
• The members considered that the actual exclusion of the author from eligibility to both regular and exceptional payments, were neither based in reasonable or objective criteria, leading to a violation of article 26 of the Covenant, and article 2(1) when read in conjunction with article 24. 

Implementation

The Committee requested that the state party provide an update outlining measures taken to give effect to the Committee's views within 180 days, or prior to 26 September 2019.