ICCPR Case Digest

CCPR/C/126/D/2683/2015

Communication

2683/2015

Submission: 2015.09.04

View Adopted: 2019.07.17

S.A. v. Netherlands

Alleged violation of the rights of the child to access benefit payments, inadmissible as insufficiently substantiated, strong dissenting opinion finds a violation

Substantive Issues
  • Best interest of the child
  • Exhaustion of domestic remedies
  • Non-discrimination
  • Right to family
Relevant Articles
  • Article 2 - OP1
  • Article 23.1
  • Article 24.1
  • Article 26
  • Article 5.2 (b) - OP1
Full Text

Facts

The author is a stateless individual of Roma origin, born in the former Yugoslavia. She submitted the communication on behalf of herself and her minor daughter, a national of the Netherlands. The author claims that the state party has violated her rights under articles 23 (1) and 26, read in conjunction with article 23 (1).

The author is stateless and has no claim to any nationality. She was born in North Macedonia and moved to the Netherlands with her parents at age 14, where she is considered an illegal migrant. She suffers from poor mental health, including PTSD and BPD, and began living on her own in 2009. Her daughter has Netherlands nationality due to her fathers Dutch citizenship.

Soon after Z's birth, her father became violently abusive. Z and S.A. fled to an emergency shelter for asylum seekers, however they were expelled the same night. The staff made no attempt to provide emergency shelter or to contact child protection services. An unnamed individual later informed a women's shelter in Leiden, who came and collected the author and Z and offered them temporary shelter.

The author and Z lived there without any income for survival. Under national law, children are eligible for a child benefit however the author has no entitlement to social security as she has no work or residence permit. In 2012 the author applied for a child benefit on behalf of her child, however the application was declined as the national institutions determined she was not a permanent and therefore Z was ineligible, and further appeals were denied on the same basis. Later that year the municipal government began to offer Z general child benefits, however the author Z contined to live in extreme poverty.

In 2014 the author was granted a residence permit on the basis of non temporary humanitarian grounds due to individual circumstances, valid until 2019. 

Admissibility

The Committee noted that the author, who was born in present-day North Macedonia, has not substantiated the claim that she had no claim to any nationality or residence status elsewhere, or provided evidence to the State party of her inability to change her situation of statelessness so as to demonstrate that she could not access financial assistance to which she would be entitled as a national or resident of another country. 

The Committee also noted that the author had not shown that she had no access to financial assistance for Z through Z’s father, who is a national of the Netherlands, and that she did not pursue the father for child support. On this basis, the Committe considered that the author has not sufficiently substantiated her claims that the state party had violated her rights and those of Z under the Covenant, and subsequently the communication is inadmissible. 

Separate Opinions

Joint opinion of Committee members Tania María Abdo Rocholl, José Manuel Santos Pais, Hélène Tigroudja and Gentian Zyberi (dissenting)

  • Committee members Tania María Abdo Rocholl, José Manuel Santos Pais, Hélène Tigroudja and Gentian Zyberi refused to join the majority on the basis that the communication should be decided on the merits, which also reveals a violation of the author's rights.
  • The members noted that the social security benefits are accrued for the child, and not the parents, who simply raise such claims on behalf of their children. Further, the majority's finding that the author was reluctant to contact the father should be dismissed - as in the circumstances, the author has been found to be a victim of domestic violence and no negative consequence should be drawn from her reluctance to contact the father.
  • On this basis, the dissenting members considered that the communication should be admissible and concluded that there had been a violation of the author’s rights under articles 23 (1) and 26, read in conjunction with article 23 (1); and those of her daughter’s under articles 23 (1), 24 (1) and 26, read in conjunction with articles 23 (1) and 24 (1), of the Covenant.

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