On 16 March 2022, the Committee on the Rights of the Child gave its decision in the case of K.S. and M.S. v Switzerland. Z. S. and A. S., both of Russian nationality and originally from Chechnya, submitted the communication on behalf of their children, K. S. and M. S. In April 2012, the applicants unsuccessfully applied for asylum before voluntarily returning to Russia and then moving back to Switzerland three years later. The family lodged a new application for asylum after which they were placed in the Seeben centre for asylum applicants whose claim have been rejected, where they argued they did not receive schooling or social assistance. The State Secretariat for Migration rejected their application and the Federal Administrative Court dismissed their appeal.
From birth, M.S. was almost deaf in both ears and needed a cochlear implant. K.S., who had not been heard in the previous proceedings, submitted his own asylum application which was not given a hearing and was rejected on the grounds that his case had been examined in his parent’s proceedings. The family were detained and returned to Russia and subsequently brought their complaint to the Committee on the Rights of the Child, on the basis of violations of Articles 2, 3, 4, 6.2, 8.2, 11, 12, 13, 14, 16, 17, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 34, 36 and 37 a) of the Convention and Article 7 c), e) f) and g) of the Protocol.
The Committee declared admissible the part of the communication that related to K.S.’s right to be heard under Article 12 of the Convention, and to the decision to return M.S. to the Russian Federation in view of the hearing impairment, in application of Articles 3, 6.2, 24 and 37 of the Convention. In its analysis of the merits, the Committee firstly recalled that States have an obligation not to remove a child to a country where there are reasonable grounds to believe that there is a real risk of irreparable harm to the child. The assessment of this risk should be carried out in an age and gender-sensitive manner and should also take into account the particularly serious consequences for children of inadequate food or health services. The best interests of the child must be a primary consideration.
The Committee expressed its concern that, despite the medical urgency, the Swiss authorities did not ascertain whether timely access to a cochlear implant for M.S. in the Russian Federation would be guaranteed, particularly given that the family would have to relocate outside Chechnya to ensure K.S.’s continued access to psychiatric treatment. Furthermore, the Committee noted that the authorities did not consider the additional support that M.S. would need as a child with a disability in the Russian Federation. In light of the above, the Committee considered that the authorities failed to take all necessary measures to ensure that M.S. had access to the urgent medical care and support necessary for her proper development. Accordingly, the Committee found that the State party had violated M.S.’s rights under article 24, read in conjunction with articles 3 and 6, paragraph 2, of the Convention.
As regards the argument that K. S. was not heard in asylum proceedings in contravention of Article 12 of the Convention, the Committee recalled that States parties must ensure that the views of the child are not only heard as a mere formality, but are taken seriously. It also recalled that in the context of immigration and asylum procedures children are in a particularly vulnerable situation, which is why it is urgent to ensure that their right to express their views on all aspects of immigration and asylum procedures is fully respected. It then held that the determination of the best interests of the child requires a separate assessment. The Committee therefore found that the lack of a direct hearing with K.S. constituted a violation of Articles 3 and 12 of the Convention.