Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, NETHERLANDS (KINGDOM OF THE); [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.19-08551(E)
Human Rights Committee
Views adopted by the Committee under article 5 (4) of the
Optional Protocol, concerning communication No.
2498/2014*, **, ***
Communication submitted by:
Ekaterina Abdoellaevna, on behalf of herself and
her minor daughter, Y (represented by counsel,
W.G. Fischer)
Alleged victims:
The author and Y
State party:
The Netherlands
Date of communication:
31 July 2014 (initial submission)
Document references:
Decision taken pursuant to rule 97 of the
Committee’s rules of procedure, transmitted to
the State party on 10 December 2014 (not issued
in document form)
Date of adoption of Views:
26 March 2019
Subject matter:
Access of stateless individuals to child benefits
Procedural issue:
Admissibility – exhaustion of domestic remedies
Substantive issues:
Best interests of the child; children’s rights;
discrimination; discrimination on other grounds;
family rights; measures of protection; nationality;
stateless persons
Articles of the Covenant:
23 (1), 24 (1) and (3) and 26, read in conjunction
with 23 (1) and 24 (1)
Article of the Optional Protocol:
5 (2) (b)
1.
The author of the communication is Ekaterina Abdoellaevna, who was born in
Uzbekistan on 11 January 1989 and is now stateless. She submits the communication on
behalf of herself and her minor daughter, Y, born on 15 May 2008 in the Netherlands. The
author claims that the State party has violated her and Y’s rights under articles 23 (1), 24 (3)
and 26, read in conjunction with articles 23 (1) and 24 (1), of the Covenant, and Y’s rights
* Adopted by the Committee at its 125th session (4–29 March 2019).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Yadh Ben Achour, Ilze Brands Kehris, Christopher Arif Bulkan, Ahmed
Amin Fathalla, Shuichi Furuya, Christof Heyns, Bamariam Koita, Marcia V.J. Kran, Duncan Laki
Muhumuza, Photini Pazartzis, Hernán Quezada Cabrera, Vasilka Sancin, José Manuel Santos Pais,
Yuval Shany, Hélène Tigroudja, Andreas Zimmermann and Gentian Zyberi.
*** A joint opinion by Committee members Marcia V.J. Kran and Yuval Shany (concurring) is annexed
to the present Views.
United Nations
CCPR/C/125/D/2498/2014
International Covenant on
Civil and Political Rights
Distr.: General
24 May 2019
Original: English
CCPR/C/125/D/2498/2014
2
under article 24 (1). The Optional Protocol entered into force for the State party on 11
March 1979. The author is represented by counsel, W.G. Fischer.
Factual background
2.1
In 2000, at the age of 11, the author fled with her family from Uzbekistan to the
Netherlands. On 18 November 2000, the author’s parents and brother applied for asylum,
including on behalf of the author. On 6 March 2002, the State Secretary of Justice of the
Netherlands denied the application. Appeals against this decision were declared unfounded
by the District Court of The Hague on 12 October 2004, and then by the Administrative
High Court on 9 March 2005.
2.2
The author and her family subsequently left for Norway and applied for asylum
there. Shortly thereafter, they were returned to the Netherlands. On 18 September 2006, the
author applied in her own name for asylum in the Netherlands. On 19 September 2006 and
4 January 2007, she was interviewed by the Immigration Service. On 15 May 2008, Y was
born. On 3 July 2008, the State Secretary of Justice denied the author’s asylum application.
In 2009, the District Court of The Hague rejected her appeal as unfounded, and the author
did not appeal further.
2.3
On 24 March 2009, the State Secretary of Justice denied the author’s application for
relief under the Ranov amnesty scheme, which was set up to settle the legacy of the former
Aliens Act. However, on 5 February 2010, the District Court of The Hague deemed that the
author’s application was well founded and annulled the State Secretary’s decision. As a
result, the author was permitted to stay in the Netherlands pending the appeal by the State
Secretary of Justice against the District Court’s decision. On 12 November 2010, the
Council of State annulled the decision of the District Court.
2.4
On an unspecified date, the author rented accommodation in The Hague, which was
paid for by third parties. Initially, she lived alone, but her parents and brother joined her
following their eviction from an asylum centre. Neither the author nor her family members
had a work permit or access to social benefits, due to a law establishing the so-called
linkage principle. Under this principle, access to social services is contingent upon
possession of a residence permit. The author and her family depended on others for food,
housing and clothing.
2.5
On 14 April 2009, the author received an official notification that she had lost her
Uzbek citizenship because she had not registered with the Uzbek Embassy within five years
of leaving Uzbekistan. 1 The author attempted to leave the Netherlands and return to
Uzbekistan, with the assistance of the Repatriation and Departure Service of the
Netherlands. However, the authorities of Uzbekistan refused to issue the author a certificate
of return or travel documents. The author maintains that the Repatriation and Departure
Service was notified of the author’s loss of Uzbek nationality in October 2009.
2.6
In 2011 and 2012, the author submitted various applications for housing, social and
child benefits. Specifically, on 14 June 2011, she applied to the municipality of The Hague
for shelter and social assistance. Her applications were rejected in July 2011, and the
District Court rejected the author’s appeal on 18 July 2012. The author’s appeal regarding
her application for shelter was pending before the Administrative High Court at the time the
present communication was submitted. In addition, on 3 April 2014, the author applied to
the State Secretary for shelter. On 22 April 2015, this application was denied, and on 25
January and 23 March 2016, the author’s subsequent appeals were deemed to be ill-founded.
In the same month of March 2016, however, the author and her family were offered shelter
by the State Secretary, but it only has facilities that are necessary.
2.7
The author applied to the Central Agency for the Reception of Asylum Seekers for
shelter and social assistance on 14 June 2011. That application was denied and, on 19
December 2012, the administrative jurisdiction division of the Council of State upheld the
1 The author provides certificates from the Embassy of Uzbekistan in Belgium dated 14 April 2009, 25
May 2011, 14 March 2012 and 12 July 2013. The certificates state that the author lost her Uzbek
nationality because she had not lived in Uzbekistan since 2000 and was not registered at the Uzbek
Embassy. In view of that, she could not be granted an Uzbek passport or a return visa.
CCPR/C/125/D/2498/2014
3
lower court’s decision, finding that there was no obligation under international law to
provide shelter for stateless persons, including minors. This decision cannot be appealed.
2.8
On 9 February 2012, the author applied to the Central Agency for the Reception of
Asylum Seekers for money for Y. The application was denied and, on 5 October 2012, the
administrative jurisdiction division of the Council of State rejected the author’s appeal
against the decision denying her application.
2.9
On 15 June 2011, the author applied to the organization that implements national
insurance schemes in the Netherlands, the Sociale Verzekeringsbank, for general (non-
means-tested) child benefits (kinderbijslag). On 13 June 2012, her application was denied.2
On 10 April 2013, the District Court of The Hague deemed her appeal against the decision
unfounded. The author’s appeal against that decision, submitted on an unspecified date, was
pending at the time the communication was submitted.
2.10
On 15 June 2011, the author also applied to the benefits section of the Tax and
Customs Administration for a (means-tested) child budget (kindgebonden budget). On 13
June 2012, the tax authorities rejected her application. The author objected to that decision,
arguing that the denial of the benefits constituted a violation of the Convention on the
Rights of the Child and of article 8 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (the European Convention on Human Rights). On 27 August
2012, the tax authorities dismissed the author’s objection, on the ground that the author had
not demonstrated special circumstances that would have allowed a child budget to be
granted to an individual without a residence permit. On 19 February 2013, the District
Court of The Hague declared the author’s appeal against the decision unfounded, finding
that the denial of the child budget to aliens without residence permits could be
discriminatory only when it concerned persons who could demonstrate very special
circumstances. In the case of the author, the Court found no special circumstances, as she
had not submitted proof of her statelessness and of her inability to leave the Netherlands.3
On 5 February 2014, the Council of State rejected the author’s appeal against the District
Court’s decision. The Council found no violation of the author’s right to family life and to
non-discrimination under articles 8 and 14 of the European Convention on Human Rights.
It did not find special circumstances that could justify granting the author a child budget. In
addition, it argued that the child budget was not intended to guarantee its beneficiaries a
subsistence level of income. With regard to the right of the child to an adequate standard of
living under the Convention on the Rights of the Child, the Council considered that
children’s rights were not at stake, as the beneficiaries of the budget were the parents, not
the children.
2.11
On 28 October 2009, the author applied for a “no-fault” residence permit, claiming
that she was stateless through no fault of her own. On 3 November 2009, the application
was denied. On 20 November 2009, the District Court of The Hague declared the author’s
application for review unfounded. On 21 August 2012, the author filed another application
for a no-fault residence permit, which was denied by the State Secretary of Justice on the
same date. 4 On 18 July 2013, the District Court of The Hague denied the author’s
application for review.5
2.12
In December 2012, the Advisory Committee on Migration Affairs published a report
entitled No Country of one’s own, which concerned protection for stateless persons under
international treaties. The Advisory Committee considered that the Netherlands was not
2 According to the State party’s initial observations, the application for general child benefits was
denied because the author was not a lawful resident and was therefore not entitled to the benefits.
3 In its initial observations, the State party indicates that, according to the District Court of The Hague,
“the argument that the situation involved statelessness and the impossibility of leaving the
Netherlands had not been – sufficiently – substantiated. Nor did the financial situation constitute a
special circumstance, because it had not been argued or demonstrated that not granting child budget
would lead to a humanitarian emergency situation.”
4 The information relating to this application was provided by the State party.
5 According to the translation provided by the author, the District Court found that, although the author
was stateless, she had not met the burden of proving that she was not responsible for the situation.
CCPR/C/125/D/2498/2014
4
fully meeting its obligations under treaties relating to statelessness, including with regard to
children who are born stateless.
2.13
On 27 May 2013, the author applied, on behalf of Y, for a long-term child residence
permit, also known as a “children’s pardon”.6 On 3 July 2013, the State Secretary of Justice
rejected the application on the ground that Y had lived in the Netherlands for only four
years before the passage of the law establishing the children’s pardon, instead of the
requisite five years.7 On 8 October 2014, the State Secretary of Justice denied the author’s
appeal, but granted the author, her parents, her brother and Y a one-year residence permit
on the ground that all members of the family were unable to leave the Netherlands through
no fault of their own. In March 2015, the District Court of The Hague denied the author’s
appeal regarding the children’s pardon. The author applied for an extension of her one-year
residence permit and, at the time the communication was submitted, was awaiting a
response.8
2.14
The author maintains that she has exhausted domestic remedies with regard to her
claims of violations of her right to family life and non-discrimination and of the rights of
her child. She states that she has not submitted the matter for consideration by another body
of international investigation or settlement.
The complaint
3.1
The author submits that, by denying her application for a child budget, the State
party violated her and Y’s 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).
With respect to article 23 (1), the author asserts that, in conformity with the jurisprudence
of the European Court of Human Rights,9 the Dutch courts have found that payment of the
child budget may be regarded as a discharge of the State’s positive obligation to protect
family life under article 8 of the European Convention of Human Rights. The author adds
that the child budget is similarly protected under article 23 (1) of the Covenant, and that the
denial of her application amounts to a violation of the right to family life. The linkage
principle should not be rigidly applied to stateless individuals, especially when minors are
involved, as is the case here. It is well established under Dutch law that the linkage
principle is not set in stone and cannot prevail when violations of human rights are at
stake.10 The author lost her Uzbek nationality at the age of 17. As a result, Y was born
stateless in the Netherlands. The author has submitted several official documents from the
Uzbek authorities to demonstrate her loss of nationality. The Repatriation and Departure
Service has acknowledged that, because of the author’s loss of nationality, she cannot be
repatriated or expelled.11 In addition, the author and Y cannot formally be declared stateless
because the Netherlands has no such procedure. Thus, they cannot access the special
protection afforded to stateless persons under article 32 of the Convention relating to the
Status of Stateless Persons and the Convention on the Reduction of Statelessness, to which
the Netherlands is a party. This amounts to a violation of the author’s and Y’s rights under
article 24 (3) of the Covenant. Because the author and Y were unable to solve their
6 The State party indicates that this procedure is a transitional scheme for long-term resident children.
7 The State party indicates in its initial observations that, on 6 September 2013, the author again applied
for a residence permit for Y under the transitional scheme. The application was denied on 2
December 2013 on the same grounds as before. The author contested both decisions in her appeal.
8 The State party notes in its initial observations that the residence permit was extended until 13 June
2016.
9 The author cites European Court of Human Rights, Niedzwiecki v. Germany (application No.
58453/00), judgment of 25 October 2005, para. 31.
10 The author cites Centrale Raad van Beroep (Central Appeals Tribunal), case No.
ECLI:NL:CRVB:2006:AV0197, judgment of 24 January 2006.
11 The author provides a translation of a letter from the Repatriation and Departure Service dated 24 July
2013. The letter refers to the certificate issued by the Embassy of Uzbekistan in Belgium on 12 July
2013 stating that the author had lost her Uzbek nationality.
CCPR/C/125/D/2498/2014
5
residency issues, they fell into hardship amounting to a violation of their right to family
life.12
3.2
Regarding the claim under article 24 (1) of the Covenant, whereas the State party
maintains that children lack legal standing with regard to the child budget because it is paid
to the parent, the child budget should in fact be regarded as a measure of protection
required by Y’s status as a minor. Children are afforded protection because they are
considered to be vulnerable on account of their age. As a result, when a claim to a child
budget is at stake, the interests and rights of the child should be taken into account. Indeed,
the Supreme Court of the Netherlands has acknowledged that family benefits such as
general child benefits are intended to improve the position of the child.13 This reasoning
should also apply to the child budget, and by deeming that the budget accrued to the author
and not to Y, the Dutch authorities failed to consider Y’s rights or her situation as a
stateless minor with no control over her immigration status. Y’s best interests should have
been paramount in the assessment of the claim.
3.3
Concerning the claim under article 26, read in conjunction with article 23 (1), of the
Covenant, the denial of the child budget was discriminatory with respect to the family life
of the author and Y, because the State party treated them differently from its own citizens
due to their status as irregular migrants. However, they did not choose to be stateless, as the
author was only 11 years old when her parents fled Uzbekistan, Y was born stateless and
both the author and Y were unable to leave the Netherlands due to this statelessness. Thus,
there is no “weighty reason” – referring to the jurisprudence of the European Court of
Human Rights – that could justify their different treatment.
3.4
The denial of the child budget on the basis of the author’s lack of a residence permit
was in violation of article 26, read in conjunction with article 24 (1), of the Covenant, and
was discriminatory with regard to Y, because the State party’s authorities did not make any
distinction between the situation of the author and that of Y. This distinction is crucial,
because the interest of the parent differs from the interest of the child. Children, especially
very young children, are unable to influence their parents’ choices.14
State party’s observations on admissibility and the merits
4.1
In its observations dated 24 July 2015 and 12 January and 9 June 2016, the State
party provides additional information on two types of child allowances provided for under
Dutch law: the child budget (kindgebonden budget), which is means tested, and general
child benefits (kinderbijslag). Neither type of allowance is intended to serve as a general
income support scheme. General child benefits were established under the General Child
Benefit Act of 1962. Under this Act, insured persons who care for or support minor
children are entitled to general child benefits. Such benefits are paid per household and
represent a contribution towards related costs; recipients are not meant to fully reimburse
these costs. General child benefits are not awarded on the basis of the parents’ income.
4.2
In contrast, the child budget, which was established under the Child Budget Act of
2007, is means tested, meaning that the amount of the budget is inversely related to the
parents’ ability to pay the costs of raising and caring for children. The child budget may be
paid to parents earning a low annual income, and its amount depends on the number of
children and their ages. It accrues to the parent, not to the child. It was introduced as part of
a social security provision after it had become apparent that many low-income families did
not owe the minimum income tax required in order for them to benefit from the existing
child tax credit. Aliens who have not been admitted to the Netherlands are not eligible for
general child benefits or the child budget, due to the principle of linking social entitlements
to residence status.
12 The author provides a letter from an individual, Z, dated 18 July 2011. It states that Z had been
financially supporting the author and her family in The Hague for a few years, but was no longer able
to assist them, except by offering them food.
13 The author cites Supreme Court of the Netherlands, case No. ECLI:NL:HR:BW7740, judgment of 23
November 2012, sect. 3.5.10.
14 The author refers to Derksen v. Netherlands (CCPR/C/80/D/976/2001).
CCPR/C/125/D/2498/2014
6
4.3
The linkage principle, established under the Benefit Entitlement (Residence Status)
Act of 1998, aims primarily to ensure that an alien without an unconditional residence
permit cannot claim entitlement to public provisions. The Act provides for three exceptions
to this rule, in that public provisions relating to education, health care and legal aid are
available to all aliens, including those without a residence permit.15
4.4
Moreover, in the Netherlands, the most basic provisions, such as medically
necessary health care, are available to every alien residing in the country unlawfully.
Although lawfully resident aliens are not entitled to benefits through the regular social
security system, alternative provisions are available to them. Aliens awaiting a decision on
an asylum application are provided with access to reception facilities, and can obtain a
weekly financial allowance and other financial provisions. Aliens who are not asylum
seekers are given a financial allowance and have access to a medical expenses scheme to
provide for the necessary means of subsistence. Reception facilities may be available if
there is a prospect of the individual leaving the Netherlands. Specific financial provisions
have been made for minors, who constitute a particularly vulnerable group. Extra reception
facilities are available to vulnerable aliens residing in the country illegally, including
unaccompanied minors and aliens with medical problems whose legal remedies have been
exhausted. Following a Supreme Court decision of 21 September 2012, minor aliens who
are not lawfully resident in the Netherlands and live with their family are offered shelter in
a family accommodation centre if this is necessary to avert a humanitarian emergency. The
families receive shelter until they depart for their country of origin, or until every child in
the family has reached the age of majority.
4.5
The State party adds to the factual background of the complaint and acknowledges
that, after living outside Uzbekistan for five years, the author lost her Uzbek nationality. On
8 October 2014, the author and Y were granted ex proprio motu a temporary regular
residence permit, valid from 13 June 2014 to 13 June 2015, on temporary humanitarian
grounds, on the basis of the no-fault policy. The residence permit was extended to 13 June
2016. It was granted after the Repatriation and Departure Service had issued a
memorandum on 13 June 2014 expressing the view that the author and her family were
unable to leave the Netherlands through no fault of their own. With this memorandum, the
cumulative conditions for granting a residence permit on a no-fault basis were met.
4.6
Regarding general child benefits, the State party notes that, in mid-2014, due to an
error in which one file was mistaken for another, the author was erroneously considered to
be a lawful resident and, in a decision dated 1 December 2014, the author was granted
general child benefits and was paid retroactive statutory interest. This error came to light
during the examination of the present communication. On 23 July 2015, the decision
granting general child benefits was revoked, although repayment was not requested.
4.7
The State party considers that the communication is inadmissible under article 5 (2)
(b) of the Optional Protocol on the basis that the author has not exhausted domestic
remedies, as her appeal against the decision of the District Court of The Hague dated 10
April 2013, concerning her application for general child benefits, remains pending. It is
emphasized that entitlement to the child budget is contingent upon on entitlement to general
child benefits.
4.8
Moreover, the State party considers that the communication is without merit. Article
23 (1) of the Covenant does not require a child budget to be provided. As the refusal to
grant the child budget is not an obstacle to family life, the issue of government interference
or failure to act with respect to the life of the author and Y as a family unit does not arise.
Contrary to the author’s argument, the Covenant does not create an affirmative obligation
to protect the family unit by providing financial assistance, let alone any specific child
budget or child benefit. Neither general child benefits nor the child budget is a general
income support scheme providing families with children with a minimum subsistence
income payment, even if the individuals concerned have resided in the country for a long
15 The State party adds that several additional exceptions to the rule exist for various categories of
persons, including suspected victims of trafficking in women.
CCPR/C/125/D/2498/2014
7
period with the knowledge of the State. Even if article 23 did create affirmative obligations,
these would relate more to measures to protect family unity and family reunification.
4.9
It is clear from the Committee’s general comment No. 17 (1989) on the rights of the
child that article 24 of the Covenant concerns protecting children against harm to their
physical or psychological well-being, and that parents have the primary responsibility,
including financial responsibility, for their children. The author acted on this responsibility
by providing herself with a place to live in The Hague from 15 June 2011, the date on
which she applied for the child budget, to 26 March 2014. It is emphasized that need is not
a criterion for being granted the benefit, and that basic provisions are available to unlawful
resident aliens in the country. Indeed, on 26 March 2014, the municipality of The Hague
offered shelter to the author and Y and, on 2 May 2014, they were offered places at a
family location. Since December 2014, they have been provided with what is termed
“regular housing”. Moreover, the author’s allegations regarding an alleged lack of
accommodation are irrelevant to the subject matter of the communication. The cases cited
by the author do not support the notion that article 24 of the Covenant creates specific child
rights that indirectly arise from government decisions regarding the child’s parents. It is
emphasized that neither type of child benefit constitutes an entitlement of the child. For the
same reason, the Netherlands made a reservation to article 26 of the Convention on the
Rights of the Child, to the effect that the provision does not imply an independent
entitlement of children to social security, including social insurance. Both general child
benefits and the child budget fall within the scope of this reservation. In the Netherlands, a
minor has independent social security entitlements only in exceptional situations.
4.10
Regarding article 26 of the Covenant, distinctions based on residence status are by
no means unusual in the context of human rights treaties.16 Moreover, article 26 of the
Covenant matches the scope and content of article 14 of the European Convention on
Human Rights. These provisions do not prohibit all forms of unequal treatment; rather, they
prohibit only those forms of unequal treatment that qualify as discrimination.
Discrimination arises in the absence of a sufficiently objective and reasonable justification,
a legitimate aim and reasonable and proportionate means to achieve that aim.
4.11
According to the jurisprudence of the European Court of Human Rights, it is only in
situations where discrimination is based exclusively on nationality that very weighty
reasons must exist to establish an objective and reasonable justification. In the author’s case,
the distinction is based instead on residence status and is sufficiently justified, given the
objective and reasonable justification for treating a country’s own nationals differently from
unlawfully resident aliens with regard to social entitlements. Indeed, an unqualified
obligation to treat unlawfully resident aliens equally with a country’s own nationals and
lawful residents would deprive a State of the ability to pursue an immigration policy to
protect the country’s economic well-being. It is therefore both objective and reasonable that
the State party limits entitlement to general child benefits and the child budget to lawful
residents. According to the European Court of Human Rights, States have the right to
control the entry, residence and expulsion of aliens, and measures aimed at ensuring
effective immigration control may serve a legitimate aim of preserving the economic well-
being of a country.17 Neither the European Convention on Human Rights nor any United
Nations treaty protects entitlements to child benefits.
4.12
Concerning the argument that, due to the statelessness of the author and Y, no
legitimate aim is served by the distinction made in the eligibility criteria for child benefits,
the State party observes that Dutch law allows for the granting of residence permits to
individuals who have demonstrated that they have become stateless through no fault of their
own. The author did not have such a residence permit in 2011, when she applied for the
child budget. Thus, at that time, her situation did not differ from that of other unlawfully
resident aliens. Moreover, at the time of application, she was under an obligation to leave
16 The State party cites, inter alia, article 1 of the European Convention on Social and Medical
Assistance and article 1 (1) of Protocol No. 7 to the Convention for the Protection of Human Rights
and Fundamental Freedoms.
17 The State party cites European Court of Human Rights, Nacic and others v. Sweden (application No.
16567/10), judgment of 15 May 2012, para. 79.
CCPR/C/125/D/2498/2014
8
the Netherlands pursuant to a judicial decision of the highest instance. If all types of
financial benefits were granted to unlawfully resident aliens and stateless individuals –
regardless of the reasons for their statelessness – this would result in a semblance of legality
and the establishment of such a strong legal position that it would be virtually impossible to
expel them. Furthermore, that would render it unnecessary for aliens to apply for a
residence permit through standard procedures.
4.13
With regard to the author’s argument that Y has suffered indirect discrimination
because the child budget, while paid to the author, was intended for her, the State party
reiterates that the contribution is granted to the parents, who are free to spend it as they
wish, without any obligation to spend it on child welfare. Moreover, Y has not been subject
to discrimination, as all parents and their children who are unlawful residents are ineligible
for the general child benefit and the child budget under the Benefit Entitlement (Residence
Status) Act.
Author’s comments on the State party’s observations on admissibility and the merits
5.1
In comments dated 1 December 2015 and 18 April 2016, the author submits that the
pending proceedings concerning her application for general child benefits are irrelevant,
because her application for the child budget was filed separately, and the two kinds of
benefit are not connected. In the final decision of the Council of State on the application for
the child budget, there is no reference to the pending case concerning general child benefits.
The Council of State did not consider that the pending case rendered inadmissible the
matter concerning the child budget.
5.2
In its observations on the merits, the State party disregarded both the poverty faced
by the author and Y and Y’s interests as a vulnerable child. These circumstances warrant a
more flexible application of the linkage policy. The three exceptions to the linkage
principle cited by the State party (relating to education for minors, health care in life-
threatening situations and legal aid as services accessible to individuals without a residence
permit) do not ensure fulfilment by the State party of its obligation to protect the interests
of the child. The author and Y subsist on an income level far below the Dutch poverty
threshold, and they have no means to change their situation. Whereas the State party
maintains that basic provisions were available to them, that is not an accurate reflection of
their circumstances, and they were fully dependent on third parties for housing, food and
clothing. The State party did not intervene, despite multiple confirmations of statelessness
by the Uzbek authorities. Only on 2 May 2014 did a representative of the State party offer
the author and Y shelter in a rudimentary family facility. The State party does not contest
the destitution the author and Y face.
5.3
The State party’s position that the child budget is not based on need is incorrect, as
the State party’s explanatory memorandum to the Child Budget Act clearly refers to the
child budget as a tegemoetkoming, which translates as a “reimbursement” or “allowance”
toward the cost of children. It is means tested, which assumes a need to reimburse the costs
of children.
5.4
Although the State party argues that, in furtherance of the legitimate aim of
immigration control, it is reasonable to exclude the author and Y from child benefits, the
State party was informed many years ago that they are stateless, and it does not
substantively address its obligations in relation to their statelessness in its observations. The
State party does not acknowledge that it could have remedied the authors’ statelessness
through its own policies.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 93 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
CCPR/C/125/D/2498/2014
9
6.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of
international investigation or settlement.
6.3
The Committee notes the author’s claims in connection with the denial of the child
budget on behalf of herself and Y under articles 23 (1) and 26, read in conjunction with
articles 23 (1) and 24 (1), of the Covenant, and on behalf of Y under article 24 (1). The
Committee also notes that the State party contests the author’s claim that she has exhausted
all available domestic remedies, based on her pending appeal regarding her application for
general child benefits. In this regard, the Committee notes the State party’s information that
entitlement to the child budget is contingent upon on entitlement to general child benefits.
The Committee observes, however, that the author had appealed the negative decision of
the District Court of The Hague of 10 April 2013 concerning her application for general
child benefits before she submitted the present communication on 17 September 2014. The
Committee recalls that the requirement of article 5 (2) (b) of the Optional Protocol to
exhaust all available domestic remedies is not the rule where the application of the
remedies is unreasonably prolonged. In the absence of information explaining the delay of
over four years in processing the author’s appeal concerning general child benefits, the
Committee considers that the application of that remedy has been unreasonably prolonged.
It notes the author’s argument that, when rendering a final merits decision concerning the
child budget application, the Council of State did not refer to the pending general child
benefits application and did not consider it an obstacle to admissibility. Given these
circumstances, the Committee considers that the sole fact that the author has not
demonstrated entitlement to general child benefits does not preclude the Committee from
examining her claims relating to entitlement to the child budget. Thus, in the absence of
other objections from the State party regarding the exhaustion of domestic remedies by the
author, the Committee considers that article 5 (2) (b) of the Optional Protocol does not
constitute a barrier to the admissibility of the aspects of the communication pertaining to
the denial of the child budget to the author.
6.4
The Committee also notes the author’s claim under article 24 (3) of the Covenant
that she and Y are unable to obtain a formal declaration that they are stateless. The
Committee observes, however, that the author does not appear to have raised this claim
before the domestic authorities. The Committee therefore considers that it is precluded by
article 5 (2) (b) from examining the author’s claim under article 24 (3) of the Covenant.
6.5
The Committee considers that the author has sufficiently substantiated her claims on
behalf of herself and Y under articles 23 (1) and 26, read in conjunction with articles 23 (1)
and 24 (1), of the Covenant, and on behalf of Y under article 24 (1), for the purposes of
admissibility. It therefore declares the communication admissible and proceeds with its
consideration of the merits.
Consideration of the merits
7.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
7.2
The Committee notes the author’s claims that, by rejecting her application for a
child budget, the State party failed to provide measures of protection required by Y on
account of her status as a minor under article 24 (1) of the Covenant. In this matter, the
Committee is not called upon to decide generally upon the obligations of States parties to
provide child benefits, nor does it decide the extent to which it is justified to limit
entitlement to such benefits based on residency status. Rather, the Committee limits itself to
the question of whether, in the particular circumstances of this case, the denial of the
author’s application for the child budget violated Y’s rights under article 24 (1).
7.3
The Committee recalls that, under article 24, every child has a right to special
measures of protection because of her or his status as a minor.18 It also recalls that the
principle that, in all decisions affecting a child, the child’s best interests shall be a primary
18 See the Committee’s general comment No. 17, para. 4, and Mónaco de Gallicchio v. Argentina
(CCPR/C/53/D/400/1990), para. 10.5.
CCPR/C/125/D/2498/2014
10
consideration, forms an integral part of every child’s right to measures of protection, as
required by article 24 (1).19 The States parties to the Covenant 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 of article 24 (1).
7.4
As a preliminary matter, the Committee notes the State party’s position that, because
the child budget is paid to the parent and may be spent as the parent wishes, including on
items unrelated to childcare, Y’s rights under article 24 (1) are not implicated by the denial
of the child budget. The Committee observes, however, that, according to the State party’s
submission, the amount of the child budget is inversely related to the parents’ ability to pay
the costs of raising and caring for children and is also dependent on the number and age of
children per household. The Committee also notes the information provided by the State
party in its fourth periodic report to the Committee on the Rights of the Child, stating that
the child budget (kindgebonden budget) is a contribution towards the maintenance costs of
a child aged under 18 (CRC/C/NLD/4, para. 175). The Committee considers that, while the
parent is the direct recipient of the child budget, both the parent and the child benefit from
it. Noting the State party’s position that the Committee’s general comment No. 17 limits
article 24 protections to those relating to the physical or psychological well-being of
children, the Committee observes that the absence of social protection for children may in
certain circumstances adversely affect their physical and psychological well-being.
7.5
The Committee notes the State party’s position that, under Dutch law, non-resident
aliens are not entitled to the child budget. The Committee also notes, however, that,
according to the decisions issued by the domestic authorities, the child budget may in
special circumstances be granted to individuals without a residence permit. Nevertheless, in
the author’s case, the domestic authorities considered that she had not demonstrated such
special circumstances, noting in particular that she had not substantiated her allegations that
she was stateless and was unable to leave the Netherlands, and had not argued or shown
that the failure to grant the child budget would lead to a humanitarian emergency situation.
The domestic authorities based their decision on the notion that the child budget was not
intended to guarantee a subsistence level of income to the beneficiaries and on the principle
that the beneficiary of the budget is the parent, not the child.
7.6
In evaluating this reasoning through the lens of article 24 (1) of the Covenant, the
Committee observes that the State party has not indicated the kinds of special
circumstances under which the child budget may be granted to individuals without a
residence permit. It is not clear whether any criteria or guidelines exist, in the Child Budget
Act or elsewhere, according to which such special circumstances are determined in such a
manner as to ensure that the child’s best interests form a primary consideration. While the
State party’s authorities maintained that the author had not substantiated her allegations of
statelessness and inability to leave the Netherlands, the Committee notes that the author
claims to have informed the State party’s authorities of her statelessness in 2009. In this
regard, the Committee notes the certificates dated 14 April 2009, 25 May 2011, 14 March
2012 and 12 July 2013 from the Embassy of Uzbekistan in Belgium, stating that the author
had not lived in Uzbekistan since 2000, had lost her Uzbek nationality and could not be
granted a passport or a return visa. The Committee notes that the State party does not
contest having received these certificates and observes that the most recent of them was
acknowledged in a letter dated 24 July 2013 by the State party’s Repatriation and Departure
Service, which issued a memorandum on 13 June 2014 acknowledging that the author and
her daughter were unable to leave the Netherlands through no fault of their own. The
Committee notes that the author applied for the child budget in 2011 and that a final
decision on that matter was reached in 2014. The State party has not indicated the steps the
author could have taken and failed to take in order to substantiate her statelessness and
inability to leave the Netherlands during the relevant period. In addition, the Committee
observes that the State party does not contest the author’s assertions that she and Y had no
choice in the decisions that led to their statelessness. In this regard, the Committee notes the
author’s statements that she fled Uzbekistan with her family at the age of 11 and became
stateless at the age of 17, and that Y was born stateless in the Netherlands. The Committee
19 Bakhtiyari and Bakhtiyari v. Australia (CCPR/C/79/D/1069/2002), para. 9.7.
CCPR/C/125/D/2498/2014
11
also notes that, although the author’s first two applications for a residence permit on the
basis of no-fault statelessness were denied in 2009 and 2012, she was eventually granted
such a permit in 2014, and it has since been renewed. Thus, the State party’s own
authorities have determined that the author is stateless through no fault of her own.
7.7
Regarding the argument of the domestic authorities that the failure to pay the child
budget would not lead to an emergency humanitarian situation, the Committee notes the
State party’s observation that, when the author applied for the child budget in 2011, she had
found a place to live. However, the Committee also notes the statement provided by the
author in 2011 from an individual claiming that the author was reliant on his financial
support, which he was unable to continue providing. The Committee observes that the State
party has not contested the author’s claims that, during the relevant period, she had to rely
on charity to meet basic needs. With respect to the State party’s position that the author had
the primary responsibility for providing for Y, the Committee notes that the author had no
access to the formal labour market during the relevant period, due to her lack of residence
and work permits. The Committee notes the State party’s position that the child budget was
not intended to guarantee a subsistence level of income, but also notes that the author did
not receive any other types of financial assistance from the State party during the relevant
period that would provide for Y’s subsistence. With respect to the argument of the State
party’s authorities that the beneficiary of the child budget is the parent and not the child, the
Committee refers to its conclusions in paragraph 7.3 above.
7.8
In light of the totality of the aforementioned circumstances, including the
vulnerability of the author and Y, both of whom are stateless through no fault of their own,
the Committee considers that the State party has not specified the kinds of special
circumstances that allow individuals without a residence permit to receive the child budget,
taking into account the fact that the author’s other applications for various types of
subsistence-related benefits were denied. The Committee further considers 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 a guarantee of
subsistence under circumstances where her mother had no access to work or other income.
Accordingly, the Committee concludes that the facts before it disclose a violation of Y’s
rights under article 24 (1) of the Covenant.
7.9
In view of the foregoing, the Committee does not deem it necessary to further
examine the author’s claims concerning the same matter under articles 23 (1) and 26, read
in conjunction with articles 23 (1) and 24 (1), of the Covenant.
8.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view
that the information before it discloses a violation by the State party of Y’s rights under
article 24 (1) of the Covenant.
9.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to
provide Y with an effective remedy. This requires it to make full reparation to individuals
whose Covenant rights have been violated. Accordingly, the State party is obligated, inter
alia, to (a) review Y’s circumstances with a view to ensuring her access to minimum
subsistence, including by re-evaluating the author’s application for the child budget, as
appropriate; and (b) provide adequate compensation to Y for the violations suffered. The
State party is also under an obligation to take all steps necessary to prevent similar
violations from occurring in the future.
10.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure to all individuals within its territory or subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy when
it has been determined that a violation has occurred, the Committee wishes to receive from
the State party, within 180 days, information about the measures taken to give effect to the
Committee’s Views. The State party is also requested to publish the present Views and to
have them widely disseminated in the official language of the State party.
CCPR/C/125/D/2498/2014
12
Annex
Joint opinion of Committee members Marcia V.J. Kran and
Yuval Shany (concurring)
1.
We are in agreement with the Committee that the State party has failed to clearly
indicate the kinds of special circumstances under which the child budget may be granted to
individuals without a residence permit, and that it has not explained the steps the author
could have taken and failed to take in order to substantiate her statelessness and inability to
leave the Netherlands during the relevant period (para. 7.6).
2.
This leads us to conclude that the eligibility criteria for the child budget
(kindgebonden budget), including the exceptional circumstances under which non-eligible
families would be entitled to receive the budget, were not set out in a clear, objective
manner and were not applied to the author in a reasonable manner. Consequently, the actual
exclusion of the author from eligibility to both regular and exceptional avenues for receipt
of the child budget was based, in our view, on criteria that were neither reasonable nor
objective, and that constituted a form of discrimination, contrary to articles 26 and 2 (1),
read in conjunction with article 24, of the Covenant.1
3.
At the same time, we have some doubts regarding what appears to be the
Committee’s main conclusion: that the State party was required to allow the author to
receive support from the child budget by virtue of article 24. While I share the position of
the Committee 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 a guarantee of subsistence under circumstances where her mother had no
access to work or other income (para. 7.8), we are of the view that the State has broad
discretion in identifying the appropriate social security programme through which to
implement this positive obligation. We further note that the State party claimed that neither
general child benefits nor the child budget was a general income support scheme providing
families with children with a minimum subsistence income payment (para. 4.8).
4.
However, the State party has not identified what other social security measures were
in place to address the needs and best interests of children facing acute poverty and
destitution, which puts their physical and psychological well-being at real risk.
5.
For these reasons, we would have based the Committee’s article 24 finding not on
the specific refusal to afford the author support under the child budget programme, but
rather on the State party’s failure to identify any social security programme that would
evaluate and address the needs of the author’s minor child. We therefore propose to read
paragraph 7.8 of the Committee’s Views relating to the separate violation of article 24 in
that light.
1 The Committee recently examined two similar cases in which the application of domestic laws was
found to be discriminatory, because the reasons for allowing some exceptions to a general norm, but
not allowing other exceptions to the same norm, were not clearly explained or resulted in particularly
harsh consequences. See Yaker v. France (CCPR/C/123/D/2747/2016), para. 8.15, in which it was
noted that the State party provided no explanation why the blanket prohibition on the author’s veil
was reasonable or justified, in contrast to the exceptions allowable under the act concerned, and
Toussaint v. Canada (CCPR/C/123/D/2348/2014), para. 11.8, in which it was noted that, given that
the exclusion of the author from the care programme concerned could result in the author’s loss of life
or irreversible, negative consequences for the author’s health, the distinction drawn by the State party
for the purpose of admission to the programme between those with legal status in the country and
those who had not been fully admitted to Canada was not based on a reasonable and objective
criterion.