CRC/C/100/D/163/2021

GE.26-01348 (E) 240226 240226

Committee on the Rights of the Child

Views adopted by the Committee under the Optional

Protocol to the Convention on the Rights of the Child

on a communications procedure, concerning

communication No. 163/2021*, **, ***

Communication submitted by:

J.S. and L.A. (represented by Lea Hungerbühler)

Alleged victim:

A.S.

State Party:

Switzerland

Date of communication:

25 October 2021

Date of adoption of Views:

30 January 2026

Subject matter:

Deportation of a child with autism, his parents

and his sister to Bosnia and Herzegovina or the

Islamic Republic of Iran

Procedural issues:

Manifestly ill-founded submission; exhaustion of

domestic remedies

Substantive issues:

Best interests of the child; rights of the child;

refugee status; disability; health; medical

treatment; special education; social security

rights; non-refoulement; education;

rehabilitation; torture; separation of children

from their parents

Articles of the Convention:

3, 6, 12, 19, 22–24, 26–28, 37 and 39

Article of the Optional Protocol:

7 (e) and (f)

* Adopted by the Committee at its 100th session (12–30 January 2026).

** The following members of the Committee participated in the consideration of the communication:

Suzanne Aho, Thuwayba Al Barwani, Hynd Ayoubi Idrissi, Mary Beloff, Rinchen Chophel, Rosaria

Correa, Timothy Ekesa, Bragi Gudbrandsson, Mariana Ianachevici, Benyam Dawit Mezmur, Aïssatou

Alassane Sidikou, Juliana Scerri Ferrante, Zeinebou Taleb Moussa and Benoit Van Keirsbilck.

*** Pursuant to rule 8 (1) (a) of the Committee’s rules of procedure under the Optional Protocol to the

Convention on the Rights of the Child on a communications procedure, Committee member Philip

Jaffé did not participate in the consideration of the communication.

United Nations

CRC/C/100/D/163/2021

Convention on the

Rights of the Child

Distr.: General

12 February 2026

English

Original: French

CRC/C/100/D/163/2021

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GE.26-01348

1.1

The authors of the communication are J.S., a national of Bosnia and Herzegovina born

in 1984, and L.A., a national of the Islamic Republic of Iran born in 1983. They submit the

communication on behalf of their son, A.S., who is a national of the Islamic Republic of Iran

born in 2019. The authors claim that, by deporting them, A.S. and his sister, L.S., to Bosnia

and Herzegovina or the Islamic Republic of Iran, the State Party would violate the rights of

A.S. under articles 3, 6, 12, 19, 22, 23, 24, 26, 27, 28, 37 and 39 of the Convention. The

Optional Protocol entered into force for the State Party on 24 July 2017. The authors are

represented by counsel.

1.2

On 2 November 2021, pursuant to article 6 of the Optional Protocol and rule 7 of the

Committee’s rules of procedure, the Working Group on Communications, acting on behalf

of the Committee, requested the State Party to refrain from returning the family to Bosnia

and Herzegovina or the Islamic Republic of Iran while the case was under consideration by

the Committee.

Facts as submitted by the authors

2.1

The authors claim that, in 2012, the brother of L.A. was killed by agents from the

Ministry of Intelligence of the Islamic Republic of Iran owing to his conversion to the Baha’i

faith and his political activities. According to the authors, the Iranian authorities conducted

several searches of the family home in this context and took the parents of L.A. to the police

station. In 2015, L.A. was forced to enter into a temporary marriage with an official for a set

period of time (between one and three years), which is an arrangement that is recognized in

the Islamic Republic of Iran. In November 2015, J.S. travelled to the Islamic Republic of

Iran, where he met L.A. Although the temporary marriage of L.A. had not yet ended, J.S. and

L.A. married on 14 February 2016 and decided to move to Bosnia and Herzegovina. However,

the embassy of Bosnia and Herzegovina rejected the visa application submitted by L.A.

because of a lack of proof that she had sufficient financial means. J.S. and L.A. thus continued

to live in the Islamic Republic of Iran until they were “caught” by the first husband of L.A.

in February 2016, which led to a fight. On 11 July 2016, they applied for asylum in

Switzerland.

2.2

In separate decisions dated 19 August 2016, the State Secretariat for Migration

dismissed the authors’ asylum applications pursuant to article 31a (1) (b) of the Asylum Act

of 26 June 19981 and ordered the authors’ deportation to Hungary, which was the responsible

State under the Dublin III Regulation, and the initiation of the deportation process. In a ruling

of 29 June 2017, the Federal Administrative Court sent the case back to the State Secretariat

for Migration for a new decision. On 27 March 2019, the State Secretariat for Migration

determined that the authors and A.S. could not be granted refugee status, since their account

was not credible. On 13 August 2020, the Federal Administrative Court rejected the family’s

appeal, ruling that their deportation to Bosnia and Herzegovina or the Islamic Republic of

Iran was possible and reasonable.

2.3

On 23 January 2020, A.S. was diagnosed with F84.0 childhood autism. Early intensive

treatment was recommended. In August 2020, the family was offered a place in a centre

specializing in autism treatment, which provided the child with transdisciplinary support

consisting of remedial teaching, occupational therapy, physiotherapy and speech therapy.

A.S. spent a year there before being transferred to a preschool for persons with disabilities,

where he spends 20 hours each week following an integration programme run by the autism

treatment centre and receives occupational therapy. The authors receive updates from autism

experts every two weeks. According to a medical certificate dated 22 January 2021, the

existence of a biological window for early intensive treatment, which is linked to the brain’s

neuroplasticity, offers a unique opportunity to shape the course of the education of A.S.

2.4

On 5 November 2020, the authors requested the reconsideration of their asylum

application in view of the state of health of A.S. The request was rejected by the State

Secretariat for Migration on 28 December 2020. The State Secretariat for Migration noted

that, while article 83 (4) of the Foreign Nationals and Integration Act provides that the

1 This article establishes the following: “As a general rule, the State Secretariat for Migration shall not

entertain an asylum application if the asylum-seeker: … (b) is able to travel to a third country that is

responsible under an international agreement for conducting the asylum and removal procedures”.

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enforcement of a removal measure could be considered unreasonable in the event of a

medical emergency, established case law shows that this has been found to be the case only

if essential medical treatment is not available in the country of origin and the return of the

individual concerned would lead to a rapid and potentially fatal deterioration in his or her

state of health. Removal is reasonable if medical treatment is available in the country of origin,

even if it does not meet Swiss standards. In this respect, the State Secretariat for Migration

found that outpatient treatment by a paediatric neurologist was offered through services

including the neurology (psychiatry) department at the Sarajevo University Hospital and that

speech therapy was available at the Mjedenica public institute for special education and care

of children in Sarajevo. The State Secretariat for Migration noted that there was no centre for

persons with autism in Bosnia and Herzegovina but also that such a centre was due to open

in Tuzla in the spring of 2021. In addition, the State Secretariat for Migration found that

outpatient treatment could be provided by a paediatric neurologist at facilities including the

Bahrami public children’s hospital in Tehran and that the Arman Shayan rehabilitation centre

for children with autism, which offered comprehensive and transdisciplinary treatment, had

been operational since 2018. The State Secretariat for Migration therefore concluded that the

best interests of the child would not be violated in the event that the family was deported.

2.5

On 23 February 2021, the Federal Administrative Court rejected the family’s appeal.

The Court considered, however, that it had been demonstrated in the case file that A.S. had

a severe form of childhood autism, that he was receiving comprehensive treatment at the

autism treatment centre in Gelterkinden-Sissach and that this treatment would be disrupted if

the family was deported from Switzerland. The Court was of the view that, while treatment

was available in Bosnia and Herzegovina and the Islamic Republic of Iran, it was unlikely to

be as intensive or comprehensive as the treatment being received by A.S. at the time and that

the upheaval caused by the departure and the changes to that treatment would be detrimental

to his development. However, the Federal Administrative Court concluded that there was no

indication that the return of A.S. to Bosnia and Herzegovina or the Islamic Republic of Iran

would lead to a rapid and life-threatening deterioration of his state of health. It could not be

said that the state of health of A.S. was so serious as to meet the high threshold required to

render the decision to execute the removal measure unreasonable. In other words, there was

no “real risk” within the meaning of the case law of the European Court of Human Rights in

Paposhvili v. Belgium (application No. 41738/10, judgment of 13 December 2016). The

Federal Administrative Court was of the view that J.S. could find a job in Bosnia and

Herzegovina in order to meet the income requirements and keep the family together.

2.6

According to the authors, even though deportation from Switzerland would not

endanger the life of A.S., a medical certificate dated 15 September 2020 showed that taking

him away from his treatment providers and making changes in his life would compromise

the progress he has made so far. The head of the autism centre treating A.S. claims that it is

only thanks to the intensive treatment he is currently receiving that he is able to make progress

in his education and that withdrawing him from this treatment would be the equivalent of

removing glasses, a hearing aid or a wheelchair from a child who is dependent on such aids.2

She stresses the importance of keeping A.S. in a structured setting with which he is familiar,

since any changes in terms of people, premises and surroundings would be too upsetting for

him. According to the authors, his deportation would lead to a degrading situation in that it

would result in the termination of his treatment, which must be provided without delay in

order to avoid serious consequences for his development and health. 3 In a letter dated

13 August 2021, the child and adult protection authority of Gelterkinden-Sissach notes that

the situation of A.S. has improved since he enrolled and started receiving treatment at the

autism treatment centre. The authority believes that the deportation of A.S. would set back

efforts to ensure his continued development and protect his best interests.

2.7

The authors refer to information provided by their counsel on 18 August 2021 and to

information shared by a non-governmental organization (NGO) in Bosnia and Herzegovina

on 31 March 2021, which indicate that there is no autism treatment programme in that country,

2 The authors refer to a certificate dated 22 January 2021, which was issued by a specialist in

paediatrics and adolescent medicine who is head of the autism treatment centre in Aesch.

3 The authors refer to information provided by their counsel on 18 August 2021.

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that the availability of specialized services is limited and that there are almost no institutions

caring for children with early childhood autism. Access to basic healthcare is limited and

often contingent upon the payment of bribes because of the corruption in the health sector.

With regard to the situation in the Islamic Republic of Iran, the authors argue that the Iranian

Government has neglected children with autism by failing to provide any educational or

medical assistance or financial support for families and that the country is home to just a few

schools for children with autism, which, owing to their lack of resources, are ill-equipped

and employ insufficiently trained staff.4 The situation is exacerbated by the fact that many

persons with disabilities in the Islamic Republic of Iran face discrimination.5 Furthermore,

the authors contacted the institutions mentioned by the State Secretariat for Migration to

check whether treatment was available, but received no response. According to the authors,

these institutions are therefore neither willing nor able to provide A.S. with the necessary

treatment. Lastly, the family’s deportation to the Islamic Republic of Iran would cause great

uncertainty, which would have a considerable impact on the health of A.S., since the first

husband of L.A. is a government official and could force her to resume the marriage.

Complaint

3.1

The authors claim that the State Party did not conduct an individualized assessment

of the best interests of A.S. His deportation from Switzerland, the only country he knows, to

Bosnia and Herzegovina or the Islamic Republic of Iran, where he would have no access to

the necessary treatment or special education, would cause him irreparable harm, since his

subsequent development and chances of leading a dignified and healthy life would be

seriously threatened. As a result, his deportation would lead to a violation of his rights under

articles 3, 6, 19, 22, 23, 24, 27, 28, 37 and 39 of the Convention.

3.2

The authors submit that the State Party did not obtain detailed information on whether

A.S. would effectively have access to the necessary care in Bosnia and Herzegovina or the

Islamic Republic of Iran, since the domestic authorities conducting the relevant inquiries

simply listed the potential outpatient treatment and speech therapy options without assessing

whether they would meet the needs of A.S., whether they were appropriate and accessible

and how much they would cost. The authors argue that the State Secretariat for Migration did

not take into consideration the inaccessibility of the treatment options in Bosnia and

Herzegovina mentioned in its decision, the issue of schooling for children with autism in both

countries or the lack of assurances regarding the impact that deportation would have on A.S.,6

despite these factors being essential for guaranteeing the continuation of his treatment and

taking into account the considerable effects that such a change would have on his well-being.

The State Party has thus violated articles 22 to24 of the Convention.

3.3

The authors claim that the deportation of A.S. would seriously compromise his

development, as his current treatment would be stopped, and no medical care or schooling is

guaranteed in Bosnia and Herzegovina or the Islamic Republic of Iran. This would have a

detrimental impact on him and his dignity, in violation of article 37 (a) of the Convention.

3.4

Furthermore, the failure to gather additional information or obtain assurances

concerning the length of the family’s separation in the event of their deportation to Bosnia

and Herzegovina, where L.A. has no right to stay, constitutes a violation of article 3 of the

Convention in view of the vulnerability of A.S. The separation of L.A. from the rest of the

family for an unknown period of time would expose A.S. to an inhuman situation, which the

domestic authorities have not taken into account. According to the authors, the Federal

Administrative Court is not competent to rule on fulfilment of another State’s visa

requirements.

State Party’s observations on admissibility and the merits

4.1

In comments dated 2 May 2022, the State Party notes that one of the annexes to the

communication, which contains information on Bosnia and Herzegovina and the Islamic

4 The authors refer to information on the Islamic Republic of Iran that was provided by their counsel on

18 August 2021.

5 Ibid.

6 European Court of Human Rights, Tarakhel v. Switzerland (application No. 29217/12, judgment of

4 November 2014), para. 120.

CRC/C/100/D/163/2021

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5

Republic of Iran and is dated 18 August 2021, has been prepared by the authors, and that

other annexes – a letter from the autism treatment centre dated 8 September 2021, emails

from a contact dated 28 June and 30 August 2021, a report from the child and adult protection

authority of Gelterkinden-Sissach dated 13 August 2021 and emails to NGOs in Bosnia and

Herzegovina and the Islamic Republic of Iran dated 30 and 31 March and 25 June 2021 –

date from the period subsequent to 23 February 2021, the date of the ruling of the Federal

Administrative Court. These items of evidence could not, therefore, be examined by the

domestic authorities and so cannot be taken into account by the Committee.

4.2

The State Party notes that, in their appeal before the Federal Administrative Court, the

authors invoked articles 3, 6 (2) and 24 (1) of the Convention. They did not explicitly claim

a violation of articles 19, 22, 23, 27, 28, 37 or 39 of the Convention, instead doing so in

substance, except in the case of article 39.

4.3

The State Party argues that the claim of a violation of article 39 of the Convention is

inadmissible under article 7 (f) of the Optional Protocol because it is not sufficiently

substantiated, given that the authors do not explain to what extent A.S. has been a victim of

neglect, exploitation, abuse, torture or any other form of cruel, inhuman or degrading

treatment or punishment, or armed conflict.

4.4

The State Party indicates that a medical emergency would render the deportation

unenforceable if the absence of any adequate treatment options meant that the state of health

of the person concerned would be expected to very rapidly deteriorate to the point of

unquestionably endangering his or her life or causing serious, lasting and significantly graver

damage to his or her physical integrity. “Essential care” means general medical and

emergency care that is absolutely necessary to guarantee human dignity. A deportation is not

unenforceable simply because medical care in the country of origin or destination is not of

the high standard found in Switzerland. In this regard, the State Party notes that, in its letter

of 13 August 2021, the child and adult protection authority of Gelterkinden-Sissach

acknowledged that there was no reason to believe that the life or physical integrity of the

family members would be in acute danger in the event of their deportation to their country of

origin. According to the authority, however, there is reason to expect that the ongoing efforts

to support the development and protect the well-being of A.S. would be set back, resulting in

an unfavourable outlook.

4.5

According to the State Party, the Federal Administrative Court duly determined and

assessed the best interests of A.S. It concluded that enforcing the deportation was reasonable,

since, as A.S. was only 3 years and 10 months old at the time, his primary attachment was to

the authors. It also noted that there was no right to receive the best possible treatment. In

addition, the Federal Administrative Court thoroughly examined the medical and social

aspects of the care that A.S. would receive in Bosnia and Herzegovina and the Islamic

Republic of Iran and the reports provided by the authors. The domestic authorities concluded

that A.S. would have access to the necessary medical treatment in both Bosnia and

Herzegovina and the Islamic Republic of Iran and that such care was available, even if neither

country offered medical treatment that met Swiss standards.

4.6

The State Party refers to the possibility under article 93 (1) (d) of the Asylum Act for

claimants to request financial assistance to fund their medical care over a limited period. It

notes that J.S. has many years of professional experience and that L.A. has good

qualifications. It should therefore be possible for them to find work. In addition, before her

departure from the Islamic Republic of Iran, L.A. received financial support from her family,

and it is likely that she could do so again upon returning to the country. It must therefore be

considered that the authors, who, furthermore, have family ties in their respective countries

of origin, are in a position to meet the needs of A.S.

4.7

The State Party notes that the authors are very involved parents and are eager to

provide A.S. with the best possible support, that they have regularly and willingly

participated in the training opportunities offered by the autism treatment centre and that this

will help them to support and raise A.S. in their country of origin. Furthermore, A.S. has

already been diagnosed, and his needs have been identified.

4.8

The State Party argues that the authors refer to an email that was sent on 31 March

2021, after the issuance of the contested Federal Administrative Court judgment of

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23 February 2021, and that this email should therefore be disregarded by the Committee. The

email shows that options for the care and treatment of children with autism do exist in Bosnia

and Herzegovina, even though they do not include an autism programme per se or a full-time

therapeutic programme. The State Party points out that A.S. is no longer receiving intensive

treatment but attends preschool and follows a 20-hour-per-week preschool integration

programme run by the autism treatment centre. It thus considers that the treatment being

received by A.S. is available and accessible in Bosnia and Herzegovina and the Islamic

Republic of Iran and that his best interests were a primary consideration in the internal

assessments.

4.9

The State Party notes that, in its decision of 27 March 2019, the State Secretariat for

Migration concluded that L.A. was, in principle, entitled to a residence permit in Bosnia and

Herzegovina. In addition, the Federal Administrative Court stressed that the separation of the

family for a short period would not constitute an obstacle to enforcement of the deportation.

According to the aforementioned decision, a foreign national married to a citizen of Bosnia

and Herzegovina can obtain a temporary residence permit for family reunification purposes

under article 50 (1) (a) of the law on foreigners. The State Party also notes that Bosnia and

Herzegovina and the Islamic Republic of Iran are both Parties to the Convention and are

obliged to respect the rights of A.S. under that instrument.

4.10

Lastly, the State Party stresses that the principle of non-refoulement does not confer

a right to remain in a country solely on the basis of a difference in health services that may

exist between the State of origin and the State of asylum, or to continue medical treatment in

the State of asylum, unless such treatment is essential for the life and proper development of

the child and would not be available and accessible in the State of return. In the present case,

there are no such indications. The State Party concludes that the authors’ claims are

manifestly ill-founded and that, in addition, there has been no violation of the Convention.

Authors’ comments

5.1

In their comments of 5 September 2022, the authors claim that the annexes to the

communication that date from the period subsequent to the most recent domestic decision

concern their argument that adequate treatment for A.S. is not available in Bosnia and

Herzegovina or the Islamic Republic of Iran. The letter from the child and adult protection

authority dated 13 August 2021 mainly confirms the arguments that the authors had already

raised in their request for reconsideration. All this information had, therefore, already been

communicated to the State Secretariat for Migration. The annexes simply set out the same

information with more concrete evidence. The State Party could have examined this

information if it had fulfilled its duty to investigate. Furthermore, the State Secretariat for

Migration and the Federal Administrative Court repeatedly stated that the family’s

deportation would be carried out regardless of the health status of A.S., and submitting the

aforementioned information as part of the appeals was therefore of no use. Accordingly, the

Committee must take into account the annexes in question.

5.2

The authors argue that their claim under article 39 of the Convention is sufficiently

substantiated and that they raised it in their appeal before the Federal Administrative Court.

The deportation of A.S., a child with “severe” autism, would mean removing him from a

familiar and safe environment and disrupting his treatment, which would be detrimental to

his physical and psychological recovery, jeopardize his development and worsen his state of

health. Moreover, A.S. would be a victim of neglect in the event that the State Party took no

integration measures.

5.3

The authors maintain that the communication is not manifestly ill-founded. According

to the medical certificate of 15 September 2020, a cessation of treatment in the context of the

family’s deportation would reverse the progress made by A.S. and jeopardize his

development and health. The lack of treatment would have an adverse impact on him for the

rest of his life. His well-being can only be guaranteed if he continues his treatment in

Switzerland and if the authors receive proper guidance. However, the State Party did not

demonstrate that such support was available in Bosnia and Herzegovina or the Islamic

Republic of Iran.

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5.4

According to the authors, the State Party is mistaken in asserting that the existence of

other, lower-quality forms of therapy in Bosnia and Herzegovina or the Islamic Republic of

Iran means that it is acting in compliance with its obligations under the Convention. The

existence of a complex therapeutic framework that also addresses mental health problems

and eating disorders cannot be guaranteed in those countries. The State Party has presented

no evidence that the necessary treatment is actually available and has not conducted an

individualized assessment. The current therapeutic framework is clearly essential for the life

and proper development of A.S. The authors refer to a paediatric certificate dated 3 May 2022

in order to highlight that, beyond the typical symptoms of autism, A.S. has behavioural issues

that require additional psychological treatment. They have had to seek urgent care on several

occasions because he woke up unable to walk. Furthermore, A.S. is aggressive towards

himself and his sister and touches his genitals, even in public. Communicating with him

through images remains difficult.

5.5

The authors contest the argument that, in the event of their deportation to Bosnia and

Herzegovina, they could temporarily pay for the treatment initially through the financial

assistance mentioned by the State Party and then through their wages. With regard to their

temporary separation, it is difficult to see how either J.S. or L.A., alone or with family help,

could look after the children while earning enough money to cover the family’s daily needs,

since the therapy received by A.S. is extremely expensive. The domestic authorities have not

given sufficient consideration to these aspects in their decisions.7

5.6

The authors argue that the State Party would be responsible for their separation and

that there is no guarantee that they could be reunited, given that, in violation of article 9 of

the Convention, J.S. would have to find work and housing and look after the two children

and would be solely responsible for reuniting the family and seeking care for A.S. The

domestic authorities have not taken into account the impact that such a situation would have

on A.S. or the fact that meeting his significant need for care and a stable family environment

would not be possible. The authors argue that the State Party has violated article 3 of the

Convention by failing to give sufficient consideration to the vulnerability of A.S., the risk

that he would not receive the necessary treatment and education and the fact that the family

would be separated at least temporarily. The failure to sufficiently take into account the needs

of A.S. in terms of access to medical care and social and financial support in Bosnia and

Herzegovina and the Islamic Republic of Iran constitutes a violation of his rights under article

6 of the Convention. As A.S. would not receive the required support, the authors are of the

view that the State Party has failed to ensure that he would not be exposed to inhuman and

degrading treatment or that they themselves would receive the support they need to care for

him, in violation of article 19 of the Convention. The State Party has failed to provide the

necessary humanitarian assistance to the family, in violation of article 22 of the Convention.

It has not taken account of the fact that A.S. would not have access to adequate treatment in

Bosnia and Herzegovina or the Islamic Republic of Iran, in violation of articles 23, 24, 27

and 37 of the Convention. Furthermore, the State Party has failed to ensure that A.S. would

have equal access to education, as the provision of special education cannot be guaranteed in

Bosnia and Herzegovina or the Islamic Republic of Iran, in violation of article 28 of the

Convention. Lastly, in violation of article 39 of the Convention, the State Party has failed to

ensure that A.S. would benefit from social reintegration services in these countries.

State Party’s additional observations

6.

In its additional observations of 15 February 2023, the State Party indicates that the

medical certificate of 3 May 2022, in which A.S. is diagnosed with childhood autism, is not

such as to modify its previous observations.

7 European Court of Human Rights, Savran v. Denmark (application No. 57467/15, judgment of

7 December 2021), para. 47.

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Issues and proceedings before the Committee

Consideration of admissibility

7.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 20 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

7.2

The Committee takes note of the State Party’s argument that the Committee cannot

take into account the annexes to the communication that date from the period subsequent to

23 February 2021, the date of the decision of the Federal Administrative Court, since the

domestic authorities were unable to examine them. The Committee notes that these annexes

consist of information prepared by the authors on 18 August 2021 regarding the availability

of autism treatment in Bosnia and Herzegovina and the Islamic Republic of Iran, a letter from

the autism treatment centre dated 8 September 2021, emails sent on 30 and 31 March, 25 and

28 June and 30 August 2021 to institutions in Bosnia and Herzegovina and the Islamic

Republic of Iran concerning the availability of autism treatment in these countries and the

situation of L.A. in the Islamic Republic of Iran, a report from the child and adult protection

authority of Gelterkinden-Sissach dated 13 August 2021 and a paediatric certificate dated

3 May 2022. The Committee observes that, according to the authors, these documents merely

repeat the arguments presented before the domestic authorities with more concrete evidence,

and that the Committee must, therefore, take them into consideration. The Committee notes,

however, that the documents contain information on the availability of treatment for A.S. in

Bosnia and Herzegovina and the Islamic Republic of Iran, which was prepared at the request

of the authors, and information on his eating disorders, and that it is unclear whether this

information was submitted to the domestic authorities. The Committee considers,

furthermore, that the State Party must be given an opportunity to assess new evidence falling

within the scope of the Convention before the Committee considers the communication under

the Optional Protocol.8 In this respect, the Committee takes note of the authors’ argument

that the domestic proceedings did not provide an effective remedy, but considers that the

authors have not demonstrated the ineffectiveness of the domestic remedies within the

meaning of article 7 (e) of the Optional Protocol. More specifically, the Committee notes that,

while the State Secretariat for Migration rejected the authors’ request for reconsideration, it

did so on the basis of an assessment of the state of health of A.S. and the treatment options

available in Bosnia and Herzegovina and the Islamic Republic of Iran. In addition, the

Committee notes that, in their respective examinations, the State Secretariat for Migration

and the Federal Administrative Court applied the legal framework under which the

enforcement of deportation measures can be deemed unreasonable owing to the state of

health of the person concerned and analysed the facts submitted by the authors in this context.

Consequently, the Committee considers that the domestic remedies were effective and that

the authors should have presented the documents concerned to the domestic authorities before

submitting them as part of the present communication. The Committee thus disregards these

documents, since they contain new information.

7.3

The Committee notes that, according to the State Party, the authors did not invoke

their claim under article 39 of the Convention in substance. The Committee also notes the

authors’ argument that they invoked this claim in substance in their appeal before the Federal

Administrative Court. The Committee observes that, in this appeal, the authors invoked the

alleged inadequacy of reduced treatment for A.S., but did not argue, in substance, that A.S.

was the victim of any form of neglect, exploitation or abuse, torture or any other form of

cruel, inhuman or degrading treatment or punishment, or armed conflict. The Committee thus

finds this claim inadmissible under article 7 (e) of the Optional Protocol.

7.4

The Committee takes note of the State Party’s argument that the communication is

manifestly ill-founded under article 7 (f) of the Optional Protocol. The Committee notes that

the authors have not provided any information to substantiate their claim of a violation of

article 12 of the Convention and thus considers that this claim is not sufficiently substantiated

under article 7 (f) of the Optional Protocol. However, the Committee is of the view that the

8 F.M.-M. v. Switzerland (CAT/C/46/D/399/2009), para. 6.5; K.K.H. v. Canada

(CAT/C/15/D/35/1995), para. 5.

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GE.26-01348

9

authors have sufficiently substantiated their allegations that, in their decisions to deport the

family to Bosnia and Herzegovina or the Islamic Republic of Iran, the national authorities

failed to take due account of the best interests of A.S. in the light of his needs as a child with

early childhood autism, in particular those relating to his access to healthcare and education.

Accordingly, the Committee declares the communication admissible insofar as it is

sufficiently substantiated and proceeds to consider the merits.

Consideration of the merits

8.1

The Committee has considered the communication in the light of all the information

submitted to it by the parties, in accordance with article 10 (1) of the Optional Protocol.

8.2

The Committee takes note of the authors’ allegations that the deportation of A.S. to

Bosnia and Herzegovina or the Islamic Republic of Iran would deprive him of access to the

treatment and special education he needs, in violation of his rights under articles 3, 6, 19, 22,

23, 24, 27, 28 and 37 of the Convention.

8.3

The Committee recalls that it is for the national authorities to examine the facts and

evidence and to interpret and enforce domestic law, unless their assessment has been clearly

arbitrary or amounts to a denial of justice. It is therefore not for the Committee to interpret

domestic law or to assess the facts of the case and the evidence in place of the national

authorities but to ensure that their assessment was not arbitrary or tantamount to a denial of

justice and that the best interests of the child were a primary consideration in that assessment.9

The Committee also recalls that the principle of non-refoulement does not confer a right to

remain in a country solely on the basis of a difference in health services that may exist

between the State of origin and the State of asylum, or to continue medical treatment in the

State of asylum, unless such treatment is essential for the life and proper development of the

child and would not be available and accessible in the State of return.10

8.4

In the present case, the Committee notes that, in their respective decisions of

28 December 2020 and 23 February 2021, the State Secretariat for Migration and the Federal

Administrative Court noted that outpatient treatment provided by paediatric neurologists was

available in Bosnia and Herzegovina and the Islamic Republic of Iran, that speech therapy

services were available in Bosnia and Herzegovina, that a centre for persons with autism was

due to open in Bosnia and Herzegovina in 2021 and that there was a rehabilitation centre for

children with autism in the Islamic Republic of Iran. The Committee notes that the authors

refer to medical certificates drafted prior to the decision of the Federal Administrative Court

of 23 February 2021, which highlight the need for A.S. to remain in the organized setting

with which he is already familiar and the fact that removing him from that setting and making

changes in his life would compromise the progress he has made. The Committee notes that

the Federal Administrative Court took account of these certificates and recognized that the

upheaval caused by the departure and the treatment changes would not be conducive to the

development of A.S., but that it could be assumed that he would have access to the necessary

care, albeit in more difficult conditions, and that the family could benefit from medical

assistance on their return. In addition, the Committee notes that, in 2021, A.S. was transferred

to a preschool where he receives occupational therapy and follows a 20-hour-per-week

integration programme run by the autism treatment centre but no longer receives the intensive

treatment he had before. The Committee thus notes the absence of information confirming

that his current needs could not be met by the services mentioned in the national decisions,

even taking into account the difficulties raised. The Committee also notes the observation by

the Federal Administrative Court that, given the young age of A.S. at the time, his primary

attachment was to the authors, which meant that, in terms of his well-being, his deportation

was not unreasonable. Furthermore, with regard to the alleged separation of L.A. from the

rest of the family in the event of their deportation to Bosnia and Herzegovina, the Committee

notes that, in its decision of 27 March 2019, the State Secretariat for Migration found that

L.A. is, in principle, entitled to a residence permit in that country. The Committee considers

that, although the authors identify certain difficulties associated with their return to Bosnia

9 C.E. v. Belgium (CRC/C/79/D/12/2017), para. 8.4; E.A. and U.A. v. Switzerland

(CRC/C/85/D/56/2018), para. 7.2.

10 G.R. et al. v. Switzerland (CRC/C/87/D/86/2019), para. 11.6.

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GE.26-01348

and Herzegovina or the Islamic Republic of Iran, they have not shown that the domestic

authorities’ decision concerning the family’s ability to return was arbitrary, including in view

of the possibility of obtaining treatment for A.S. and applying for financial assistance to fund

medical care upon their return, the professional experience of J.S., the qualifications of L.A.

and their respective links with these two countries. In the light of the foregoing, the

Committee considers that the domestic authorities took sufficient account of the best interests

of A.S. and conducted an individualized examination of the specific impact that the family’s

deportation to Bosnia and Herzegovina or the Islamic Republic of Iran would have on him.

Consequently, the Committee considers that the deportation would not violate the rights of

A.S. under articles 3, 6, 19, 22, 23, 24, 27, 28 or 37 of the Convention.

9.

The Committee, acting under article 10 (5) of the Optional Protocol, is of the view

that the facts before it do not disclose a violation of articles 3, 6, 19, 22, 23, 24, 27, 28 or 37

of the Convention.