CRC/C/99/D/161/2021

GE.25-08778 (E) 170725 170725

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. 161/2021*, **

Communication submitted by:

A.S. (represented by counsel, Boris Wijkström)

Alleged victim:

N.F.

State Party:

Switzerland

Date of communication:

7 September 2021 (initial submission)

Date of adoption of Views:

19 May 2025

Subject matter:

Separation of a child from her father due to the

latter’s removal to Algeria

Procedural issues:

Power of representation; manifestly ill-founded

submission; exhaustion of domestic remedies

Substantive issues:

Best interests of the child; interference with

family life; separation of children from parents;

right to be heard

Articles of the Convention:

3 (1), 9, 12 and 16

Articles of the Optional Protocol:

5 (2) and 7 (e) and (f)

1.1

The author of the communication is A.S., a national of Algeria born on 10 October

1970. He is submitting the communication on behalf of his daughter, N.F., a national of

Morocco born 10 May 2007. The author claims that the State Party violated N.F.’s rights

under articles 3 (1), 9, 12 and 16 of the Convention by deciding to deport A.S. to Algeria. He

is represented by counsel. The Optional Protocol entered into force for the State Party on

24 July 2017.

1.2

On 25 October 2021, in accordance with article 6 of the Optional Protocol and rule 7

of the rules of procedure under the Optional Protocol, the Committee, acting through the

working group on communications, requested the State Party, to suspend the author’s

* Adopted by the Committee at its ninety-ninth session (12–23 May 2025).

** 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, Sophie Kiladze, Cephas Lumina,

Faith Marshall-Harris, Juliana Scerri Ferrante, Aïssatou Alassane Sidikou 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, Philip Jaffe did not participate

in the consideration of the communication.

United Nations

CRC/C/99/D/161/2021

Convention on the

Rights of the Child

Distr.: General

24 June 2025

English

Original: French

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deportation to Algeria in order to avoid irreparable damage to N.F.’s rights as a result of her

father’s deportation.

Facts as submitted by the author

2.1

On 29 August 1999, the author arrived in Switzerland, where he had gone to apply for

asylum. On 25 October 1999, the authorities of the State Party rejected his application.

Following the rejection of his appeal and the issuance of an order for his removal to Algeria,

the author remained in Switzerland. A few years later, he began a relationship with R.F., a

Moroccan national in possession of a permanent residence permit. On 10 May 2007, their

daughter, N.F., was born. A year and a half later, the author and R.F. separated.

2.2

On 22 August 2012, the Lausanne civil court recognized N.F. as the author’s daughter,

formalized his visitation rights and approved his agreement with R.F., which exempted him

from making regular financial contributions owing to his precarious economic situation. The

author points out that the court granted him “free and broad visitation rights” and that a strong

relationship was forged as a result of his frequent visits. He notes that he took part in N.F.’s

life by regularly doing her homework with her, picking her up from school and afterschool

activities and taking her to the doctor’s. He adds that they see each other three or four times

a week, and regularly at weekends. The author also has a close relationship with N., N.F.’s

half-sister.

2.3

On 6 June 2013, the author was fined 300 Swiss francs (SwF) for staying illegally in

Switzerland. On 3 April 2014, he married I.D., a Swiss national. On 17 July 2014, the

Population Service of the Canton of Vaud granted him a residence permit on the basis of

family reunification with I.D., which was renewed until 2 April 2017. On 27 February 2017,

the author applied to the Population Service for renewal of his residence permit, informing it

of his separation from I.D. On 19 February 2018, the Population Service issued a favourable

recommendation. However, on 6 September 2018, the State Secretariat for Migration

declined to approve the renewal and ordered the author’s expulsion from Switzerland. The

State Secretariat held that he had not demonstrated that he had established a solid and

consistent emotional relationship with N.F. and was not supporting her financially. The

author states that the State Secretariat did not consider the evidence he had presented or

N.F.’s best interests and that it concluded that the author’s interest in maintaining his

relationship with N.F. was secondary to the public interest in deporting him. The State

Secretariat did not hear N.F., even though she was 11 years old and could have been heard in

an appropriate setting.

2.4

In his appeal to the Federal Administrative Court, dated 8 October 2018, the author

challenged the conclusion of the State Secretariat for Migration regarding his relationship

with N.F., referring to letters from R.F., I.D., social workers, friends, N.F. and N. He invoked

article 50 (1) (b) of the Federal Act on Foreign Nationals and Integration, article 3 of the

Convention and article 8 of the Convention for the Protection of Human Rights and

Fundamental Freedoms (European Convention on Human Rights), concerning the

prohibition on arbitrary interference with private and family life. On 27 November 2020, the

Court dismissed the appeal and upheld the decision of the State Secretariat. In particular, the

Court noted that the author’s marriage had not lasted three years as required by article

50 (1) (b) of the Federal Act on Foreign Nationals and Integration, that he could integrate

into Algeria and that his financial and emotional ties with N.F. were not particularly strong.

The author notes that the Court did not rule on N.F.’s best interests or the impact of the

decision on her.

2.5

On 18 January 2021, the author appealed to the Federal Supreme Court, arguing that

the Federal Administrative Court had established the facts in an arbitrary manner and, in

particular, had failed to take into consideration the evidence concerning the extent of his

relationship with N.F. and the fact that he was exercising greatly expanded visitation rights

and that, in that context, his financial support of N.F. was not as insignificant as the

authorities considered it to be, given that he was not authorized to work. On 10 February

2021, the Federal Supreme Court dismissed the appeal under the simplified procedure

provided for in article 109 (2) (a) of the Federal Supreme Court Act. The author points out

that the Federal Supreme Court accepted the absence of an emotional and financial

relationship between the author and N.F., without undertaking the least analysis, and

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concluded that they could maintain ties through modern means of communication, without

mentioning N.F.’s best interests. The author states that he has always invoked the Convention

before the judicial authorities and that he has never benefited from legal assistance.

Complaint

3.1

The author alleges a procedural violation of article 3 (1) of the Convention on the

basis that the Federal Supreme Court did not explain how the order for his deportation was

compatible with N.F.’s best interests, which must be assessed separately.1 The domestic

courts thus failed to demonstrate that they had duly considered N.F.’s best interests and that

a balancing of interests had taken place.2 The Federal Supreme Court’s sole statement on the

matter, to the effect that, even if it were true that it would be difficult for the author to exercise

his visitation rights from Algeria, he could nevertheless maintain his relationship with N.F.

through modern means of communication, does not even address the relevant considerations

as set out by the Committee in its general comment No. 14 (2013). The judgment of the

Federal Supreme Court is therefore manifestly arbitrary and constitutes a denial of justice in

respect of N.F. According to the author, the superficial reasoning of the judicial authorities

demonstrates that N.F.’s best interests were not a primary consideration; the analysis focused

solely on him. The author argues that his case is not an isolated one and that Switzerland’s

application of article 3 (1) of the Convention is generally deficient.3

3.2

Regarding article 9 of the Convention, the author states that he maintains the

arguments put forward before the Federal Administrative Court and the Federal Supreme

Court.

3.3

Under article 12 of the Convention, the author claims that N.F. was never given the

opportunity to be heard, even though she was old enough to be questioned in appropriate

circumstances. The authorities of the State Party thus did not demonstrate due diligence in

determining her best interests.4

3.4

Under article 16 of the Convention, the author refers to the arguments he made under

article 8 of the European Convention on Human Rights in his appeals to the Federal

Administrative Court and the Federal Supreme Court. He points out that article 16 (2) of the

Convention stipulates that N.F. has the right to the protection of the law against any arbitrary

interference with her family life. In the case at hand, the law failed to protect her because her

best interests were not taken into consideration.

3.5

According to the author, his deportation would prevent him from being allowed to

return to Switzerland for visits. Nor would he be able to afford visits, as he comes from a

poor family. N.F. would not be able to visit him in Algeria, as she does not have the necessary

funds for such a trip and could not come alone. At the time that the communication was

submitted, N.F. was 14 years old and therefore at a particularly sensitive stage in her

development. The emotional harm she would suffer from the author’s deportation would be

irreparable, as she is very attached to him. The author points out that he does not have any

criminal convictions, with the exception of a fine of SwF 300, which is so trivial that it does

not appear on his criminal record. There is thus no compelling public interest in deporting

him. The favourable recommendation issued by the cantonal authorities demonstrates that he

poses no threat to society and that there is a strong family interest in his remaining in

Switzerland.

1 E.A. and U.E. v. Switzerland (CRC/C/85/D/56/2018), para. 7.3; and Committee on the Rights of the

Child, general comment No. 14 (2013) (art. 3 (1)).

2 See Court of Justice of the European Union, M.A. v. Belgian State, case C-112/20, judgment,

11 March 2021.

3 E.A. and U.E. v. Switzerland; CRC/C/CHE/CO/2-4; European Court of Human Rights, M.P.E.V. and

others v. Switzerland, application No. 3910/13, judgment, 8 July 2014, para. 57; and European Court

of Human Rights, El Ghatet v. Switzerland, application No. 56971/10, judgment, 8 November 2016,

paras. 52 and 53.

4 E.A. and U.A. v. Switzerland, para. 7.4.

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State Party’s observations on admissibility and the merits

4.1

In its observations of 27 December 2021, the State Party points out that it does not

appear from the case file that R.F., who has parental authority over and custody rights in

relation to N.F. and is her legal representative, gave her support, formally and in due form,

for the submission of the communication in the name and on behalf of N.F. Moreover, only

the author was a party to the domestic proceedings. In the absence of parental authority over

N.F. and written authorization from R.F. to proceed before the Committee, he cannot be

considered properly authorized to do so. The State Party thus considers that the

communication is inadmissible owing to the lack of consent on the part of N.F. and the

author’s inability to justify acting on N.F.’s behalf without her consent, as required under

article 5 (2) of the Optional Protocol.

4.2

In its observations of 24 June 2022, the State Party notes that N.F.’s written consent,

since provided to it, post-dates the submission of the communication. Moreover, the

documents do not show that R.F. gave her support, formally and in due form, for the

submission of the communication in the name and on behalf of N.F. In addition, neither the

author nor N.F. themselves signed the communication form. Consequently, the State Party

invites the Committee to satisfy itself that the communication was properly submitted and is

in N.F.’s best interests.

4.3

The State Party notes that the author did not complain of a violation of article 12 of

the Convention before the Federal Supreme Court. As the country’s highest court, the Federal

Supreme Court cannot, in principle, examine, of its own motion, claims not put forward by

the appellant. Consequently, the Federal Supreme Court judgment does not contain sufficient

information for a determination to be made on this point. The State Party invites the

Committee to declare this claim inadmissible for failure to exhaust domestic remedies under

article 7 (e) of the Optional Protocol.

4.4

The State Party notes that the author’s statement that he maintains the arguments put

forward in his appeals before the Federal Administrative Court and the Federal Supreme

Court to substantiate his claim of a violation of article 9 of the Convention, but that he does

not specify in any way how he considers the said article to have been violated or to which

arguments he is referring. The author also cites his arguments concerning article 8 of the

European Convention on Human Rights, presented to the domestic courts to substantiate his

claim of a violation of article 16 of the Convention on the Rights of the Child, but he does

not specify which of the arguments in his appeals before the Federal Administrative Court

and the Federal Supreme Court he is invoking. The reasons given in the communication do

not sufficiently demonstrate how article 16 of the Convention has been violated.

Consequently, these complaints are inadmissible under article 7 (f) of the Optional Protocol

because they are insufficiently substantiated.

4.5

Concerning the merits, the State Party considers that there has been no violation of

the Convention. Concerning the claim of a violation of article 3 (1) of the Convention, the

State Party observes that the present case concerns the author’s removal to Algeria under the

law on foreign nationals. N.F. was thus not a party to the domestic proceedings. She is entitled

to remain in Switzerland with R.F. The State Party also points out that articles 3 and 9 of the

Convention do not provide a basis for a direct claim to the granting or renewal of a residence

permit. They must, however, be taken into account, where appropriate, in assessing the

interests set out in article 8 (2) of the European Convention on Human Rights. The best

interests of the child is a point to which Swiss case law attaches great importance in the

context of obstacles to the enforcement of a deportation.

4.6

According to the State Party, N.F.’s fundamental interest in being able to grow up in

close contact with the author was taken into account in a similar way, whether under articles 3

and 9 of the Convention on the Rights of the Child or under article 8 of the European

Convention on Human Rights, which was considered by the State Secretariat for Migration,

the Federal Administrative Court and the Federal Supreme Court in their decisions. However,

the said authorities ruled that the author’s relationship with N.F. since he began living

separately from R.F. did not present the degree of intensity required by case law, and that the

conditions for giving effect to the right to respect for family life enshrined in article 8 of the

European Convention on Human Rights had not been met. In keeping with the principle of

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proportionality, the Federal Administrative Court, in its judgment of 27 November 2020,

undertook a careful assessment of the private and public interests at stake in the light of the

aforementioned article, taking into account the author’s relationship with N.F. and the filial

bond existing between them. The Federal Administrative Court did not refer explicitly to the

Convention, but it referred to the judgment of the Federal Supreme Court of 2 February 2018,

in particular to paragraph 5.2 and the case law cited therein, from which it is clear that the

overall assessment of interests to be carried out in the light of article 8 of the European

Convention on Human Rights and the related case law, which takes into account the interest

of children in maintaining regular contact with their parents, overlaps with that envisaged in

article 3 of the Convention on the Rights of the Child.5

4.7

The State Party notes that the Federal Administrative Court found that the author had

claimed to suffer from mental health problems that had prevented him from working since

his arrival in Switzerland and from paying maintenance for N.F. However, his invalidity

insurance claim was rejected on 28 August 2018 on the grounds that his earning capacity was

not affected. A comparison of the information contained in his files revealed that he had tried

to mislead the asylum authorities, the migration authorities, the Federal Administrative Court

and the psychiatrist who had followed up on his case in the context of the invalidity insurance

procedure, by trying to make it appear that he was suffering from serious mental health

problems linked to traumatic events he had allegedly experienced in Algeria in the hope of

obtaining authorization for his continued stay in Switzerland, where he would be dependent

on social assistance and invalidity insurance. According to the State Party, the Federal

Supreme Court took into account N.F.’s fundamental interest in living near the author as part

of the assessment of interests required by article 8 of the European Convention on Human

Rights. The author’s argument centred on the aforementioned article, and at no point did he

specifically invoke N.F.’s interest in living near him. The Federal Supreme Court also found

that the author did not have a particularly strong emotional bond with N.F., even though they

had become somewhat closer over the years. In its judgment, it emphasizes that, after living

with N.F. and R.F. for a year and a few months, the author had only seen N.F. about twice a

week for a few hours between 2012 and 2017 and, since 2017, “sometimes ... for a whole

day”, but never overnight. N.F. had waived all maintenance contributions, given the author’s

precarious financial situation and the fact that he had not made any particular efforts in that

regard. In his appeal to the Federal Supreme Court, the author attempted to prove his ties

with N.F. by relying on various facts that were not apparent from the Federal Administrative

Court’s judgment and that the Federal Supreme Court was therefore unable to take into

consideration. The latter concluded that neither the emotional nor the financial relationship

between the author and N.F. could be described as particularly strong. That diminished N.F.’s

interest in living near her father. The State Party thus considers that the Federal

Administrative Court duly examined N.F.’s best interests. The author’s private interest in

remaining in Switzerland could not prevail in view of his dependence on social assistance,

his conviction for staying illegally in Switzerland and his lack of social integration.

According to the State Party, it has not been established in the present communication that

the assessment of facts and evidence by the judicial authorities was arbitrary or amounted to

a denial of justice. The State Party invites the Committee to declare the claim of a violation

of article 3 of the Convention inadmissible because it is manifestly ill-founded under

article 7 (f) of the Optional Protocol.

4.8

With regard to the claim of a violation of article 9 of the Convention, the State Party

emphasizes that the author’s removal to Algeria was ordered pursuant to the law on foreign

nationals. The competent authorities gave due consideration to the best interests of N.F., who

has always lived with R.F. Moreover, the author and N.F. can still maintain contact, in

particular through modern means of communication. This claim is thus inadmissible because

it is manifestly ill-founded under article 7 (f) of the Optional Protocol.

4.9

Referring to the alleged violation of article 12 of the Convention, the State Party notes

that N.F. and R.F. wrote various letters, added to the file in the domestic proceedings and

transmitted to the Committee, that reflected N.F.’s relationship with the author. Both the State

Secretariat for Migration and the courts took these letters into account. Moreover, there is no

5 Federal Supreme Court, judgment ATF 144 I 91, 2 February 2018, para. 5.2.

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indication that a hearing of N.F. was necessary. The State Party points out that the Federal

Administrative Court carried out particularly detailed investigations. In particular, it invited

the author to provide further information on the intensity of his emotional and economic ties

with N.F. and on the specific ways in which he had maintained ties with her between her

birth and 22 August 2012, the date on which the parent-child relationship was recognized, as

well as after that date, urging him to indicate “the number of days, the number of hours per

day and the number of nights spent by N.F. at his home on average each month” during and

outside school holidays. The author produced a new written statement from R.F., dated

13 August 2020, containing sufficient information on his relationship with N.F., from which

it emerged that this relationship had never presented the degree of intensity required by case

law for it be regarded as comparable to regular visitation rights. In addition, the author, who

had never worked on a stable basis since arriving in Switzerland, had never paid regular and

substantial maintenance for N.F., without good reason. It follows from these facts that N.F.

was given the opportunity to express her opinion, which was duly taken into account by the

national authorities. The claim of a violation of article 12 of the Convention is thus

inadmissible under article 7 (f) of the Optional Protocol because it is manifestly ill-founded.

4.10

Concerning the claim of a violation of article 16 of the Convention, the State Party

refers to the decision of the State Secretariat for Migration and the judgments of the Federal

Administrative Court and the Federal Supreme Court, which carefully assessed the private

and public interests at stake and gave due consideration to N.F.’s best interests. It is clear

from these decisions that N.F. was not subjected to arbitrary or unlawful interference with

her family life. This claim is thus inadmissible under article 7 (f) of the Optional Protocol

because it is manifestly ill-founded.

Author’s comments on the State Party’s observations

5.1

In his comments of 6 March 2023, the author argues that the State Party’s concerns

about whether he may submit the communication are excessively formalistic. He submitted

the communication without legal assistance. He has had no formal education and it was

technically difficult for him to sign the electronic document. This omission was unintentional

and has already been corrected in subsequent exchanges. On 15 October 2021, he signed an

authorization for counsel to represent him. On the same date, counsel transmitted N.F.’s

signed consent. According to the author, it is evident from the arguments advanced in the

domestic proceedings and in the present communication that N.F. supports his efforts to

protect her interests, and she has submitted several letters opposing his deportation. R.F. has

supported the author in this regard. The author provides a copy of R.F.’s written consent for

him to submit the present communication to the Committee.

5.2

With regard to the State Party’s argument that he has not exhausted domestic remedies

in relation to his claim of a violation of article 12 of the Convention, the author submits that

at the time that the decision of the State Secretariat for Migration was taken, on 6 September

2018, N.F. was 11 years old and was clearly of an age to be questioned in order for her

opinion to be taken into account. The author asserts that, since she was not heard, her best

interests could not be properly determined. He notes that the Committee has expressed

concern on a number of occasions about the State Party’s inadequate implementation of

children’s right to be heard.6

5.3

The author disputes the assertion that his claims of violations of articles 9 and 16 of

the Convention are inadmissible as manifestly ill-founded. The arguments he put forward in

his appeal to the Federal Supreme Court were highly developed and based almost exclusively

on the existence of his relationship with N.F. In particular, he detailed what it would mean

for N.F. and her family life if he were deported. He contended that the factual findings

reached by the Federal Administrative Court concerning the nature of his relationship with

N.F. were arbitrary and contrary to the evidence he had presented. He argued that, overall,

the balance tipped in favour of renewing his residence permit when N.F.’s best interests were

properly taken into account. His arguments before the Federal Administrative Court were

6 CRC/C/CHE/CO/2-4, para. 29; CRC/C/CHE/CO/5-6, para. 20 (a); M.K.A.H. v. Switzerland

(CRC/C/88/D/95/2019), para. 10.11; E.A. and U.A. v. Switzerland, paras. 7.3 and 9; and A.B. v.

Finland (CRC/C/86/D/51/2018), paras. 12.2 and 12.4.

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therefore sufficiently developed to be regarded as justiciable before the Committee. Although

his argument is formulated in language inspired by article 8 of the European Convention on

Human Rights, the analysis of the rights concerned is similar. However, the author cannot be

reproached for having adduced before the Federal Administrative Court arguments that were

not very well developed, given that he was indigent and called on the assistance of a social

worker to lodge his appeal with that Court.

5.4

On the merits, the author argues that the best interests of a child lawfully residing in

the territory of a State Party must be taken into account in any proceedings for the deportation

of a parent where such deportation would have the effect of separating the child from his or

her parent.7 He also argues that, in the case of M.P.E.V. and others v. Switzerland, the

European Court of Human Rights found a violation of article 8 of the European Convention

on Human Rights on the grounds that the domestic authorities had not considered the best

interests of the applicant’s adolescent daughter, who lived with her mother, who herself had

custody, as in the author’s case, but that, unlike the applicant, the author was legally resident

in Switzerland and the canton in which he lived had recommended the renewal of his

residence permit. The author emphasizes that the canton made the recommendation despite

the adverse elements in his file and on the basis of his family life with N.F. and N. The facts

in the present communication are thus more convincing than those in M.P.E.V and others v.

Switzerland.

5.5

The author argues that the best interests of the child are not mentioned anywhere in

the judgments and that, consequently, it is not clear that the courts considered N.F.’s best

interests.8 He asserts that the reasoning of the Federal Administrative Court referred to by the

State Party describes only his asylum, residence permit and invalidity insurance proceedings

and does not concern N.F. The author accepts that the inconsistencies in his files do not create

a good impression, but the analysis by the Federal Administrative Court cannot be substituted

for the duty of the domestic authorities to take into account the best interests of N.F., who

was directly affected by their decision. According to the author, a mere reference by the

Federal Administrative Court to the Federal Supreme Court judgment of 2 February 2018

can in no way compensate for the total lack of any real assessment of N.F.’s interests. Any

assessment undertaken was very superficial, since it did not go beyond a simple reference to

case law.9 The manifest lack of reasoning in the domestic decisions regarding the manner in

which N.F.’s best interests were taken into account in the consideration of the author’s

application for renewal of his residence permit is sufficient to establish that those decisions

were arbitrary and constitute a denial of justice. The factual findings of the Federal

Administrative Court and the Federal Supreme Court that the author did not have a

“particularly strong attachment” to N.F. are also arbitrary insofar as they are contradicted by

the evidence presented in the domestic proceedings and before the Committee, including

letters from R.F. and N.F., photographs of the author with N.F. and the author’s own account.

The State Party has not refuted any of this evidence. According to the author, the criterion of

an “economic relationship” finds no support in the case law of the European Court of Human

Rights or the Committee.

5.6

The author notes that R.F.’s letters describe the development and intensification of his

relationship with N.F. R.F. also mentions that she and her daughters have daily contact with

the author by telephone and that he has always treated N. as if she were his own daughter.

She states that the relationship with the author is “of paramount importance” for her daughters

and that “they would be extremely affected if they could no longer maintain this emotional

bond with their father”. The State Party has not put forward any argument or evidence to

dispute these points. The State Party’s conclusion that their relationship is not particularly

strong is not supported by the case file. The author states that he thus maintains his claim of

a violation of article 9 of the Convention. The author also maintains his argument that the

failure to hear N.F. in the domestic proceedings, which affected her life, constitutes a

7 Committee on the Rights of the Child, general comment No. 14 (2013), para. 19; European Court of

Human Rights, M.P.E.V. and others v. Switzerland; and Court of Justice of the European Union, M.A.

v. Belgian State.

8 European Court of Human Rights, El Ghatet v. Switzerland, para. 53.

9 Committee on the Rights of the Child, general comment No. 14 (2013), para. 97.

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violation of article 12 of the Convention.10 The author points out that the State Party could

not determine N.F.’s best interests without first hearing her and considering her point of

view.11 The fact that the evidence he presented in the domestic proceedings was not taken

into account led to disproportionate interference with N.F.’s right to a family life under

article 16 of the Convention.

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 20 of its rules of procedure under the Optional Protocol,

whether the communication is admissible under the Optional Protocol.

6.2

The Committee notes that the State Party invites it to satisfy itself that the

communication was properly submitted and is in N.F.’s best interests. It also notes that, by a

statement dated 13 October 2021, N.F. confirmed her consent to the author’s submission of

the communication on her behalf. Accordingly, the Committee concludes that it is not

prevented from examining the complaint under article 5 (2) of the Optional Protocol.

6.3

The Committee notes the State Party’s observation that the author has failed to exhaust

domestic remedies in relation to his claim of a violation of article 12 of the Convention and

that it is therefore inadmissible under article 7 (e) of the Optional Protocol. It also notes the

author’s argument that the best interests of the child cannot be properly determined without

the child’s first being heard and his or her views being duly taken into account, and it

therefore considers that these claims are inextricably linked to the rights set out in article 3 (1)

of the Convention. However, the Committee considers that the claims under article 12 should

have been raised independently before the national authorities in order to give the State Party

the opportunity to remedy the alleged violation and given the existence of appropriate legal

avenues for requesting such a hearing.12 The Committee finds, therefore, that the claims

raised under article 12 of the Convention have not been invoked, either explicitly or in

substance, before the national authorities and concludes that they are inadmissible under

article 7 (e) of the Optional Protocol.

6.4

The Committee also notes the State Party’s contention that the communication must

be declared inadmissible as it is manifestly ill-founded. However, it is of the view that, for

purposes of admissibility, the author has sufficiently substantiated his claims under

articles 3 (1), 9 and 16 of the Convention, namely, that the decision to return him to Algeria

would result in his separation from N.F. and would constitute arbitrary interference with the

family and that N.F.’s best interests were not a primary consideration in those decisions. The

Committee thus declares these claims admissible and proceeds with its consideration of the

merits.

Consideration of the merits

7.1

In accordance with article 10 (1) of the Optional Protocol, the Committee has

considered the present communication in the light of all the information made available to it

by the parties.

7.2

The main question before the Committee is whether, in the circumstances of the

present case, removing the author to Algeria, thus separating him from N.F., would violate

the latter’s rights under articles 3 (1), 9 and 16 of the Convention. The Committee must

therefore consider whether such a separation is justified in the light of the State Party’s

obligations under the Convention and whether N.F.’s best interests were a primary

consideration in the proceedings leading to the decision to remove the author.

10 Committee on the Rights of the Child, general comment No. 12 (2009), paras. 1 and 2; and general

comment No. 14 (2013), paras. 6 (c) and 14 (b).

11 Committee on the Rights of the Child, general comment No. 12 (2009), para. 74; and general

comment No. 14 (2013), para. 74.

12 See Me. F. et al. v. Switzerland (CRC/C/98/D/148/2021); and K.K. v. Switzerland

(CRC/C/92/D/110/2020), para. 8.3.

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7.3

The Committee notes from the case file that the State Secretariat for Migration refused

to renew the author’s residence permit on the grounds that he did not meet the criteria set out

in article 50 (1) (a) or (b) of the Federal Act on Foreign Nationals and Integration, because,

respectively, his marriage to I.D. had lasted less than three years and his continued stay in

Switzerland was not necessary for compelling personal reasons. The Committee notes that,

in this context, the State Secretariat held that, under article 8 of the European Convention on

Human Rights, his interest in being able to meet N.F. and N. could not override the public

interest in refusing him a residence permit. The Committee also notes that the Federal

Administrative Court and the Federal Supreme Court dismissed the author’s appeals, in

judgments dated 27 November 2020 and 10 February 2021.

7.4

The Committee notes the author’s arguments that the State Party’s judicial authorities

failed to carry out an assessment of N.F.’s best interests. It also notes that the author disputes

the domestic authorities’ finding that he does not have a “particularly strong emotional bond”

with her, a finding allegedly contradicted by the evidence provided by the author, and that

the domestic authorities placed too much weight on the lack of financial contributions.

7.5

The Committee recalls that, pursuant to article 9 (1) of the Convention, States Parties

must ensure that children are not separated from their parents against their will, except when

the competent authorities, subject to judicial review, determine, in accordance with

applicable law and procedures, that such separation is necessary for the best interests of the

child. It also recalls its general comment No. 14 (2013), according to which the right of

children to have their best interests taken into account as a primary consideration is a

substantive right, a fundamental interpretative legal principle and a rule of procedure. 13

Therefore, the legal obligation to assess the best interests of the child applies to all decisions

and actions that directly or indirectly affect the child, even if they are not the direct target of

the measure; the Committee specified that, in situations in which decisions would have a

major impact on children, a greater level of protection and detailed procedures to consider

their best interests were appropriate. 14 In this respect, the Committee considers it

indispensable to carry out the assessment and determination of the child’s best interests in

the context of potential separation of a child from his or her parents.15 Lastly, the Committee

recalls that, as a general rule, it is for national authorities to examine the facts and evidence

and to interpret domestic law unless such an examination or interpretation is clearly arbitrary

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

law or assess facts and evidence in place of the national authorities but to ensure that their

assessment is not arbitrary and does not amount to a denial of justice and that the best interests

of the child are a primary consideration in that assessment.16

7.6

While acknowledging the State Party’s legitimate interest in enforcing its criminal

and migration laws and decisions, the Committee considers that this interest needs to be

balanced against children’s right not to be separated from their parents.17 In this balancing,

particular weight should be given to the necessity and proportionality of the return order, as

well as the particular impact that the separation would have on the children, taking into

account their views. In the present case, the Committee notes the State Party’s observation

that its authorities have given due consideration to the best interests of N.F. The Committee

notes, in particular, that the Federal Administrative Court carried out investigative measures

and gave the author the opportunity to present additional information, notably on the intensity

of his ties over the years, urging him to indicate “the number of days, the number of hours

per day and the number of nights spent by N.F. at his home on average each month” during

and outside school holidays. It also notes that the author availed himself of that opportunity,

presenting several letters, including some from N.F. and R.F., which describe the author’s

relationship with N.F. The Committee notes that, in fact, the author does not dispute the

factual findings of the domestic proceedings concerning the evolution of the frequency of the

visits. In this regard, the Committee also notes that the Federal Administrative Court took

13 Committee on the Rights of the Child, general comment No. 14 (2013), para. 6.

14 Ibid., paras. 19 and 20.

15 Ibid., paras. 58 and 59.

16 U.A.I. v. Spain (CRC/C/73/D/2/2015), para. 4.2; Navarro Presentación and Medina Pascual v. Spain

(CRC/C/81/D/19/2017), para. 6.4; and A.R.G. v. Spain (CRC/C/85/D/92/2019), para. 4.2.

17 C.C.O.U. et al. v. Denmark (CRC/C/94/D/145/2021), para. 8.7.

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into account the following facts in particular: N.F. had always lived with R.F.; the author had

only lived in a common household with them for “a year and a few months”; the parent-child

relationship was not recognized until several years after N.F.’s birth; between 2012 and 2017,

the author saw her twice a week for a few hours; and, since 2017, they have seen each other

twice a week and N.F. has spent a few nights at his home during the school holidays.

Consequently, the Committee considers that, while the author contests the domestic courts’

assessment that this evidence demonstrates that he does not have a “particularly strong

emotional bond” with N.F., he has not substantiated his claim that this assessment was

manifestly arbitrary or amounted to a denial of justice. Therefore, and given that N.F. has

reached the age of 18, the Committee considers that the information contained in the case file

does not allow it to conclude that the State Party has failed to assess the specific impact on

N.F. of her separation from the author or that the author’s return to Algeria would violate

N.F.’s rights under the Convention.

7.7

In the light of the foregoing, the Committee concludes that the removal of the author

to Algeria would not constitute a violation by the State Party of the rights enshrined in

articles 3 (1), 9 and 16 of the Convention.

8.

The Committee, acting under article 10 (5) of the Optional Protocol, finds that the

facts before it do not disclose a violation of articles 3 (1), 9 and 16 of the Convention.