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Family Law

The leading authority on all aspects of family law

12 OCT 2007

IMMIGRATION: Mubilanzila Mayeka v Belgium (Application no 13178/03)

(European Court of Human Rights; 12 October 2006)

After the mother had been granted refugee status in Canada, the mother's brother, who was a Dutch national, brought the 5-year-old child from Congo to Europe without appropriate travel or immigration papers, intending to arrange transport to Canada. The child was refused leave to enter Belgium and detained by the authorities; the mother's brother left the child with the Belgian immigration authorities and returned to The Netherlands. The child was detained for almost 2 months in a transit centre designed for adults. The mother was informed of the child's whereabouts and investigations were made with the Canadian authorities. Eventually the child was deported to the Congo; neither the mother nor any other relatives of the child was informed of the deportation, and, as there was no one available to meet the child in the Congo, the Congolese authorities took charge of her. Eventually the child was granted a Canadian visa and flew directly to Canada.

There had been breaches not only of Art 8, but also of Art 3 and Art 5. A child who was an illegal immigrant in a foreign country, unaccompanied by family, was in an extremely vulnerable position. The State had owed the child a duty to provide care and protection. The child's detention in a camp designed for adults amounted to inhuman treatment. The circumstances of the deportation also showed such a total lack of humanity towards the child as to amount to inhuman treatment. The effect of the detention was to separate the child from the member of the family in whose care she had been placed and who was responsible for her welfare, with the result that she became an unaccompanied foreign minor. The detention had also significantly delayed the reunification of the child with the mother. In the absence of any risk of the child seeking to evade the supervision of the Belgian authorities, her detention in a closed centre for adults had been unnecessary.

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