The author of the communication is I.D., a national of Guinea, born on 7 February 2003. He claims that the State party wrongly determined that he was an adult and ordered his removal to Spain under the Dublin III Regulation,4 thereby violating his rights under articles 3, 6 (1), 8, 12, 20 (1), 22, 24 and 28 of the Convention. The author is represented by counsel. The Optional Protocol entered into force for the State party on 24 July 2017.
- Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, Official Journal of the European Union, L 180, 29 June 2013, p. 31. ↩
In March 2018, the author left Guinea following the riots that broke out in the country after the February 2018 elections. The shop of his uncle, with whom he lived, was completely destroyed, and the author did not dare leave his house for fear of being targeted. On 11 June 2018, the author arrived in Spain and declared that he was born on 7 February 2003. He was transferred to a centre for asylum seekers in Cadiz. As he did not want to apply for asylum in Spain, the author decided to travel to Switzerland. On 18 July 2018, the author arrived in Switzerland, where he applied for asylum. On 27 August 2018, the State Secretariat for Migration dismissed his application, ordering his removal to Spain. The State Secretariat based its decision on the absence of identity documents proving the author’s status as a child, on his statements, which were deemed evasive and inconsistent in several respects, including his schooling, and on the fact that the Spanish authorities had agreed to take him back into their care at the State party’s request. On 10 October 2018, the author filed a request for reconsideration of his application, providing documents to establish his true date of birth, and thus his status as a child (a substitute certificate in lieu of a birth certificate from the Conakry Court of First Instance, and the extract from the civil status register of Ratoma commune, in which the birth certificate had been transcribed). On 17 October 2018, the State Secretariat rejected the request for reconsideration of the dismissal decision. On 12 November 2018, the author lodged an appeal with the Federal Administrative Court against the decision of the State Secretariat. On 12 October 2020, the Court dismissed the author’s appeal. In particular, it found that the documents submitted by the author to demonstrate his status as a child lacked decisive probative value. The author also explains that, in parallel, on 29 January 2019, the Court for Adult and Child Protection of the Republic and Canton of Geneva recognized him as a child.
In accordance with article 6 of the Optional Protocol, on 20 November 2020, the Committee, through its Working Group on Communications, requested the State party to adopt interim measures to avoid the removal of the author to Spain.
On 17 February 2021, the State party submitted its observations on admissibility, and requested the Committee to examine the admissibility of the complaint separately from the merits. The State party asserted that the communication should be considered inadmissible ratione personae as incompatible with the provisions of the Convention, under article 7 (c) of the Optional Protocol, as the author had failed to demonstrate that he was a child. The State party also considers that the author has not exhausted domestic remedies, as he did not invoke any violation of the Convention during the proceedings. The State party also asked that the request for interim measures be lifted.
On 17 March 2021, the author submitted his comments on the admissibility of the complaint. He requested the Committee not to consider the admissibility of the complaint separately from the merits.
On 23 March 2021, the Committee, through its Working Group on Communications, decided to refuse the State party’s request for the admissibility of the communication to be considered separately from the merits. The State party’s request to lift the interim measures was granted, as the author had already reached the age of 18.
On 8 July 2021, the State party requested discontinuance of the communication, as the State Secretariat for Migration had initiated a review of the author’s asylum application and he was no longer at risk of being removed to Spain.
On 12 October 2021, the Committee, through its Working Group on Communications, refused the State party’s request for the communication to be discontinued.
On 3 November 2021, the State party requested suspension of the communication pending resolution of the internal asylum procedure.
On 4 November 2021, the Committee, through its Working Group on Communications, decided to grant the State party’s request for the communication to be suspended.
On 4 October 2022, the State party again requested that the case be discontinued. It noted that, on 30 September 2022, the State Secretariat for Migration had completed its examination of the author’s asylum application and issued a decision. According to the decision, the author had been recognized as a child at the time of his entry into Switzerland, and his personal data would therefore be modified accordingly in the central migration information system. In addition, although the author had not been granted refugee status and his asylum application had been rejected, the State Secretariat had decided, on the basis of article 83 of the Federal Act on Foreign Nationals and Integration of 16 December 2005, that he should be provisionally admitted to Switzerland on the grounds that his removal was not reasonable. The author was thus guaranteed that he could remain in Switzerland until a decision was taken to lift his provisional admission. If his provisional admission were to be lifted, the author could, if necessary, use the legal means at his disposal to object.
On 13 October 2022, the author confirmed that he had been given provisional admission to Switzerland and that he had been recognized as a child at the time of his entry into the country.
In view of the fact that the author had been recognized as a child when he entered Switzerland and had been provisionally admitted to the State party, the Committee considers that the case has become moot and decides to discontinue consideration of communication No. 128/2020, in accordance with article 26 of its rules of procedure under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure.