The case of H.M. v. Spain. Views of the Committee on the Rights of the Child dated May 31, 2021. Message No. 115/2020.
In 2020, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
As seen from the text of the Considerations, the author explained that since A.E.A. was born in Melilla and his residence in that city was convincingly proven, the refusal to enroll him in school could only be explained by discrimination in violation of article 2 of the Convention on the basis of his Moroccan origin and lack of a legal residence permit (paragraph 3.1 Considerations). The author referred to general comment No. 1 (2001) of the Committee on the Rights of the Child, according to which "discrimination on any grounds listed in article 2 of the Convention, regardless of whether it is explicit or implicit, offends the human dignity of the child and may undermine and even nullify the child's ability to enjoy opportunities related to education" (item 10).
The Committee's legal position: According to article 2 of the Convention on the Rights of the Child, States parties must respect and ensure access to education for all children under their jurisdiction, without distinction of any kind. At the same time, since the exercise of the rights enshrined in the Convention is conditional on access to education, it is necessary that the best interests of the child be given priority in any process aimed at getting a child to school (paragraph 12.2 of the Considerations).
The right to education "embodies the indivisibility and interdependence of all human rights" and its importance is such that the Convention enshrines not only the right of every child to access education (art. 28), but also "an individual and subjective right to a specific quality of education." In addition, the right to education should be guaranteed to all children of compulsory school age, regardless of their nationality or administrative status (paragraph 12.4 of the Considerations).
Article 2 of the Convention clearly establishes the obligation to respect and ensure the rights provided for in it. It follows that the obligation to respect [the right to education] requires that States parties avoid taking measures that impede or impede the realization of the right to education. According to the obligation to protect these rights, States parties must take measures to prevent interference by third parties in the exercise of the right to education. The obligation to implement (facilitate) provides for the adoption by participating States of positive measures to ensure that individuals and communities have the opportunity and assistance to enjoy the right to education. Finally, the participating States have an obligation to fulfil (ensure) the right to education. As a general rule, States parties are obliged to implement (ensure) a specific right under the Covenant when a person or group of persons, for reasons beyond their control, cannot independently exercise this right, relying on the means available to them (paragraph 12.6 of the Considerations). The Committees urge States to immediately change existing rules and practices that prevent migrant children, in particular undocumented children, from enrolling in schools and other educational institutions (paragraph 60).
As a rule, the examination of facts and evidence and the interpretation of national legislation fall within the competence of national authorities, except in cases where such examination or interpretation is obviously arbitrary or amounts to a denial of justice (paragraph 12.7 of the Views) (See, in particular, the Committee's decisions on inadmissibility in the case of A.A.A. v. Spain (CRC/C/73/D/2/2015), paragraph 4.2, and in the case of Navarro Presentacion et al. v. Spain (CRC/C/81/D/19/2017), paragraph 6.4.).
Discrimination prohibited by article 2 of the Convention may be "explicit or implicit". This means that discrimination can be de jure or de facto, as well as direct or indirect (paragraph 12.8 of the Considerations).
States Parties have an obligation to respect and ensure the right to education for every child within their jurisdiction, without discrimination of any kind. The exercise of this right cannot be left to someone's discretion, apart from checking the actual place of residence (paragraph 12.9 of the Considerations).
The Committee's assessment of the factual circumstances of the case: the following three questions had to be clarified in the case: (a) whether the State party violated A.E.A.'s right to access education within the meaning of article 28 of the Convention; (b) whether the refusal to enroll A.E.A. in school constituted discriminatory treatment within the meaning of article 2 of the Convention, considered in conjunction with article 28 of the Convention; and (c) whether, during the process in which A.E.A.'s temporary admission to school was requested, his best interests were taken into account within the meaning of article 3 of the Convention, also considered in conjunction with article 28 of the Convention.
The Committee took note of the author's argument that, despite the formal recognition of this right in domestic law, the facts showed that A.E.A., like all children living in Melilla without permanent status, in practice face obstacles that prevent them from attending school. The Committee noted: in this case, both the State party and the author agree that the right to education in the territory of the State party is unequivocally recognized for all children on an equal basis, regardless of their nationality or administrative status (paragraph 12.4 of the Views).
The Committee took into account: As recognized by the State party, the provincial Brigade for Foreigners and Border Control of the Spanish National Police, after visiting A.E.A.'s house in November 2020, confirmed that he lived with his family at the address indicated by the author in her statements that she submitted to the judicial and administrative authorities. The Committee also pointed to the author's claim, not disputed by the State party, according to which sister A.E.A. was enrolled in school from the 2018/19 academic year. Finally, the Committee stressed that, despite confirmation by the National Police of the actual place of residence, the relevant educational authority continued to require confirmation of his "legal residence", which prevented A.E.A. from enrolling in school until the Ministry of Education and Vocational Training exercised its powers and decided to enroll him in school. All of the above testified - although national legislation recognizes the right to education for all children, regardless of their administrative status, however, in practice, the competent local education authorities continued to require A.E.A. to confirm the fact of residence in the city legally as a condition for gaining access to the education system (paragraph 12.5 of the Considerations).
The Committee took note of the State party's argument that none of the documents submitted by the author was serious evidence of her actual place of residence; the documents submitted by the author to apply for A.E.A.'s admission to school were at least an indication of her place of residence, which imposed a positive burden on the State party the obligation to carry out the necessary checks to confirm her actual residence. The Committee noted the following - in this case, the National Police confirmed the actual residence of A.E.A. after visiting his home in November 2020, i.e. almost a year and a half after the author submitted an application for her son's enrollment in school. The Committee considered that, in addition to the obligation to enroll A.E.A. in school immediately after confirmation of his actual residence in Melilla, the State party should have taken all necessary measures to confirm his actual residence in an expedited manner. The Committee could not agree that a year and a half was a reasonable time to fulfill this obligation. Since the State party did not provide any additional reasons why A.E.A. was not immediately enrolled in school after official confirmation of his actual residence in Melilla, the Committee decided that his right to access education in accordance with article 28 of the Convention had been violated (paragraph 12.7 of the Views).
With regard to the second issue to be clarified, whether the refusal to enroll A.E.A. in school constitutes discriminatory treatment within the meaning of article 2 of the Convention, the Committee found that in this case there was a de facto clearly differentiated approach based on A.E.A.'s lack of permanent administrative status and, consequently, on his national origin. The Committee again noted that although the State party itself recognized that persons residing in its territory have an unlimited right to education, however, the author showed that even when the National Police officially confirmed the actual residence of A.E.A. in Melilla, the local authorities continued to refuse to enroll him in school. In the absence of any justification by the State party for such a differentiated approach based on the administrative status of A.E.A., the Committee considered that the non-attendance of A.E.A. For almost two years, the School represented a violation of his right to non-discrimination within the meaning of article 2 of the Convention, read in conjunction with article 28 (paragraph 12.8 of the Views).
With regard to the violation of article 3 of the Convention, the Committee noted that the State party had not provided information on how the best interests of A.E.A. had been the main consideration during the judicial and administrative proceedings in which he had participated in connection with the application for his temporary admission to school. The Committee stressed that the Administrative Court No. 2 of Melilla refused A.E.A. temporary admission to school, deciding that "public interests should prevail over just the parents' expectation that their child will have access [...] to the Spanish education system." In the context of the application for temporary training before determining the actual residence of A.E.A., the court took the position that, at its discretion, it went beyond checking the actual residence and carried out an assessment of interests. The court weighed the generalized and unconfirmed damage that could be caused to all children of the school where A.E.A. could study in the event of his admission, considering it greater than the benefits that A.E.A. would receive from temporary access to the education system. Moreover, the court concluded - for A.E.A. it would be worse to get temporary access to education, which could later be revoked. The lack of an individual approach to taking into account the best interests of A.E.A. was evidenced by the fact that the court stated that it was not known whether he spoke Spanish or had an academic level comparable to the level of students at the school he wanted to attend. In addition, the court did not take into account the fact that his sister had previously been enrolled in school. In the light of the above, the Committee considered that the best interests of A.E.A. They were not a primary consideration in carrying out the procedure for his preventive schooling in violation of article 3, paragraph 1, of the Convention, considered in conjunction with article 28 of the Convention (paragraph 12.9 of the Views).
The Committee's conclusions: article 28 of the Convention, article 2 of the Convention, read in conjunction with article 28 of the Convention, as well as paragraph 1 of article 3 of the Convention, read in conjunction with article 28 of the Convention, were violated.