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 authors of the communication were assisted in preparing complaints. Subsequently, the complaint was communicated to Spain.
Since the State party did not provide any additional reasons why A.E.A. (the author's son) 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 on the Rights of the Child had been violated. The Committee also considered that A.E.A.'s non-attendance at school for almost 2 years constituted a violation of his right to non-discrimination within the meaning of article 2 of the Convention, considered in conjunction with article 28 of this international treaty. The Committee found that the best interests of A.E.A. 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 on the Rights of the Child.
As seen from the text of the Considerations, the author argued: since A.E.A. (the author's son) 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 Rights of the Child on the basis of his Moroccan origin and lack of a legal residence permit (paragraph 3.1 of the 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" (paragraph 10 of the Considerations).
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 on the Rights of the Child enshrines not only the right of every child to access education (article 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 States parties to 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. 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).
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).
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 on the Rights of the Child; (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 in conjunction with article 28 of the Convention; and (c) whether the process in which the temporary admission of A.E.A. was requested was taken into account. In particular, his best interests 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 stressed: 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 noted the author's claim, not disputed by the State party, according to which sister A.E.A. had been enrolled in school since the 2018/2019 academic year. Finally, the Committee stressed that, despite confirmation by the Spanish National Police of his 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 Spanish Ministry of Education and Vocational Training exercised its powers and decided to enroll him in school. All of the above indicated that, 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 Melilla on a legitimate basis as a condition for gaining access to the education system (paragraph 12.5 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; in the Committee's view, the documents submitted by the author to apply for A.E.A.'s admission to school contained an indication of her place of residence, which imposed a positive obligation on the State party carry out the necessary checks to confirm her actual residence. The Committee noted the following: in this case, the Spanish National Police confirmed the actual residence of A.E.A. after visiting his home in November 2020, that is, 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 1.5 years is 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 was 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: Although the State party itself has recognized that persons residing in its territory have an unlimited right to education, however, the author has demonstrated that even when the Spanish 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 2 years, the School represented a violation of his right to non-discrimination within the meaning of article 2 of the Convention, considered in conjunction with article 28 (paragraph 12.8 of the Views).
With regard to the violation of article 3 of the Convention on the Rights of the Child, the Committee noted: the State party has not provided information on how the best interests of A.E.A. were the main consideration during the judicial and administrative proceedings in which he participated in connection with the application for his temporary admission to school. The Committee stressed that the Administrative Court of Melilla refused A.E.A. in temporary enrollment in school, deciding that "the public interest 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, at its discretion, 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, considered it greater than the benefits that A.E.A. I would benefit from temporary access to the education system. Moreover, the court concluded that it would be worse for A.E.A. 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: it is unknown whether he speaks Spanish or has 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. were not a primary consideration in conducting 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 article 3, paragraph 1, of the Convention, read in conjunction with article 28 of the Convention on the Rights of the Child, were violated.