issued by the Registrar of the Court

ECHR 076 (2019)

28.02.2019

Failure to provide care for an unaccompanied foreign minor, aged 12,

in the “lande de Calais” shanty town was in breach of the Convention

In today’s Chamber judgment¹in the case of Khan v. France (application no. 12267/16) the European

Court of Human Rights held, unanimously, that there had been:

a violation of Article 3 (prohibition of inhuman and degrading treatment) of the European

Convention on Human Rights.

The case concerned the failure by the French authorities to provide an unaccompanied foreign

minor with care before and after the dismantling of the makeshift camps set up in the southern

section of the “lande de Calais" (“Calais heath”). Large numbers of people hoping to seek asylum in

the United Kingdom had for many years been living there in tents or huts, in overcrowded conditions

without even the most basic sanitation.

The Court was not convinced that the authorities had done all that could reasonably be expected of

them to fulfil the obligation of protection and care incumbent on the respondent State vis-à-vis an

unaccompanied foreign minor unlawfully present on French territory, that is to say an individual

belonging to the category of the most vulnerable persons in society. For several months the

applicant had thus lived in the “lande de Calais” shanty town, in an environment completely

unsuited to his status as a child and in a situation of insecurity rendered unacceptable by his

young age.

The Court held that the extremely negative circumstances prevailing in the makeshift camps and the

failure to enforce the court order intended to secure protection for the applicant amounted to a

violation of the respondent State’s obligations, and that the Article 3 severity threshold had been

reached. It deduced that on account of the failure of the French authorities to take the requisite

action, the applicant had found himself in a situation tantamount to degrading treatment.

Principal facts

The applicant, Jamil Khan, is an Afghan national who was born in 2004 and lives in Birmingham

(United Kingdom).

By order of 2 November 2015 the Lille urgent applications judge, at the prompting, in particular, of a

number of non-governmental organisations (NGOs), instructed the Pas-de-Calais Prefect to ascertain

the number of unaccompanied minors in distress and to co-operate with the Pas-de-Calais

Département in placing them in care. The judge also ordered her to install sanitary facilities on the

“lande de Calais” site.

The Government submitted that all the amenities and sanitary and security facilities ordered by the

urgent applications judge had been installed. The applicant stated that the Ombudsman’s General

Recommendation of 20 April 2016 had mentioned that although the numbers of unaccompanied

minors had indeed been ascertained as of January 2016, the counting exercise had not led to the

actual provision of care for those minors. The Département Council had merely organised patrols by

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

under-trained individuals, without the assistance of translators to prepare for the details of care

provision.

On 12 February 2016 the Pas-de-Calais Prefect announced her decision to order the evacuation of

the southern section of the “lande de Calais” site. The evacuation took place between 29 February

and 16 March 2016. The northern section was evacuated at the end of October 2016.

The applicant submits that he left Afghanistan at the end of August 2015 for the United Kingdom,

and that he reached Calais by following refugees in the hope of finding some way of crossing to

England. He therefore settled into a hut in the southern section of the “lande de Calais” and

contacted a number of NGOs, including “Cabane juridique” (“the Legal Hut”). On 19 February 2016

that NGO lodged with the Children’s Judge an application for a provisional care order for the

applicant. The Children’s Judge appointed a statutory representative and ordered the applicant’s

provisional placement at the Calais Department for Children’s and Family Affairs as of 23 February

2016.

The applicant pointed out that neither the Département nor the Prefecture had taken any action to

provide for him. The Government observed that the social welfare services had been unable to

enforce the placement order because the applicant had failed to attend the welfare offices and his

lawyer, his statutory representative and the NGO involved had not informed them of his

whereabouts.

During the week of 20 March 2016 the applicant had left the “lande” site and entered Britain

illegally, where he had been taken into care by the UK child welfare agencies.

Complaints, procedure and composition of the Court

Relying, in particular, on Article 3 of the Convention (prohibition of inhuman and degrading

treatment), the applicant complained of the French authorities’ failure to comply with their duty to

protect unaccompanied foreign minors like himself on the “lande de Calais” site. He complained that

the order provisionally placing him in the child welfare centre had not been enforced

The application was lodged with the European Court of Human Rights on 3 March 2016.

On 2 March 2016, during the operations to dismantle the southern section of the “lande de Calais”,

15 unaccompanied foreign minors, including the applicant, as well as two NGOs, lodged a request

for the application of Rule 39 of the Rules of Court. They requested, in particular, a stay of the

evacuation order and an indication to the State to detail the action taken to support and rehouse the

persons evacuated. On 9 March 2016, upon receipt of the parties’ replies, the Court decided not to

indicate to the Government the interim measures requested. It took note of the fact that the

Government was undertaking to provide care for the minors in question as soon as they had been

located, pursuant to the provisional placement orders issued by the Children’s Judge.

Judgment was given by a Chamber of seven judges, composed as follows:

Angelika Nußberger (Germany), President,

Yonko Grozev (Bulgaria),

André Potocki (France),

Mārtiņš Mits (Latvia),

Gabriele Kucsko-Stadlmayer (Austria),

Lәtif Hüseynov (Azerbaijan),

Lado Chanturia (Georgia),

and also Milan Blaško, Deputy Section Registrar.

Decision of the Court

The Court noted the applicant’s young age, having arrived in France as an 11-year-old. He had been

12 when the southern section of the “lande de Calais” had been dismantled and he had left the

country. The Court observed that he had lived in the “lande de Calais” for some six months.

The Court noted that the Government did not dispute the fact that the applicant had not been

provided with care by the authorities.

The Court noted that in its order of 23 November 2015 the Conseil d’Etat urgent applications judge

had used the word “shanty town” to describe the “lande de Calais” site, had found that the provision

for the applicants’ basic needs in terms of hygiene and supplies of drinking water had been

“manifestly inadequate”, and had pointed to “negligence such as to expose them to patently

inhuman and degrading treatment, thus seriously, and manifestly unlawfully, infringing a

fundamental freedom”. Following the evacuation of the southern section of the site, many of the

occupants had moved to the northern section, which had exacerbated the overcrowding there.

Owing to the failure of the authorities to protect the applicant, and despite support from various

NGOs, he had therefore spent six months living in an environment manifestly unsuitable for children,

characterised by insalubrity, precariousness and insecurity. On 22 February 2016, on the grounds of

the applicant’s perilous situation, the Children’s Judge of the Boulogne-sur-Mer Regional Court had

ordered his placement with the child welfare department. The Court considered that the failure to

provide care, which had already been extremely problematic before the southern section of the site

had been dismantled, had become even worse after that operation because of the demolition of the

hut in which he had been living and the general deterioration of living conditions on the site.

The very fact that the applicant had had to wait for the Children’s Judge to order his placement

before his case could actually be considered by the competent authorities raised questions as to the

respondent State’s compliance with the obligation under Article 3 of the Convention to protect and

provide care for unaccompanied foreign minors. It followed that the competent authorities had not

even identified the applicant as such, even though he had been present on the “lande de Calais” for

several months and, as a young child, should have been very conspicuous. It would therefore appear

that the means employed to identify unaccompanied foreign minors present on the site had been

inadequate.

The Court observed that the unaccompanied foreign minors present on the site had not always

accepted the provision offered to them. Nevertheless, it noted that the Ombudsman, in particular,

took the view that the reason for the minors’ reluctance to accept the measures was that the system

of providing shelter for them was unsuited to their situation and that the reluctance in question

could not in any case justify inaction on the part of the authorities, which, being responsible for

protecting the children, ought to have carefully considered the means of doing so, with due regard

to the specific nature of such cases.

The Court noted that the applicant, for his part, stated that he would have accepted official

protection. The Court repeated that he had been a 12-year-old child who, moreover, probably had

limited knowledge of the French language. It was therefore not convinced by the Government’s

argument that it had been incumbent on the applicant in person to take the requisite steps to secure

official protection. Nor did it consider that the NGOs, the lawyer who had represented the applicant

in the proceedings leading up to the order of 22 February 2016 or his statutory representative could

be blamed for not having taken him to the reception centre designated by the authorities, since that

task had manifestly been a matter for the authorities themselves.

The Court was aware of the complexity of the task facing the domestic authorities in view of the

difficulty of identifying minors among all the persons present on the site and of providing them with

appropriate care, given that they did not always want the latter. The Court also noted the ambiguity

of the applicant’s attitude, in that, although he had applied to the Children’s Judge for provisional

placement, he had not intended to remain in France but rather had been planning to reach the

United Kingdom. The Court further observed that the domestic authorities had not remained

completely inactive since they had taken steps to enforce the Children’s Judge’s order of 22 February

2016. Nevertheless, the Court was not convinced that the authorities had done all that could

reasonably be expected of them to fulfil the obligation of protection and care incumbent on the

respondent State vis-à-vis an unaccompanied foreign minor who was unlawfully present in French

territory, that is to say an individual belonging to the category of the most vulnerable persons in

society.

For several months the applicant had thus lived in the “lande de Calais” shanty town, in an

environment completely unsuited to his status as a child and in a situation of insecurity rendered

unacceptable by his young age.

The Court found that the particularly serious circumstances of the case and the failure to enforce the

Children’s Judge’s order geared to protecting the applicant, taken in conjunction, amounted to a

breach of the respondent State’s obligations. On account of the failure of the French authorities to

take the requisite action, the applicant had found himself in a situation which had amounted to

degrading treatment. There had therefore been a violation of Article 3 of the Convention.

Just satisfaction (Article 41)

The Court held that France was to pay the applicant 15,000 euros (EUR) in respect of non-pecuniary

damage.

The judgment is available only in French.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.