GENEVA (4 October 2019) – The UN Committee on the Rights of the Child has welcomed Belgium's implementation of changes to proceedings for visa applications for children taken in under kafalah, or guardianship under Islamic law.
The changes, which follow recommendations by the child rights Committee, place the best interests of the child as the primary consideration, taking into account family ties and the child's right to be heard.
On 27 September 2018, the Committee released its decision on a case concerning the denial, by Belgian authorities, of a humanitarian visa for a child taken in by a Belgian-Moroccan couple under a
kafalah arrangement. The child, of Moroccan nationality, was born to an unknown father and abandoned by her mother at birth, and was taken in by the couple in 2011 at six months old. That same year, the couple applied for a long-stay Belgian visa for the child on humanitarian grounds, but were rejected by the Belgian Immigration Office multiple times between 2012 and 2017 on the basis that
kafalah did not confer a right of residence.
In March 2017, the couple brought the case to the UN Committee on the Rights of the Child, on the grounds that the Belgian authorities had violated the child's rights under the Convention. The Committee determined that the Belgian authorities had failed to take the best interests of the child into account, particularly failing to consider the child's specific situation as well as de facto family ties forged by their life together, and had also failed to take into account the child's views, violating the child's right to be heard. The Committee requested that Belgium "urgently reconsider the application for a visa, […] ensuring that the best interests of the child are a primary consideration." It also noted Belgium was "under an obligation to do everything necessary to prevent similar violations from occurring in the future."
In its follow-up submission in April 2019, Belgium noted that the child's visa application had been re-examined, the child had appeared before an oral hearing, and on 28 February 2019, the child was granted a 6-month humanitarian visa to enter Belgium. To prevent similar violations, Belgium noted that future visa requests for children taken in under
kafalah would be examined expeditiously; that the child would be heard taking into account his or her discernment capacity; and that due weight will be given to the family life that has developed between the child and his or her guardians.
"Belgium has set an excellent example for other countries," stated Ann Skelton, Special Rapporteur on Follow-up to Individual Communications. "By swiftly implementing the Committee's recommendations, Belgium has not only provided reparation for one child. It has acted to prevent violations of the rights of many children by ensuring that their best interests are at the heart of any visa proceedings. We congratulate Belgium on their timely action."
"This is a very good example of a country that has implemented every single measure of reparation requested by the Committee in the context of the individual communications procedure," Skelton added. "It is an enormous step forward in achieving compliance with Committee decisions and the Convention, and ensuring children's best interests are placed at the heart of any decisions that may affect them."
The full text of the Committee's 2018 'Views' can be read
here and the Report on follow-up
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The Committee on the Rights of the Child monitors States parties' adherence to the Convention on the Rights of the Child, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.
The Committee is made up of 18 members who are independent human rights experts from around the world, who serve in their personal capacity and not as representatives of States parties. The Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OPIC-CRC) allows the Committee to receive and examine complaints by individuals or groups of individuals claiming to be victims of a violation of the rights of the child by States that have ratified the Optional Protocol. To date, 46 States have ratified or acceded to the OPIC-CRC.
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