CASE NOTE
MKAH V SWITZERLAND — THE RIGHT TO A
NATIONALITY IN THE CONVENTION ON THE RIGHTS OF
THE CHILD
PATRÍCIA CABRAL*
TABLE OF CONTENTS
Introduction........................................................................................................... 293
Facts of the Case ................................................................................................... 294
Summary of the Judgment .................................................................................... 295
A Main Arguments by the Parties ................................................................ 295
B Best Interests of the Child in Asylum and Return Proceedings ................ 296
C The Right to a Nationality ........................................................................ 297
D Outcome ................................................................................................... 297
Analysis ................................................................................................................ 297
Conclusion ............................................................................................................ 300
INTRODUCTION
On 22 September 2021, the United Nations Committee on the Rights of the Child
(‘UNCRC’) issued a new decision in the case of MKAH v Switzerland,1 brought
to it through the individual communications procedure.2 The case concerned the
return of a Syrian mother and her stateless child from the Swiss Confederation
(‘Switzerland’) to the Republic of Bulgaria (‘Bulgaria’), where they had initially
sought protection but were detained under inhuman and degrading conditions.
UNCRC found failures in the Swiss authorities’ asylum and return proceedings,
including that the best interests of the child were not taken into consideration, the
child’s views were not heard and the authorities did not conduct an individualised
assessment to establish the risk of inhuman and degrading treatment that the child
would face nor whether he would have access to a nationality, if returned to
Bulgaria. UNCRC found that Switzerland violated arts 3(1) and 12 of the
*
1
2
Patrícia Cabral is the Legal Policy Coordinator at the European Network on Statelessness.
She has an LLB in Law from the University of Lisbon and an LLM in International and
European Law from NOVA University of Lisbon.
Views adopted by the Committee under the Optional Protocol to the Convention on the Rights
of the Child on a Communications Procedure, concerning Communication No. 95/2019, UN
Doc CRC/C/88/D/95/2019 (3 November 2021) (‘MKAH v Switzerland’).
Since 2014, the United Nations Committee on the Rights of the Child (‘UNCRC’) has been
able to receive and consider individual communications, also known as complaints, alleging
violations of the Convention on the Rights of the Child. Communications may be submitted
from, or on behalf of, an individual or group of individuals claiming to be victims of a
violation by a state, provided that that state is a party to the Optional Protocol to the
Convention on the Rights of the Child on a Communications Procedure. After examining a
communication, the UNCRC transmits its views to the parties concerned, along with
recommendations to the state party (if any) to provide redress and prevent further human
rights violations: Optional Protocol to the Convention on the Rights of the Child on a
Communications Procedure, opened for signature 19 December 2011, 2983 UNTS 131
(entered into force 14 April 2014).