2022 Statelessness & Citizenship Review 4(2) Convention on the Rights of the Child (‘CRC’),3 which enshrined the principles of the best interests of the child and the child’s right to be heard, meaning that the return of the child and his mother to Bulgaria would constitute a violation of arts 6(2), 7, 16, 22, 27, 28, 37 and 39.4 This noteworthy decision asserts that states have a positive obligation to take proactive measures to respect, protect and fulfil children’s right to a nationality, including immigrant children who were not born in their current country of habitation. FACTS OF THE CASE The case was brought before UNCRC by AM, acting on behalf of her son, MKAH, who was 12 years old at the time. The child was stateless and was born in the Yarmouk refugee camp in the Syrian Arab Republic (‘Syria’). His mother was a Syrian national, and his father was a Palestinian from the Hashemite Kingdom of Jordan who went missing during the Syrian war. In 2017, AM and MKAH left Syria for Europe in search of safety. As submitted by AM to UNCRC, in Bulgaria they were detained on several occasions, at times without food or water, were subjected to verbal and physical abuse by the police, were mixed in accommodation with adult men, were made to sleep on the floor, and had limited access to sanitary facilities. Even after being granted subsidiary protection, they were taken by the Bulgarian authorities to an overcrowded camp that was unsafe and did not provide adequate food or education for the child, for a total of eight months. They ultimately made their way to Switzerland to join family and applied for asylum there. The author explicitly noted in their asylum application that her son was stateless.5 Under a return agreement signed by Bulgaria and Switzerland,6 the State Secretariat for Migration (‘SEM’) rejected the asylum claims and ordered MKAH and his mother to be returned to Bulgaria. As later established by UNCRC, Switzerland did not attempt to determine whether the child might have access to a nationality in Bulgaria before issuing the return decision.7 The SEM dismissed the allegations of ill-treatment in Bulgaria stating that, even if they were true, the family could assert their rights before the Bulgarian courts. The author appealed the decision to the Federal Administrative Court, which upheld the SEM’s decision to return the family and later dismissed a second appeal submitted by the applicant.8 3 4 5 6 7 8 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’). CRC art 6(2) protects the survival and development of the child; art 7 protects the right to a name and nationality; art 16 protects against interferences with privacy, family, home, correspondence and reputation; art 22 provides for the protection of children deprived of their family environment; art 27 protects the right to a standard of living; art 28 protects the right to education; art 37 provides for the prohibition of torture or other cruel, inhuman or degrading treatment or punishment, the prohibition of arbitrary or unlawful detention and protects the right to respect for dignity; and art 39 requires states to take appropriate measures for the recovery and social reintegration of child victims of neglect, exploitation or abuse, cruel, inhuman or degrading treatment or punishment or armed conflicts. MKAH v Switzerland (n 1) 14 [10.10]. Agreement on the Return of People in an Irregular Situation, Bulgaria–Switzerland, signed 21 November 2008 (entered into force 29 March 2009). MKAH v Switzerland (n 1) 14 [10.10]. ibid 3 [2.13]–[2.15]. 294