2022 Statelessness & Citizenship Review 4(2) European Convention on Nationality (‘ECN’)16 that have a direct impact on the ability of stateless persons to effectively access their rights. The intervention argued that states must implement children’s rights to a nationality in a way that respects the principle of the best interests of the child, which entails taking proactive measures to protect the rights of stateless children. Return decisions must include a rigorous assessment of all the facts and circumstances related to the child, to ensure that the child is not rendered stateless and that the other fundamental rights under the CRC are not consequently impaired.17 UNCRC found that the claims under arts 3(1), 6(2), 7, 12, 16, 22, 27, 28, 37 and 39 were admissible, including those relating to Switzerland’s failure to adequately take into account the best interests of the child and the child’s views, as well as the risk of inhuman and degrading treatment in Bulgaria. B Best Interests of the Child in Asylum and Return Proceedings UNCRC reiterated that the best interests of the child should be a primary consideration in return decisions, which must include procedural safeguards to ensure that the child will be safe and enjoy their fundamental rights upon return,18 and a shared burden of proof.19 According to the principle of non-refoulement, states must not return a child to a country where there are substantial grounds for believing that they may be at real risk of irreparable harm,20 including when there are ‘reasonable doubts’ about the ability of the receiving state to protect the child from such risks.21 Even though Bulgaria is a party to key human rights instruments, UNCRC noted that Switzerland had not taken into account the numerous civil society reports evidencing that children in similar situations in Bulgaria faced a real risk of inhuman or degrading treatment. The authorities failed to conduct an individualised assessment of the risk that MKAH could face, including those relating to access to education, employment, housing, medical care and other services that are essential for the child’s physical and psychological recovery.22 UNCRC concluded that Switzerland failed to make the best interests of the child a primary consideration when assessing whether MKAH should be returned to Bulgaria, which resulted in a violation of art 3(1) of the CRC and potential 16 17 18 19 20 21 22 European Convention on Nationality, opened for signature 6 June 1997, ETS No.166 (entered into force 1 March 2000) (‘ECN’). See also, ‘Reservations and Declarations for Treaty No 166 – European Convention on Nationality (ETS No 166)’, Council of Europe Treaty Office (Web Page) <https://www.coe.int/en/web/conventions/full-list?module=declarations-bytreaty&numSte=166&codeNature=0>, archived at <https://perma.cc/2VCA-A6G3>. Third Party Intervention (n 14) 10 [41]; MKAH v Switzerland (n 1) 6 [4.8]. UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (‘CMW’) and UNCRC, Joint General Comment No 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No 22 (2017) of the Committee on the Rights of the Child on the General Principles regarding the Human Rights of Children in the Context of International Migration, UN Doc CMW/C/GC/3-CRC/C/GC/22 (16 November 2017) 6–7 [29]–[30]. MKAH v Switzerland (n 1) 13 [10.5]. UNCRC, General Comment No 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, UN Doc CRC/GC/2005/6 (1 September 2005) 9 [26]–[27]; UN Committee on the Elimination of Discrimination Against Women, General Recommendation No 32 on the Gender-Related Dimensions of Refugee Status, Asylum, Nationality and Statelessness of Women, UN Doc CEDAW/C/GC/32 (5 November 2014) 7– 8 [21], 9 [26]. MKAH v Switzerland (n 1) 12 [10.4]. ibid 13 [10.7]. 296