Dutch expulsion procedure for Venezuelan (child) migrants from Curaçao seems subpar
Massive numbers of Venezuelan (child) migrants are on the move, fleeing deplorable humanitarian conditions. In Curaçao, it seems that many are expelled without prior assessment of their cases.
The political, economic and social crisis in Venezuela is an ongoing problem. There is a lack of food and medicine, and in many areas it is unsafe due to gang violence. UNICEF estimates that this year 116,596 children will suffer from acute malnutrition (UNICEF 2022). This could damage the healthy development of these children and might be irreversible (Ke & Ford-Jones 2015). This situation is causing many Venezuelans to migrate and a small number of Venezuelan (child) migrants has arrived in Curaçao. Due to the non-applicability of the UN Refugee Convention in Curaçao, their overall legal position is marginal. The country has a policy for adjudicating claims on the basis of Article 3 of the European Convention on Human Rights (ECHR), yet until today no Venezuelan (child) migrant has received a decision on the basis of that policy. Over the years, more than a thousand Venezuelans have been expelled from the Kingdom of the Netherlands (Sandelowsky-Bosman 2022).
The treatment of Venezuelan migrants within the Kingdom of the Netherlands has been the object of various studies in recent years (see e.g. Sandelowsky-Bosman, Liefaard, Rap & Goudappel 2021, Amnesty International 2018 and 2021, the Ombudsman of Curaçao 2018). These studies focused primarily on the person of the migrant and his or her right not to be removed from Curaçao when there are substantial grounds for believing that he or she would be at risk of irreparable harm upon return (the principle of non-refoulement). This principle is implicitly enshrined in Article 3 ECHR (the prohibition of torture). Little attention was given to the question of whether that right is applicable to the deplorable humanitarian conditions in Venezuela. There was either attention for the child-sensitive version of this principle that is implicitly enshrined in Articles 6 and 37 of the UN Convention on the Rights of the Child (UNCRC). Both the ECHR and the UNCRC are applicable in Curaçao.
A recent study of jurisprudence of the European Court on Human Rights (ECtHR), however, shows that applicability of Article 3 ECHR to the deplorable humanitarian situation in Venezuela is not a priori excluded, particularly not in cases where people cannot cater for their most basic needs without any prospect of improvement of that situation (Sandelowsky-Bosman 2022). It is, moreover, likely that the expulsions of Venezuelan children infringe the UNCRC. The UNCRC also prohibits states from removing individuals when there is a risk of irreparable harm upon return (Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and CRC Committee 2017, par. 45), but the interpretation of this principle with regard to children is much more protective than the narrow interpretation of the ECtHR of Article 3 ECHR in that regard. A realistic risk of irreparable harm is not required, merely a reasonable doubt in that respect suffices. The CRC Committee ruled that the assessment of such doubts should be carried out following the principle of precaution (A.M. v. Switzerland, par. 10.4, see also Klaassen and Rodrigues 2021). The Committee did not define the principle of precaution, but in four recent views it argued that when there are ‘reasonable doubts about the ability of the receiving State to protect the child from such risks, States parties should refrain from deporting the child’ (Sandelowsky-Bosman 2022). The Committee also reiterated that the best interests of the child should be a primary consideration in decisions concerning the deportation of a child and that such decisions should ensure – within a procedure with proper safeguards – that the child will be safe and provided with proper care upon return. The assessment should consider the serious consequence for children of insufficient access to food and medical care (CRC Committee 2005, par. 27).
With all this in mind, the expulsion procedures in Curacao, within the Kingdom of the Netherlands, are a reason for concern. It seems that expulsions are conducted without a prior individual assessment of the situation of the expelled migrants. Expulsion orders barely refer to personal details, which seems to imply that the procedure leading up to the orders is also very summary. It seems that in every expulsion order, the migrant is referred to as ‘illegal migrant’ which suggests that the order is already predetermined. An eventual appeal to the principle of refoulement never seems to be mentioned in these orders. Such appeals are even discouraged by the threat that those who do invoke that principle may be placed in detention. These threats are not without effect: a Venezuelan migrant was detained for eleven months, of which nine months after invoking Article 3 ECHR. While in detention, he received no official response to his invocation of Article 3 ECHR. During a hearing in court a year after his imprisonment the Minister of Justice of Curacao could not explain when such a response was to be expected (Sandelowsky-Bosman 2022, footnote 87). The seeming lack of individual examinations makes the expulsion procedure a priori at variance with the prohibition of collective expulsion (Article 4 of Protocol No. 4 to the ECHR).
It is high time for a revision of the expulsion procedure in Curaçao in order to better protect the rights of Venezuelan (child) migrants. This message is not only directed at the government of Curaçao. It is also urgently directed at the Kingdom of the Netherlands. As a state party to the ECHR and UNCRC, the Kingdom bears responsibility for the implementation of international human rights and children’s rights within the Kingdom. This also implies a more active role of the government of the Netherlands, the largest and wealthiest country of the Kingdom.