Annex to Chapter 6

• Author: Guio, A-C.; Marlier, E.; Frazer, H.
• Pages: 211-215

Feasibility Study for a Child Guarantee (FSCG) Final Report

211

Annex to Chapter 6

Annex 6.1: Case law cited in the main text

1. Right to free healthcare

The decision of the European Committee of Social Rights (ECSR) in International Federation

of Human Rights Leagues (FIDH) v. France,362 affirms that limiting the right of migrant

children to medical assistance in France to situations that involve an immediate threat to

life is in breach of Article 17 of the revised European Social Charter (ESC). The restriction

in this instance adversely affects chi ldren who are exposed to the risk of no medical

treatment. Article 17 is directly inspired by the United Nations Convention on the Rights of

the Child (UNCRC). It protects the ri ght of children and young persons, in cluding

unaccompanied minors, to care and assistance. The ECSR observed that the charter must

be interpreted so as to give life and meani ng to fundamental social rights. It follows inter

alia that restrictions on rights are to be r ead restricti vely; that is, understood in such a

manner as to preserve intact the essence of the right and to achi eve the overall purpose

of the charter. The ECSR holds that legislation or practice which denies entitlement to

medical assistance to foreign nationals, wi thin the territory of a stat e party, even if they

are there illegally, is contrary to the charter. T he ECSR stated that such treatment treads

on a right of fundamental importance to the in dividual since it is connected to the right to

life itself and goes to the very dignity of the human being.

2. Right to education

In the case of Ponomaryovi v. Bulgaria,363 the ECtHR links the right of access to education

– free of charge – to the in creased importance of secondary education in modern society.

The court states: ‘the Court is mindful of the fa ct that with more and more countries now

moving towards what has been described as a “kn owledge-based” society, secondary

education plays an ever-increasing role in successful personal development and in the

social and professional integration of the individuals concerned. Indeed, in a modern

society, having no more than basic knowledge and skills constitutes a barrier to successful

personal and professional development. It prevents the persons concerned from adjusting

to their environment and entails far-reaching consequences for their social and economic

well-being’. Although the obligation to make secondary education free of charge is a

progressive one, it is restricted by the limitations caused by the prohibition to take

deliberate retrogressive measures. Thus once secondary education has been made free o f

charge, it can only be reversed in very dire (economic or other) situations.

Indeed the ECtHR has affirmed i n the case of Timishev v. Russia364 th at exclusion of

children from education due to lack of registration of the parents as regular migrants

violates the right to education. In this case, the applicant's children were refused admission

to the school which they had attended for the previous two years. The government did not

contest the applicant's submission that the actual reason for the refusal had been that the

applicant had surrendered his mig rant's card and had thereby forfeit ed his registration as

a resident in the town of Nalchik. The court affirmed that the convention and its protocol s

do not tolerate a denial of the right to educati on. The government confirmed that Russian

law did not allow the exercise of that righ t by children to be made conditional on the

registration of their parents' residence. It follows that the applicant's children were denied

the right to education provided for by domest ic law. Their exclusion from school was

therefore held to be incompatible with the requirements of Arti cle 2 of Protocol No 1.

362 Complaint No 14/2003, Decision of 8 September 2004 at paras 29-36.

363 ECtHR, Application No 5335/05, Judgment of 21 June 2011 para. 57.

364 Applications No 55762/00 and 55974/00, Judgment of 13 December 2005) at paras 64-65.