The applicant was an unaccompanied minor from Cote D’Ivoire, applied on 17 September 2021 for international protection in Luxembourg, through his ad hoc legal guardian. In support of his application, the applicant claimed that he was beaten and humiliated by his father and his father’s first wife since birth and forced to work at the market until the age of 10. He alleged that he moved to his grandparents where his mother and sister lived, but the grandfather had refused to take him in and that he was entrusted to a friend of his mother’s, with whom he lived with for two years before his father tried to kidnap him. He managed to avoid the abduction and flee to Luxembourg, where he requested international protection. He alleged that he was rejected by all family members or relative who could have known about protection measure for children, as put in place by national authorities.

On 14 November 2023, the Ministry of Immigration and Asylum rejected his application for international protection. The Ministry argued that the applicant’s story referred to a purely familial conflict which did not fall within the scope of the Refugee Convention. It also held that, according to Ivorian law, crimes and offences against children are prohibited and hence the applicant could have sought protection from the authorities. Finally, it also considered that the applicant did not meet the conditions for subsidiary protection because there was no evidence of a real risk of serious harm within the meaning of Article 39 of the Law of 18 December.

On 15 December 2023, the applicant appealed the negative decision before the Administrative Tribunal . In the appeal, he argued that he could not have benefited from protection by the Ivorian authorities because, considering his young age and his vulnerability, it was impossible for him to have knowledge of, or access to, the measures put in place by those authorities. Moreover, he argued that he was submitted to “confiage”, that is, the practice of entrusting a child to a relative for his upbringing. He argued that  this situation put him at risk of abuse and had resulted in an impossibility of applying for help. Finally, regarding the refusal of subsidiary protection, the applicant considered that his claims amounted to serious harm since he was a young child who was subjected to beating and humiliation, had been forced to work and whose father had attempted to kidnap him.

The Ministry contended that the action should be dismissed as unfounded. Apart from the arguments already mentioned in the contested decision, the Ministry maintained that it was not possible for his mother to be unaware of the possibility of requesting assistance from the national authorities. It also claimed that the applicant was authorised to remain in Luxembourg until he turned 18, so that he would be of age if returned to his country of origin. The Ministry argued that as such, the applicant  could  live away from his father and bring the matter himself before the Ivorian authorities if necessary.

The Administrative Tribunal found the harm suffered by the applicant from his father, including beatings and working at the market under threats, amounted to torture/degrading treatment and forced labour under international law. It also emphasised that, as a minor, the applicant could not have accessed protection in Côte d'Ivoire due to his vulnerability, the lack of parental or guardian support, and the risks of reprisals. Consequently, the applicant was granted subsidiary protection.

First, the Administrative Tribunal considered the applicant's request for refugee status and held that the acts related to a private family conflict and hence were not motivated by one of the substantive criteria defined in Article 2(f) of the Law of 18 December, namely race, religion, nationality, political opinions or membership of a certain social group. Consequently, the applicant was denied refugee status.

Then, the Administrative Tribunal considered the request for subsidiary protection. The tribunal found that the ill-treatment and humiliation which the applicant had suffered, consisting particularly in beatings, belt beatings, the obligation to perform daily household chores against his will and to work at the market under threat of further beatings, and the deprivation of food, must be regarded as torture or inhuman or degrading treatment or punishment within the meaning of Article 48(b) of the Law of 18 December 2015 and Article 3 of the ECHR. In addition, the fact that the applicant was not in school but was forced on a daily basis to carry out housework against his will and to work at the market under threat of beatings, together with the deprivation of food, was found comparable to forced or compulsory labour within the meaning of Article 4(2) of the ECHR. The tribunal found  that there was no doubt that the condition of seriousness was satisfied in the case. Finally, the tribunal pointed out that Article 37(4) of the Law of 18 December 2015 established a simple presumption that, where an applicant has already suffered serious harm, as was the case here, such serious harm may reoccur upon return to the country of origin, and that the Minister had failed to prove that these events would not reoccur upon return. 

The tribunal also observed that, according to Articles 39 and 40 of the Law of 18 December 2015, when the harm is inflicted by non-State actors, namely the father of the applicant and his first wife, the applicant must provide evidence that the authorities of his country of origin were unable or unwilling to provide him with sufficient protection. In this sense, the tribunal considered it important to stress that that due to their young age, children may not be able to approach police officers or express their fears or complaints in the same way as adults, or they may not be taken seriously. In the applicant’s case, considering the constant threats that he received from his father, it was reasonable to conclude that there was a legitimate fear of reprisal if he contacted the police or sought help. Moreover, considering that he was forced to work at the market and could not attend school, he did not actually have a possibility of bringing the matter himself before Ivorian authorities. 

As for the ability and willingness of the applicant's parents and other representatives to exercise his rights and obtain protection on behalf of him, the tribunal noted that his father and his first wife were at the origin of the serious harm suffered by the applicant, and that his mother, a victim of violence on the part of her husband, had to leave the family home and had expressed fears of reprisals from her husband even after leaving the home. According to the interview report, this fear was also present, in the applicant’s older half siblings, with the result that it could be held that he did not have the possibility of referring the matter to the Ivorian authorities through a parent or other representative or of seeking and obtaining assistance from them.

The Ministry could not contest the above findings with the fact that violence against minor children is criminalised in the Ivorian Criminal Code, or by the assertion that the Ivorian authorities have set up a telephone line to combat violence against children. The tribunal believed that even if those arrangements were generally effective, it was not evident how the applicant, who was only 10 years old, could have specifically, either alone or through a parent or other representative, brought the matter before the Ivorian authorities and sought and obtained assistance from them.

Finally, the Ministry’s argument that the applicant would be of age in the event of his return to his country of origin and could thus live independently and away from his father and bring the matter himself before the Ivorian authorities was considered irrelevant to the question whether he fulfilled the conditions for being eligible for international protection status. It also found that the mere fact that the applicant reached the age of majority could not in itself suffice to rebut the presumption that serious harm would recur in the event of his return to his country of origin, since the applicant had already suffered serious harm and had already been the subject of direct threats of serious harm.

In the light of the foregoing considerations, the tribunal concluded that the Ministry was wrong to refuse to grant the applicant subsidiary protection status, with the result that the contested decision must be amended accordingly.