IAM (on behalf of KYM) v. Denmark

Title:
IAM (on behalf of KYM) v. Denmark

Court:
UN Committee on the Rights of the Child

Date:
25 January 2018

CRC provisions
Article 1: Definition of a child
Article 2: Non-discrimination
Article 3: Best interests of the child
Article 19: Protection from abuse and neglect

Other international provisions:
Refugee Convention 1951

Domestic provisions:
Aliens Act

Case summary:

Background:
A Somali woman and her husband entered Denmark in September 2014, without valid travel documents, and applied for asylum. The Danish Immigration Service rejected the woman’s application the following year, at which point she was six months pregnant, and ordered that she be deported to Somalia. The mother appealed the decision to the Refugee Appeal Board (RAB). By the time of the appeal, the mother had given birth and argued that if deported, she risked being killed for marrying her husband without her family’s consent and that her daughter would be at risk of female genital mutilation (FGM). The RAB rejected the appeal and ordered the mother and daughter be deported to the Puntland state of Somalia. The mother filed a complaint with the UN Committee on the Rights of the Child on behalf of her daughter.

Issue and resolution:
Non-refoulement. The State has an obligation to refrain from returning the mother and her daughter to Somalia and to prevent similar violations of children’s rights in the future.

Court reasoning:
The Committee found that the complaint that the girl had been subject to discrimination was inadmissible as it had not been sufficiently demonstrated. The Committee then assessed the claim that the State had violated the girl’s rights to protection from all forms of violence and to have her best interests be a primary consideration in all actions concerning her.

The Committee set out the principle established under its General Comment No. 6 that States shall not return a child to a country where there are “substantial grounds for believing that there is a real risk of irreparable harm” to the child. The Committee held that this requirement must be assessed in an age and gender-sensitive manner and that “irreparable harm” includes FGM.

In assessing the risk that a child would undergo an irreversible harmful practice such as FGM after being deported, the Committee adopted a “principle of precaution”. The Committee set out this principle as requiring that where reasonable doubts exist as to whether the receiving State could protect the child against the practice, the State should not return the child.

The Committee rejected the State’s argument that the mother had demonstrated herself to be an “independent woman with considerable personal strength” who would be able to resist social pressure for her daughter to be subject to FGM on the basis that the child’s right to protection from all forms of violence under the Convention could not be made dependent on the mother’s ability to resist family and social pressure.

The Committee also found that the State had violated the principle that a child’s best interests must be a primary consideration in all actions concerning children, as the specific and personal situation of the mother and her daughter had not been considered and there had been no assessment of the best interests of the child before the national decision makers.

Excerpts citing CRC and other relevant human rights instruments

Consideration of admissibility

10.2 The Committee notes the author’s statement that decisions by the Danish Refugee Appeals Board are not subject to appeal and that therefore domestic remedies have been exhausted. This has not been challenged by the State party. Therefore, the Committee considers that there is no obstacle to the admissibility of the communication under article 7 (e) of the Optional Protocol.

10.3 The Committee takes note of the author’s claim based on article 2 of the Convention that her daughter was discriminated against because, as a result of having been born in Denmark to a Somali mother, her claim was only assessed by the RAB without any possibility to appeal. The Committee observes, however, that the author makes this claim in a very general manner, without showing the existence of a link between her daughter’s or her own origin and the alleged absence of appeal proceedings against the decisions of the Danish Refugee Appeals Board. Therefore, the Committee declares this claim manifestly ill-founded and inadmissible according to article 7 (f) of the Optional Protocol.

10.4 The Committee takes note of the State party’s argument that the author has not sufficiently substantiated her claim that her daughter would be at risk of being subjected to female genital mutilation if returned to the Puntland State of Somalia. However, the Committee considers that, in light of the author’s allegations regarding the circumstances under which she would be returned, the author’s claims based on articles 3 and 19 of the Convention have been sufficiently substantiated for purposes of admissibility.

10.5 The Committee takes note of the State party’s argument that the author and her daughter are deemed to have left the territory of the State party and, consequently, they are no longer under its jurisdiction. The Committee notes, however, that the author and her daughter’s departure from Denmark is merely speculative as it has not been confirmed. Also, the deportation order issued against them remains in effect, which means that the author and her daughter would still face deportation should they be located. The Committee therefore considers that it is not precluded from examining the present communication on the basis of Rule 13(1) of its Rules of Procedure.

10.6 The Committee therefore declares admissible the author's claims concerning the obligation of the State party to: (a) act in the best interests of the child (article 3); and (b) take measures to protect the child from all forms of physical or mental violence, injury or abuse.

Consideration of the merits

11.2 The Committee takes note of the author’s allegations that her daughter’s return to the Puntland State of Somalia would expose her to a risk of being subjected to female genital mutilation, and that the State party failed to take the best interests of the child into account when deciding on the author’s asylum request, in violation of articles 3 and 19 of the Convention.

11.3 The Committee recalls in that respect its General Comment No. 6 that States shall not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child, such as, but by no means limited to, those contemplated under articles 6 and 37 of the Convention; and that such non-refoulement obligations apply irrespective of whether serious violations of those rights guaranteed under the Convention originate from non-state actors or whether such violations are directly intended or are the indirect consequence of action or inaction. The assessment of the risk of such serious violations should be conducted in an age and gender-sensitive manner.14 In this sense, the Committee recalls that “when assessing refugee claims (…), States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children (…). Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures”. 15

11.4 The Committee also recalls its General Comment No. 18 that female genital mutilation may have various immediate and/or long-term health consequences; 16 and that the legislation and policies relating to immigration and asylum should, in particular, recognize the risk of being subjected to harmful practices or being persecuted as a result of such practices as a ground for granting asylum; and that consideration should also be given to providing protection to a relative who may be accompanying the girl or woman.17

11.5 The Committee takes note of the author’s allegations that she would be unable to protect her daughter against female genital mutilation in a country where 98 percent of women have been subjected to this practice and where she would be afforded no protection by national/local authorities. Although prohibited by law throughout Somalia, the practice of female genital mutilation is still prevalent as the legislation is not enforced. Also, the author herself was subjected to female genital mutilation at age 6, suffered oppression as a result of her secret marriage and was unable to seek protection from national authorities in a male dominated society. The State party notes that, according to several reports, a mother can protect her daughter against female genital mutilation in the Puntland State of Somalia if she resists family or community pressure. It further notes that the author has failed to explain the specific risk that her daughter would run; that the author, by leaving Somalia and travelling to Europe, has shown to be an independent woman with considerable personal strength who must be assumed to be able to resist any social pressure and protect her daughter from female genital mutilation; and that the author’s general credibility was undermined by the fact that she was not deemed credible regarding her own grounds for asylum. Finally, the State party notes that incidents of female genital mutilation have declined in the Somaliland and Puntland, 18 and that 75 percent of girls aged between 10 and 14 have not been subjected to this practice according to 2013 data.19

11.6 The Committee notes that, although the prevalence of female genital mutilation appears to have declined in the Puntland State of Somalia according to reports submitted by the parties, 20 as a result inter alia of the 2014 law banning female genital mutilation in the region, the 2013 fatwa against all forms of female genital mutilation, and 2014 Policy against female genital mutilation, 21 its practice is still deeply ingrained in its society.

11.7 The Committee also notes that, in its decision dated 2 February 2017, the RAB examined the author’s allegations concerning her own grounds for asylum and found them non-credible. In that same decision, the RAB dedicated one paragraph to addressing the author’s allegations regarding the alleged risk that her daughter would be subjected to female genital mutilation if returned to the Puntland State of Somalia and dismissed those allegations stating that the Board “attache[d] decisive importance to the background information available, including in particular the information that, in Puntland, Somalia, it is possible for mothers to prevent their daughters from being subjected to female genital mutilation against the will of the mothers.” The background information relied upon was the DIS Report on female genital mutilation in Central and Southern Somalia (2015), and not the Puntland region. The RAB also ordered the author and her daughter’s return to Somalia, and it was only in its later decision of 14 March 2017 that the RAB corrected that they should be returned to the Puntland region, without any further reasoning.

11.8 The Committee recalls that the best interests of the child should be a primary consideration in decisions concerning the return of a child, and that such decisions should ensure–within a procedure with proper safeguards- that the child, upon return, will be safe and provided with proper care and enjoyment of rights. 22 In the present case, the Committee notes the arguments and information submitted to the Committee, including the assessment of the mother’s ability to resist social pressure based on her past experience in the Puntland region, and on reports on the specific situation of female genital mutilation in Puntland. However, the Committee observes that:

a) The RAB limited its assessment to a general reference to a report on central and southern Somalia, without assessing the specific and personal context in which the author and her daughter would be deported and without taking the best interests of the child into account, in particular in light of the persistently high prevalence of female genital mutilation in the Puntland State of Somalia and the fact that the author would be returned as a single mother, without a male supporting network;

b) The State party has argued that the author, by having left Somalia, appears to be an independent woman with considerable personal strength who must be able to resist any social pressure and thus be able to protect her daughter from female genital mutilation. However, the Committee notes that the author’s departure could similarly be understood as an inability to resist pressure. In any event, the Committee considers that the rights of the child under article 19 of the Convention cannot be made dependent on the mother’s ability to resist family and social pressure, and that State parties should take measures to protect the child from all forms of physical or mental violence, injury or abuse in all circumstances, even where the parent or guardian is unable to resist social pressure;

c) The evaluation of a risk for a child to be submitted to an irreversible harmful practice such as female genital mutilation in the country to which he or she is being returned should be adopted following the principle of precaution, and where reasonable doubts exist that the receiving State cannot protect the child against such practices, State parties should refrain from returning the child.

11.9 The Committee therefore concludes that the State party failed to consider the best interests of the child when assessing the alleged risk of the author’s daughter to be subjected to female genital mutilation if returned to the Puntland State of Somalia, and to take proper safeguards to ensure the child’s well being upon return, in violation of articles 3 and 19 of the Convention.

11.10 The Committee on the Rights of the Child, acting under article 10, paragraph 5, of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, is of the view that the facts before it amount to a violation of articles 3 and 19 of the Convention.

12 The State party is under an obligation to refrain from returning the author and her daughter to the Puntland State of Somalia. The State party is also under an obligation to prevent similar violations in the future, in accordance with the present Views.

13 The Committee recalls that, becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether or not there has been a violation of the Convention or its two substantive Optional Protocols.

14 Pursuant to article 11 of the Optional Protocol, the Committee wishes to receive from the State party, as soon as possible and within 180 days, information about the measures undertaken to give effect to the Committee’s Views. The State party is also requested to include information about any such measures in its reports under article 44 of the Convention. Finally, the State party is requested to publish the Committee’s Views, to have them translated into the official language of the State party and widely distributed.

CRIN comments:
CRIN believes that this decision is compatible with the Convention on the Rights of the Child. The Committee has clearly stated in its General Comment No. 6, that States must not return a child to a country where there is substantial grounds for believing that there is a real risk of irreparable harm to the child and that female genital mutilation is a gender and child-specific form of of persecution that may justify granting refugee status.

Citation:
Communication No. 3/2016 (CRC/C/77/D/3/2016)

Link to full judgment:
http://www.ohchr.org/Documents/HRBodies/CRC/CRC-C-77-DR-3-2016.pdf

This summary is provided by the Child Rights Internaitonal Network for educational and informational purposes only and should not be construed as legal advice.