K.Y.M v. Denmark

Convention on the Rights of the Child: Articles 1, 2, 3 and 19

Optional Protocol to the Convention on the Rights of the Child on a communications procedure: Article 7 paragraph f

General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin; General Comment No. 13 (2011) - The right of the child to freedom from all forms of violence; Joint General Recommendation/General Comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices; and Joint General Comment No. 3 of the CMW and No. 22 of the CRC in the context of International Migration: General principles

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

The author of the communication is I. A. M., a Somali national originating from the Puntland State of Somalia and born in 1990. She is acting on behalf of her daughter, K. Y. M., born in Denmark on 5 January 2016. The author and her daughter were subject to a deportation order to the Puntland State of Somalia.

The author entered Denmark on 25 September 2014 without valid documentation and applied for asylum days after entry together with her husband. On 21 May 2015, her husband’s application was transferred to Sweden under applicable European Union regulations, as he had purportedly been residing there since 2007. On 5 October 2015, then 6 months pregnant, the Immigration Service of Denmark rejected the author’s asylum application. This decision was appealed to the Refugee Appeals Board on grounds that she was afraid of being killed by her family because of her secret marriage against the family’s will in 2007 and the risk that her daughter would be subjected to female genital mutilation if deported to Puntland. The Refugee Appeals Board, in a decision of 2 February 2016, also refused the claim, on the basis that the author’s statements were inconsistent and lacked credibility, in particular with regard to her father’s reaction when he learned about her secret marriage in 2007, and the fact that she had stayed in Puntland until 2014 with her family, without further retaliation, despite her husband’s departure from the country in 2007.

The Board relied on the Immigration Service report on female genital mutilation in Somalia, according to which, female genital mutilation was prohibited by law throughout Somalia and it was possible for mothers to avoid having their daughters subjected to female genital mutilation against the mother’s will, in particular in Puntland. The author added that, since her daughter had not yet been born when the Immigration Service handed down its decision, the issue of her being at risk of female genital mutilation was only assessed by one body, namely the Refugee Appeals Board.

The author claimed that her daughter’s rights under Article 1 (definition of a child), 2 (non-discrimination), 3 (the best interests of the child) and 19 (right to protection from all forms of violence) of the Convention, would be violated if she was deported to Somalia, as she could be subjected to female genital mutilation. She claimed that the principle of non-refoulement was applicable under the Convention and had extraterritorial effects in certain cases such as female genital mutilation. The author noted that the Human Rights Committee, the Committee against Torture and the Committee on the Elimination of Discrimination against Women had already determined that the respective treaties had extraterritorial effects with regard to deportation cases. She noted that the Refugee Appeals Board based its decision on the Immigration Service report on female genital mutilation in Somalia (2016), according to which it was possible for girls not to be circumcised if the mother opposed it. However, she also noted that the same report indicated that, if the mother was not strong enough to stand against the other women’s will, then she could succumb to pressure or family members could perform the practice when the mother was not at home.

The author added that, although female genital mutilation was prohibited by law in Somalia and in Puntland, the legislation was not enforced in practice. She added that she herself was subjected to female genital mutilation at age 6 and that she had suffered oppression in Somalia due to her secret marriage and that had not been able to seek protection from the authorities in the male-dominated society. Finally, she referred to the “Position on returns to southern and central Somalia” of the Office of the United Nations High Commissioner for Refugees (UNHCR) in which UNHCR urged States to refrain from forcibly returning any persons to southern and central Somalia. The author stated that, under Article 19 of the Convention, States parties were obliged to protect children against any harm or violence. In doing so, they had to always take into consideration the best interests of the child. The author claimed that her daughter was discriminated against, in violation of Article 2 of the Convention, because her case was only handled by the Refugee Appeals Board without any access to appeal. She claimed that it was because her daughter was born in Denmark to a Somali mother; no other child born in Denmark would be subjected to a similar lack of fair trial guarantees. The author noted that the Refugee Appeals Board did not make any reference to the Convention on the Rights of the Child in its decision.

In its observations dated 16 August 2016, the State party informed the Committee that the Refugee Appeals Board decision of 2 February 2016 was replaced by a new Board decision on 14 March 2016, in which the Board specified that the author and her daughter were to be deported to Puntland — from where the author originated — and no other part of Somalia. However, the time limit for their deportation was suspended in the light of the Committee’s request for interim measures. The State party informed the Committee that according to Danish law, decisions of the Immigration Service were automatically appealed before the Refugee Appeals Board. It added that the Refugee Appeals Board was an independent, quasi-judicial body. The State party claimed that the Convention would be deemed to be violated only if a child would be exposed to a real risk of irreparable harm if deported. The State party argued that the author had failed to establish a prima facie case as she had not sufficiently substantiated her claim that her daughter would be exposed to a real risk of irreparable harm if deported to Puntland, therefore, her claim should be declared inadmissible. That the author’s asylum application had been rejected by the Board on the basis that her account seemed to be fabricated on essential points and her statements were incoherent.

In its decision of 2 February 2016, the Board found that the author had not rendered it probable that her daughter would be subjected to female genital mutilation if she was deported to Puntland. The Board emphasized the background information available on the general situation of female genital mutilation in that region, in particular the possibility for mothers to prevent their daughters from being subjected to female genital mutilation. Therefore, the Board concluded that the author’s fear could not justify asylum under the Danish Aliens Act. Moreover, the author appeared to be an independent woman with considerable personal strength who, would be able to resist any social pressure and to protect her daughter from female genital mutilation.

According to the country information guidance published by the United Kingdom Home Office in February 2015, female genital mutilation was not as widely and consistently practiced in Puntland as in central and southern Somalia. Also, the practice was prohibited in Puntland. The State party noted that, because the Board did not expressly refer to the Convention, this did not mean that the Board failed to take the Convention into account. It stated that the Board took the Convention as well as other relevant international treaties into account as a crucial element in its examination of asylum applications involving children. The State party noted that the case of the European Court of Human Rights (ECtHR) R.H. v. Sweden was not applicable to the author since it concerned a woman from Mogadishu not Puntland. The State party submitted that the author’s daughter had not been subjected to discrimination of any kind owing to her or her parents’ race, colour, sex, religion or other status that would justify a violation of Article 2 of the Convention.

In her comments dated 14 December 2016, the author noted that she would be returned with her daughter to a country that had not ratified the Convention and where neither she nor her daughter would be afforded any protection, in violation of Article 1 of the Convention, given that the author’s daughter was a child. The author claimed that Article 3 of the Convention imposed an obligation on State parties to act only in accordance with the best interests of the child. The author alleged that, even though female genital mutilation was prohibited in Somaliland and Puntland, the practice was still deeply embedded in society.

The author insisted that the Refugee Appeals Board decision of February 2016 did not contain any reference to the Convention, which was in itself a violation. In her view, the State party was obliged to take the best interests of the child into account when adopting its decision. She claimed that the ECtHR considered that deporting single women to Somalia without a male network violated the European Convention on Human Rights because of the general security situation. The author stated that the Committee should not “allow” the State party to correct a decision of the Refugee Appeals Board, and that it should examine whether the February 2016 decision violated the Convention.

In its observations dated 2 March 2017, the State party noted that the author and her daughter failed to appear at the accommodation centre allocated to them, even though the Refugee Appeals Board had suspended the time limit for their departure until the Committee had reached a decision on the case. The Police later stated that they were deemed to have left Denmark. On 10 February 2017, the Board contacted the author’s counsel, who also stated that he did not know the author’s whereabouts. The State party argued that, since the Refugee Appeals Board considered that the author and her daughter had left Denmark, they were no longer under Danish jurisdiction and the daughter could not be considered a victim of any potential violation of the Convention. The State party considered the communication inadmissible under rule 13 (1) of the Committee’s Rules of procedure or, alternatively, the communication should be discontinued under rule 26 of the Rules in question.

On 10 April 2017, the author’s counsel noted that the State party was unable to establish that the author and her daughter were no longer in Denmark. The fact that they were no longer at the asylum centre was not a sufficient reason to automatically conclude that they had left Denmark. Furthermore, even if they were no longer in Denmark, this would not be sufficient to preclude jurisdiction.

On 18 May 2017, the State party insisted that the author and her daughter had a right to remain in Denmark for the duration of the proceedings before the Committee.

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On 16 February 2016, the Committee requested the State party to refrain from returning the author and her daughter to their country of origin while their case was under consideration by the Committee. On 18 February 2017, the State party suspended the execution of the deportation order against the author and her daughter. On 16 August 2017, the State party requested that interim measures be lifted. On 16 January 2017, Committee decided to deny the request to lift interim measures.

On 9 June 2017 Committee decided not to discontinue the consideration of the communication.

Consideration of admissibility

The Committee found that the communication was admissible in part. The Committee held that the claim under Article 2 was manifestly ill-founded and inadmissible. The Committee considered the rest of the claims were admissible and proceeded to the merits. The Committee took note of the State party’s argument that the author and her daughter were deemed to have left the territory of the State party and, consequently, that they were no longer under its jurisdiction. However, the Committee noted that the author and her daughter’s departure from Denmark was merely speculative as it had not been confirmed. Also, the deportation order issued against them remained in effect, which meant that the author and her daughter would still face deportation should they be located. The Committee therefore considered that it was not precluded from examining the communication.

Consideration of the merits

The Committee was of the view that the facts amounted to a violation of Articles 3 (best interests of the child) and 19 (right to protection from all forms of violence) of the Convention.

With regard to the claim of fear of female genital mutilation, the Committee recalled its General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, in which it stated that States shall not return a child to a country where there were substantial grounds for believing that there was a real risk of irreparable harm to the child. It added that non-refoulement obligations applied irrespective of whether serious violations of those rights guaranteed under the Convention originated from non-State actors or whether such violations were directly intended or were 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. In that sense, the Committee advised 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 the UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the Committee indicated that the refugee definition in that Convention should be interpreted in a 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 could 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.”

The Committee referred to the Joint General Recommendation/General Comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices, where the Committees noted that female genital mutilation could have various immediate and/or long-term health consequences. They recommended that the legislation and policies relating to immigration and asylum should 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 could be accompanying the girl or woman. The Committee noted that, although the prevalence of female genital mutilation appeared to have declined in Puntland, the practice was still deeply engrained in Somali society. The Committee recalled 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 would be safe and provided with proper care and enjoyment of rights. The Committee noted the arguments and information submitted to it, including the assessment of the mother’s assumed ability to resist social pressure based on her past experience in Puntland and on reports about the specific situation of female genital mutilation in Puntland. The Committee particularly observed that: (a) The Refugee Appeals Board’s assessment was limited to general references 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 the light of the persistently high prevalence of female genital mutilation in Puntland, and the fact that the author would be returning as a single mother without a male supporting network; (b) The State party had argued that the author appeared to be an independent woman with considerable personal strength who would be able to resist any social pressure and thus protect her daughter from being subjected to female genital mutilation. However, the Committee noted that the author’s departure could also be interpreted as an inability to resist pressure. In any event, the Committee considered that the rights of the child under Article 19 could not be made dependent on the mother’s ability to resist family and social pressures and that State parties should take measures to protect children from all forms of physical or mental violence, injury or abuse in all circumstances, even where the parent or guardian was unable to resist social pressure; (c) The evaluation of the risk that a child could be subjected to an irreversible harmful practice such as female genital mutilation in the country to which he or she was being deported should be carried out following the principle of precaution and, where reasonable doubts existed that the receiving State could not protect the child against such practices, State parties should refrain from deporting the child.

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

The State party was obligated to refrain from returning the author and her daughter to the Puntland State of Somalia. The State party was also obligated to prevent similar violations in the future.

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