Concluding observations of the UN Human Rights Committee dated March 10, 2017 on appeal N 2512/2014 in the case of Rezaifar v. Denmark.
In 2014, the author of the appeal was assisted in preparing the appeal.
The proposed transfer, in accordance with the Dublin Rules, of a vulnerable asylum seeker and two children to Italy in the absence of appropriate guarantees regarding the conditions in which they will be accepted.
The case has successfully considered an appeal for a proposed transfer in accordance with the Dublin Rules of a vulnerable asylum seeker and two children to Italy in the absence of appropriate guarantees regarding the conditions in which they will be accepted.
Circumstances of the case
The author of the appeal is a citizen of Iran and two of her three children (a son at the age of three years and a daughter at the age of 18 at the time of filing the appeal). Her eldest son lives in Italy. The author fled Iran through Greece with her ex-husband and her two older children in connection with the political activities of her husband. The family was granted international protection in Italy in 2008. For the first three months, they were in a center for asylum seekers, and then they were provided with housing. The author’s ex-husband was addicted and she and her children were subjected to domestic violence. They had no money, and her ex-husband persuaded her to engage in prostitution. After the birth of the youngest son, the author left her husband. She suffered from bipolar affective disorder and depression, and in 2009 she was diagnosed with cervical cancer. The operation was ultimately paid for by some of her friends, but she could not afford post-surgical treatment. The author’s youngest son suffered from a heart disease that required regular examination and monitoring.
The author arrived in Denmark in July 2012 and applied for asylum. In October 2012, the Italian authorities granted the Danish authorities' request for the family to be returned to Italy in accordance with the Dublin Rules. However, in connection with the living conditions of asylum seekers in Italy, the Danish Ministry of Justice reviewed the decision and determined that the application should be examined in Denmark for humanitarian reasons, in particular because of the age of the author’s youngest child. In March 2014, the author's asylum application was rejected. The immigration service acknowledged that the author should be considered as a person in need of protection, but decided that Italy should act as the first country of her asylum. Her complaint was dismissed. In the Human Rights Committee, the author complained that if she was forcibly returned with two children to Italy, the State party would violate their rights in accordance with article 7 of the International Covenant on Civil and Political Rights (hereinafter - ICCPR) (prohibition of torture or cruel, inhuman or degrading treatment or punishment). She claimed that her family was particularly vulnerable, and based on her previous experience in Italy and available general information, believed that she and her children were in real danger of being deprived of their homes and living in poverty with limited access to necessary medical care.
In support of her arguments, she relied on the Court's rulings in cases examined by the European Court of Human Rights: “MSS v. Belgium and Greece” (MSS v. Belgium in the case of the Grand Chamber of the European Court of Human Rights (MSS v. Belgium and Greece) v. Belgium and Greece) of 21 January 2011, complaint No. 30696/09) and “Mohammad Hussein and Others v. Netherlands and Italy) European Court judgment in the case of“ Mohammed Hussein and Others v. The Netherlands and Italy "(Mohammad Hussein and Others v. Netherlands and Italy) of 2 April 2013, complaint No. 27725/10).
QUESTIONS OF LAW
Article 7 of the ICCPR. The Human Rights Committee took into account the various reports submitted by the author, which highlighted the lack of space at reception facilities in Italy for asylum seekers and returnees in accordance with the Dublin Rules, and, in particular, the author’s indication that returnees such as her, who have already received the form of protection and used the reception facilities during their stay in Italy, are no longer entitled to reside in reception centers for asylum seekers.
The Human Rights Committee noted that the Danish authorities’ reference to the decision of the European Court of Human Rights in the case of Mohammed Hussein and Others v. The Netherlands and Italy, according to which, although the situation in Italy has flaws, it does not indicate a systemic refusal to provide support or infrastructure for asylum seekers. However, the Human Rights Committee decided that the State party had not duly taken into account the information provided by the author, based on her personal circumstances and past experience.
States Parties should give sufficient importance to the real and personal risk that a person may be exposed to in the event of expulsion and should undertake an individualized assessment. The State party has not duly taken into account the particular vulnerability of the author and her children. Despite the formal right to additional protection in Italy, the author, who was abused by her husband, faced great difficulties and could not provide for herself and her children, including their medical needs, in the absence of any assistance from the Italian authorities.
Denmark was also unable to obtain effective assurances from the Italian authorities that the author and her two children would be accepted under conditions corresponding to their status of asylum seekers entitled to temporary protection and guarantees in accordance with article 7 of the ICCPR. In particular, Denmark did not demand that the Italian authorities undertake (a) the renewal of the author's residence permit and the issuance of permits to her children, and (b) the reception of the author and her children in conditions adapted to the age of the children and the vulnerable status of the family, which would allow them to stay in Italy.
The transfer of the author and her two children to Italy in the absence of appropriate safeguards constitutes a violation.
Article 2 (1) of the ICCPR. Denmark should begin to consider the requirements of the communicant, taking into account its obligations under the ICCPR, the Committee’s position and the need to obtain appropriate guarantees from Italy.