Concluding observations of the UN Human Rights Committee of January 25, 2018 on appeal No. 3/2016 in the case of I.A.M. (I.A.M.) v. Denmark.
In 2016, the author of the appeal was assisted in preparing the appeal.
In the case, the author’s appeal on the issue of the deportation from the country in relation to a child who faces forced female circumcision was successfully considered.
Circumstances of the case
Communication was served by a Somali citizen acting on behalf of her daughter. She entered Denmark without a valid travel document and filed an asylum application, which the Danish Migration Service rejected. After the birth of her daughter, the applicant appealed against the refusal to the Refugee Appeals Board, claiming that she was afraid that members of her own family would kill her, because the applicant had secretly married the wishes of the family members and that her daughter would be subjected to forced female circumcision (hereinafter - FGM) if returned to the Somali State of Puntland.
Puntland State of Somalia (English) is an autonomous region in eastern Somalia, uniting the nine northeastern provinces of Somalia. In 2003-2004, it was officially recognized as an autonomous region within the federal state of Somalia (editor's note).
The Refugee Appeals Board rejected the complaint and decided to deport the applicant to Somalia. Regarding the risk that the applicant’s daughter could be subjected to forced female circumcision, the Refugee Appeals Board referred to the report of the Migration Service, according to which the procedure was prohibited by law in Somalia and that mothers could prevent their daughters from having this procedure, especially in the Somali State Puntland.
Turning to the United Nations Committee on the Rights of the Child, the complainant argued, inter alia, that her daughter's rights guaranteed by articles 3 and 19 of the United Nations Convention on the Rights of the Child would be violated if she was returned to Somalia because of the risk that the child would be subjected to forced female circumcision procedure.
QUESTIONS OF LAW
The United Nations Committee on the Rights of the Child recalled that in relation to the General Comment of the United Nations Committee on the Rights of the Child No. 6 (United Nations Committee on the Rights of the Child (CRC), General Comment No. 6 (2005): Unaccompanied children or separated from the family outside their country of origin, September 1, 2005, CRC / GC / 2005/6) states could not return the child to the country if there were substantial grounds for assuming that there was a real risk of irreparable harm to the child, and that such obligations applied whether or not the source of the violation of such rights guaranteed by the Convention was private individuals or whether such violations were deliberate or unintended consequences of actions or omissions. A risk assessment of such serious violations should be carried out taking into account the age and gender of the affected persons. Reference was also made to the General Comment of the United Nations Committee on the Rights of the Child No. 18 (Joint General Recommendation of the United Nations Committee on the Elimination of Discrimination against Women No. 31 / Comment of the United Nations Committee on the Rights of the Child No. 18 on harmful practices of November 14 2014, CEDAW / C / GC / 31-CRC / C / GC / 18) and emphasized that forced female circumcision could have various immediate and long-term effects on child health and that migration and asylum laws and policies should recognize the risk of being subjected to harmful acts of health or harassment as a result of these actions as a basis for asylum, and that consideration should be given to providing protection to the relative accompanying the girl or woman.
The United Nations Committee on the Rights of the Child noted that although, according to reports submitted by the parties, the forced female circumcision procedure was denied in the Somali State of Puntland, this practice has a long history in Somali society. It was emphasized that when deciding on the return of the child, the best interests of the child should be taken into account in the first place and that such decisions should provide, within the framework of the procedure, with appropriate guarantees that the child will be safe upon return, that he will be provided with proper care and his or her rights will be respected.
Turning to the circumstances of the present case, the United Nations Committee on the Rights of the Child firstly noted that the Refugee Appeals Board based its assessment on reports on Central and Southern Somalia, without assessing the special and personal circumstances in which the applicant and her daughter would be deported without taking into account the best interests of the child, in particular in light of the widespread use of forced female circumcision in the Somali State of Puntland and the fact that the applicant would return to the country as a single mother, without the support of a male relative.
Secondly, the rights of the child guaranteed by article 19 of the United Nations Convention on the Rights of the Child cannot depend on his or her mother’s ability to resist the pressure of the family or society, and states must take measures to protect the child from all types of physical and psychological violence, injuries or abuse under any circumstances, even if the parent or guardian cannot resist public pressure.
In conclusion, an assessment of a child’s risk of being subjected to irreversible harmful practices, such as forced female circumcision, in the country to which he or she is sent should be based on the principle of caution and if there are reasonable doubts that the receiving state will be able to protect the child from these practices, the state should refrain from returning the child.
The United Nations Committee on the Rights of the Child concluded that the respondent Government did not take into account the best interests of the child in assessing the risk that the applicant’s daughter could be subjected to forced female circumcision if returned to the Somali State of Puntland and did not provide adequate guarantees of well-being child in case of return to the country of origin.
CONCLUSION
The case found a violation of Articles 3 and 19 of the United Nations Convention on the Rights of the Child.
Individual recommendations
The Danish authorities should refrain from returning the applicant and her daughter to the Somali State of Puntland.
General recommendations
The Danish authorities should prevent similar violations in the future according to the stated opinion.