Views of the Human Rights Committee of 28 July 2017 in the case of Hibak Saeed Hashi v. Denmark (communication No. 2470/2014).
In 2014, the author of the communication was assisted in the preparation of a complaint. Subsequently, the complaint was communicated to Denmark.
Subject of the message: deportation to Italy.
Substantive issue: inhuman and degrading treatment.
Legal positions of the Committee: The Committee refers to its general comment No. 31, in which it mentions the obligation of States parties not to extradite, deport, expel or otherwise expel a person from their territory when there are serious grounds to believe that there is a real risk of irreparable harm, such as the harm provided for in article 7 of the International Covenant on Civil and Political Rights, which prohibits cruel, inhuman or degrading treatment. The Committee...indicated that such a danger must be personal and sufficiently real to serve as a basis for establishing the existence of a risk of irreparable harm (See communications N 2007/2010, H. v. Denmark, Views adopted on March 26, 2014, paragraph 9.2; N 692/1996, A.R.J. v. Australia, Views adopted on March 28 July 1997, paragraph 6.6; and No. 1833/2008, H. v. Sweden, Views adopted on 1 November 2011, paragraph 5.18.). The Committee...Draws attention to its previous decisions, according to which it is necessary to attach significant importance to the assessment made by the State party, and that, as a rule, it is the authorities of the States parties to the Covenant that should consider and evaluate the facts and evidence in order to determine the existence of such a threat (See communication N 1957/2010, Lin v. Australia, Considerations adopted March 21, 2013, paragraph 9.3.), unless it is established that such an assessment was clearly arbitrary or amounted to a denial of justice (paragraph 9.3 of the Considerations) (See Communication No. 2681/2015, J.A.A. and F.H.M. v. Denmark, Views adopted on March 10, 2017, paragraph 7.3; and No. 2512/2014, Rezaifar v. Denmark, Views adopted on March 10, 2017, paragraph 8.3.).
The Committee recalls that States parties should, when considering objections to decisions to expel persons from their territory, pay sufficient attention to the real risk to which these persons may personally be exposed in the event of deportation (See communications No. 1763/2008, Pillai et al. v. Canada, Views adopted on 25 March 2011, paragraphs 11.2 and 11.4; and No. 2409/2014, Ali and Mohamad v. Denmark, Views adopted on 29 March 2016, paragraph 7.8.). In particular, an assessment of whether deportees may face conditions that constitute cruel, inhuman or degrading treatment, in violation of article 7 of the Covenant, should be based on an assessment not only of the general conditions in the host country, but also of the individual circumstances of the individuals concerned. These circumstances may include factors that increase the vulnerability of such persons and as a result of which a situation that is tolerable for the majority may turn out to be unacceptable for them. In cases dealt with under the Dublin Rules, States parties should also take into account the past experience of deportees in the first country of asylum, which may help to understand the specific risks they are likely to face and which may make their return to the first country of asylum particularly traumatic (para. 9.7 Considerations) (See J.A.A. and F.H.M. v. Denmark, paragraph 7.7.).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's claim that the deportation of her and her minor son to Italy, in accordance with the principle of the country of first asylum set out in the Dublin Rules, would expose them to a real risk of irreparable harm, in violation of article 7 of the Covenant. In support of her arguments, the author refers, in particular: to how she was actually treated in Italy; to her special vulnerability as a single mother with a child; to the general conditions in the asylum seeker accommodation centers in Italy; and the inability of the Italian integration system to meet the needs of the beneficiaries of international protection, as stated in various reports (paragraph 9.2 of the Considerations).
The Committee notes that the author does not dispute the information provided by the Italian authorities to the Danish Immigration Service, according to which she was granted additional protection and a residence permit in Italy, which expired on December 22, 2014. The Committee...Takes note of the author's claim that, although she was pregnant and had health problems while living in Italy, she was not provided with any specialized assistance and had difficulty obtaining food and access to minimal sanitary facilities (paragraph 9.4 of the Considerations).
The Committee notes the various reports submitted by the author, which indicate a shortage of places in Italian reception centers for asylum seekers and persons returned under the Dublin Rules. The Committee notes, in particular, the author's claim that returnees such as herself, who have already been provided with a form of protection and who have used the services of reception centers in Italy, no longer have the right to live in asylum-seeker centers. The Committee also notes the author's claim that returnees also face serious difficulties in Italy in finding access to sanitation and nutrition (paragraph 9.5 of the Views).
The Committee takes note of the conclusion of the [Refugee Appeals] Commission that Italy should be considered as a country of first asylum in this case, as well as the State party's position that such a country should guarantee asylum seekers basic rights, although it is not obliged to provide them with the same social standards as citizens of the country and living conditions. The Committee also notes that the State party has referred, in particular, to the ruling of the European Court of Human Rights, which states that, although the situation in Italy is marred by certain shortcomings, no evidence has been provided that asylum-seekers are systematically not provided with support and adequate conditions (paragraph 9.6 Considerations).
The Committee takes note of the information received by the State party from the Italian authorities, according to which an alien who has been granted a residence permit in Italy as a recognized refugee or a person who has received protection may apply for an extension of his expired residence permit after re-entering Italy (paragraph 9.8 of the Views).
At the same time, the Committee considers that the State party has not fully examined the information that the author provided, based on her personal circumstances, and according to which, despite the fact that she was granted a residence permit in Italy, she will face unbearable living conditions there (paragraph 9.9 of the Views).
The Committee recalls that States parties should attach sufficient importance to the real and personal threat to which a person may be exposed in the event of deportation (See Pillai et al. v. Canada, paragraphs 11.2 and 11.4; and Ali and Mohamad v. Denmark, paragraph 7.8.), and considers that the State party was obliged to carry out a more personalized assessment of the threat to which the author and her son may have been personally exposed in Italy, rather than relying on general reports and on the assumption that, since the author had already been additional protection has been provided, and in principle she will be entitled to the same level of additional protection now. The Committee notes that the author has in the past had the opportunity to stay at reception facilities. At the same time, according to the author's indisputable statements: she faced poor living conditions even during pregnancy, since she was forced to sleep in a barrack on a mattress without bed linen, eating once a day; she has no education; and, although, by her own admission, she received from the Italian authorities many However, she did not know that she had been issued a residence permit to live in Italy. In addition, the Committee takes note of the author's allegations that, due to difficulties in accessing adequate nutrition and medical care in Italy, she suffered from malnutrition, often lost consciousness and almost had a miscarriage. The information available to the Committee indicates that persons in a similar situation, especially young children, often find themselves on the street or in difficult and dangerous conditions. However, in making the decision, the Commission underestimated the author's personal experience in Italy and the predictable consequences of her forced return. Accordingly, the Committee considers that the State party has not adequately taken into account the special vulnerability of the author, a single mother with no education, with a five-year-old child in her arms, who had never lived in Italian society before. Despite her official right to additional protection in Italy, there is no evidence that in practice the author will be able to find housing and provide for herself and her child in the absence of assistance from the Italian authorities. In addition, the State did not ask the Italian authorities for real guarantees that the author and her son would be accepted in conditions compatible with their asylum-seeker status and would be entitled to temporary protection and guarantees provided for in article 7 of the Covenant. In particular, the State party has not asked Italy to commit itself: (a) To extend the author's residence permit and issue a similar permit to her child; and (b) to receive the author and her son in conditions adapted to the age of the child and the vulnerable situation of the family, which would allow them to remain in Italy (paragraph 9.10 of the Considerations) (See Yasin v. Denmark, paragraph 8.9; Ali and Mohamad v. Denmark, paragraph 7.8; Ahmed v. Denmark, paragraph 13.8.).
The Committee's conclusions The deportation of the author and her son to Italy without adequate guarantees would violate their rights under article 7 of the Covenant (paragraph 10 of the Views).