Message: D.T. v. Canada. Message No. 2081/2011. The opinion was adopted by the Human Rights Committee (hereinafter referred to as the Committee) July 15, 2016
In 2011, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Canada.
Subject of the message: Expulsion of the applicant to Nigeria.
Substantive issue: the right to privacy; protection of the family; protection of children.
Legal positions of the Committee: The Committee also recalls its law enforcement practice, according to which there may be cases when the refusal of a State party to allow one of the family members to stay on its territory would be associated with interference in the family life of this person. However, the mere fact that certain family members have the right to remain in the territory of a State party does not at all mean that demands made to other family members to leave its territory constitute such interference (paragraph 7.4 of the Views) (See communications No. 1792/2008, Dafin v. Canada, Views adopted on July 28, 2009 8.1; Vinata v. Australia, paragraph 7.1; Madafferi v. Australia, paragraph 9.7; and communication No. 1222/2003, Byahuranga v. Denmark, Views adopted on November 1, 2004, paragraph 11.5.).
The Committee recalls that the concept of "arbitrariness" includes elements of impropriety, injustice, lack of predictability and due process (See communication No. 2009/2010, Ilyasov v. Kazakhstan, Views adopted on July 23, 2014, paragraph 7.4.) along with elements of expediency, necessity and proportionality. The Committee... Notes that in cases where one part of the family must leave the territory of a State party, while the other part will have the right to remain in that territory, the relevant criteria for assessing whether a specific intervention in family life can be objectively justified should be considered, on the one hand, in the light of the significance of the proposed The State party's reasons for the expulsion of the person concerned and, on the other hand, the seriousness of the situation in which the family and its members will find themselves as a result of this expulsion (paragraph 7.6 of the Opinion) (See Madafferi v. Australia, para. 9.8.).
The Committee recalls the principle that the best interests of the child are the most important consideration in all decisions affecting the child (para. 7.10 Considerations).
With regard to the claim under article 24 [of the Covenant], the Committee considers that the principle of taking into account, as the most important consideration, the best interests of the child forms an integral part of the right of every child to take such protective measures against him as are required by his position as a minor, by his family, society and States in accordance with the requirements of article 24, paragraph 1, of the Covenant (paragraph 7.10 of the Views) (See Bakhtiari v. Australia, paragraph 9.7.).
The Committee's assessment of the factual circumstances of the case: The Committee notes the author's claim that, given the state of the education and health system in Nigeria, her son's physical and mental health would be seriously compromised, in violation of his rights under article 24, paragraph 1, of the Covenant, if he went with her to Nigeria. The author claimed that if her son, a Canadian citizen, had had to stay in Canada, he would have been separated from his mother, the sole guardian, and his rights under articles 17, 23, paragraph 1, and 24, paragraph 1, of the Covenant would thus have been violated (paragraph 7.2 of the Considerations).
With regard to the alleged violation of articles 17 and 23, paragraph 1, of the Covenant, the Committee notes the State party's argument that the decision on whether the author's son will leave with her to Nigeria or remain in Canada, in which case this will lead to the separation of the child and the mother, will be made only by the family, and not as a result of the actions of the State (paragraph 7.4 of the Opinion).
In the present case, the Committee considers that the issue of deportation in respect of a single mother of a seven-year-old child who is a national of the State party (See Madafferi v. Australia, paragraph 9.8.) constitutes interference with family life within the meaning of article 17 of the Covenant. The Committee must determine whether such interference with the author's family life is arbitrary or unlawful in accordance with article 17, paragraph 1, of the Covenant and, consequently, whether the State has provided insufficient protection for her family in accordance with article 23, paragraph 1, of the Covenant (paragraph 7.5 of the Views).
In the present case, the Committee notes that the author's expulsion had a legitimate purpose - to comply with immigration laws. In addition, the State party explained that the author's expulsion was based on the rejection of her application for refugee protection and that this application does not have such a legal status that could give her hope of being able to stay in Canada, and that therefore she is obliged to apply for a permanent residence permit from-outside the country (paragraph 7.7 of the Considerations).
The Committee notes that the author's son A.A. [D.T.'s son] was born in Canada in 2004 and left Nigeria with his mother at the age of seven. A.A. suffers from a number of diseases, including a heart murmur and a congenital malformation of the meniscus, for which he underwent surgery in Canada. The medical reports of his pediatric surgeon indicate that this problem may also affect his left knee, since the disease is often bilateral in nature and may lead to the need for one or more arthroscopic surgical operations in the future. The Committee notes that the author's son suffers from attention deficit hyperactivity disorder (hereinafter referred to as ADHD), in connection with which he was prescribed daily medication and an interdisciplinary action plan was developed at his school in Canada with the participation of specialists in the field of special education (paragraph 7.8 of the Views).
The Committee takes note of the State party's argument that the child's heart disease is benign and that the need for future surgery on his left knee is hypothetical. In addition, the State party considers that the author has not made specific efforts to find the necessary medical and educational services that could be provided for her child in Nigeria (paragraph 7.9 of the Opinion).
The Committee considers that, in the present case, the State party failed to take into account the best interests of the author's child as the most important consideration and that, as a result, his interference in the author's family life and the subsequent insufficient protection provided to her family caused excessive difficulties for the author and her son. The decision to expel the author left the author with a choice: to leave his seven-year-old child in Canada or put him at risk of the lack of medical and educational support on which he depends. No information was provided to the Committee indicating that the child could benefit from any alternative adult support network in Canada. In this regard, it was quite reasonable to assume that the author would take his son back to Nigeria with him, as a result of which he would be deprived of the required social and educational support. Given the age and special needs of the author's son, both options faced by the family - the son who remains alone in Canada, or the author's return to Nigeria - cannot be considered in his best interests. However, the State party has not adequately explained why its legitimate aim of enforcing its immigration policy, including requiring the author to apply for permanent residence outside Canada, should be more important than the best interests of the author's child, nor how such an aim could justify those difficulties which the family faced as a result of the decision to expel the author. In the light of all the circumstances of the present case, the Committee considers that the decision to expel the author constitutes disproportionate interference in the family life of the author and her son, which cannot be justified in the light of the reasons given by the State party for the author's expulsion to Nigeria (paragraph 7.10 of the Views).
With regard to the claim under article 24 [of the Covenant], the Committee considers that the principle of taking into account, as the most important consideration, the best interests of the child forms an integral part of the right of every child to take such protective measures against him as are required by his position as a minor, by his family, society and States in accordance with the requirements of article 24, paragraph 1, of the Covenant (See Bakhtiari v. Australia, paragraph 9.7.). In the light of its findings under articles 17 and 23, paragraph 1, the Committee considers that the decision to expel the author violated article 24 [of the Covenant], since in doing so, A.A. was not provided with the necessary measures to which he is entitled as a child by the State party (paragraph 7.12 of the Views).
The Committee's conclusions: The author's deportation to Nigeria constituted a violation of her rights under article 17, considered separately and in conjunction with article 23, paragraph 1, of the Covenant, in respect of the author and her son, and, in addition, article 24, paragraph 1, of the Covenant in respect of A.A. (paragraph 8 of the Opinion).