Message: Abdilafir Abubakar Ali and Mayul Ali Mohamad v. Denmark. Message No. 2409/2014. The Views were adopted by the Human Rights Committee (hereinafter referred to as the Committee) March 29, 2016
In 2014, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Denmark.
Subject of the message: deportation to Italy.
Substantive issue: torture, cruel, inhuman or degrading treatment or punishment.
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the authors' claim that the deportation of themselves and their two minor children to Italy, in accordance with the principle of "first country of asylum" contained in the Dublin Regulations, would expose them to a real risk of irreparable harm, in violation of article 7 of the Covenant. The authors base their arguments, in particular, on how they were treated in practice after receiving their residence permit in Italy, as well as on the general conditions of reception of asylum seekers and refugees arriving in Italy noted in various reports (paragraph 7.2 of the Considerations).
The Committee notes that, according to their own unverified allegations, the authors lived in a reception centre between June 2011 and January 2012, when they were asked to leave without alternative accommodation, at the same time as the birth of their son on 21 December 2011. Subsequently, they lived on the streets and at train stations and ate what they provided to the church. Thus, they were left without a roof over their heads and without means of livelihood. The Committee...Notes the authors' claims that their newborn son did not receive the medical care he needed at birth, despite requests sent to the competent authorities. Fearing that they would not be able to provide for their child and find a humanitarian solution to their situation, the authors left Italy and went to Denmark, where they applied for asylum in June 2012. The authors, asylum seekers with two minor children, are currently in an extremely vulnerable position (paragraph 7.4 of the Considerations).
The Committee takes note of the reports submitted by the authors, which show a shortage of places in Italian reception centers for asylum seekers and persons returned under the Dublin Regulation. The Committee notes, in particular, the authors' claim that returnees who have already been provided with a form of protection and who have used the services of reception centers in Italy, like themselves, in practice do not have the right to live in asylum-seeker centers (paragraph 7.5 of the Views).
The Committee takes note of the conclusion of the Refugee Appeals Commission that Italy should be considered as the first country to grant asylum in this case, as well as the State party's position that the first country to grant asylum is obliged to ensure the enjoyment of basic human rights by asylum seekers, although it is not obliged to ensure for such individuals have the same social standards and living conditions as for the citizens of the country. He...Notes that the State party referred to the decision of the European Court of Human Rights, which stated that, although the situation in Italy is characterized by certain shortcomings, there was no evidence that "asylum seekers are systematically not provided with support and appropriate conditions" (paragraph 7.6 of the Views) (See Samsam Mohammed Hussein et al. v. the Netherlands and Italy, paragraph 78.).
The Committee considers that the State party's conclusion does not adequately take into account the information provided by the authors, based on their own experience, according to which, despite having been granted a residence permit in Italy, they faced unbearable living conditions there...The Committee notes that the State party does not explain how, if returned to Italy, the residence permits obtained will be able to effectively protect themselves and their two minor children, one of whom needs follow-up medical supervision, from exceptional difficulties and hardships, which they have already encountered in Italy (paragraph 7.7 of the Views) (See communication No. 2360/2014, Varda Osman Yasin v. Denmark, Views adopted on July 22, 2015, paragraph 8.8.).
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 para. Communication No. 1763/2008, Pillai v. Canada, Views adopted on March 25, 2011, paragraphs 11.2 and 11.4.), and considers that the State party was obliged to conduct a more thorough assessment of the threat to which the authors personally might have been exposed in Italy, rather than relying on general reports and on the assumption that that since they have already been granted additional protection in the past, it means, in principle, they will be entitled to additional protection now. The Committee considers that the State party has not taken due account of the particular vulnerability of the authors, who, despite their right to additional protection, remain homeless and unable to provide for themselves in the absence of any assistance from the Italian authorities, including medical care necessary for their newborn son. It also did not seek adequate guarantees from the Italian authorities that the authors and their two minor children would be received in conditions compatible with their status as asylum seekers, who are entitled to temporary protection, and guarantees under article 7 of the Covenant; it did not ask Italy to guarantee: a) re-issuing or extending their residence permits (taking into account the authors' claim that they lost their residence permits.) and issuing residence permits to their children, as well as not deporting them from Italy; and b) to receive the authors and their children in conditions adapted to the age of the children and the vulnerable situation of the family, which would allow them to remain in Italy (paragraph 7.8 of the Views) (See communication No. 2360/2014, Varda Osman Yasin v. Denmark, Views adopted on July 22, 2015, paragraph 8.9.).
Conclusions of the Committee: The deportation of the authors and their two children to Italy would constitute a violation of their rights under article 7 of the Covenant (paragraph 8 of the Views).