Denmark: Refusal of asylum claim violates rights to life and freedom from cruel and inhuman treatment

30.03.2016

In July 2015, the Human Rights Committee found that Denmark had violated its obligations under the International Covenant on Civil and Political Rights in connection with its decision to deport an individual.

 

Omo-Amenaghawon v. Denmark (2288/2013)
Summary

In July 2015, the Human Rights Committee was asked to consider whether Denmark had violated its obligations under the International Covenant on Civil and Political Rights in connection with its decision to deport an individual.

The communication was submitted by a Nigerian national on behalf of herself and her minor child under the Optional Protocol to the Covenant.

Background

In 2010, the author, Osayi Omo-Amenaghawon, was trafficked to Denmark and arrived with a residence permit.

On 17 August 2010, the author reported the traffickers to the police. The traffickers were subsequently prosecuted and detained following a trial in which the author appeared as a witness against them.

In November 2010, the author applied for asylum.

On 4 August 2011, the Danish Immigration Service rejected the author’s application for asylum on the basis that she did not face a real risk of persecution if she returned to Nigeria. The author appealed the decision before the Refugee Appeals Board.

On 29 December 2011, the author gave birth. The child’s father was also an asylum seeker in Denmark.

On 15 March 2012, the decision to refuse the author asylum was upheld by the Refugee Appeals Board.

On 13 December 2012, the author requested the Appeals Board to re-open her asylum proceedings. The author claimed that her case had received a high profile since a Danish television channel had discussed her asylum proceedings in a televised broadcast on 12 December 2012 and that this increased the risk of her being persecuted by the human trafficking network in Nigeria.

On 3 April 2013, the author’s request was refused, and she was ordered to leave the country voluntarily within the deadline set by the Appeals Board on 15 March 2012.

On 3 June 2013, the author filed a new application for reconsideration of her asylum request before the Appeals Board. On 1 July 2013, the Appeals Board decided not to consider the author’s application, as her place of residence was unknown.

On 25 September 2013, the author filed this communication with the Committee under the Optional Protocol to the Covenant. The author claimed that her deportation to Nigeria would constitute a violation of her and her child’s rights to: (i) life, (ii) freedom from torture and cruel, inhuman or degrading treatment or punishment (iii) freedom from discrimination, (iv) freedom of thought, conscience and religion, (v) equality before the law, and (vi) freedom of minorities to practise their own culture (under articles 2, 6, 7, 18, 17 and 26, read in conjunction with articles 3, 6, 7, 13 and 14 of the Covenant).

On 19 December 2013, the author filed a new application for reconsideration of her asylum request to the Danish Refugee Appeals Board. On 24 February 2014, the Appeals Board refused to re-open asylum proceedings for the author as there were no substantial grounds for believing that she was in danger of being deprived of her life or being subjected to torture or other cruel, inhuman or degrading treatment if she returned to Nigeria.

The Committee’s decision

The Committee first considered Denmark’s objection to the admissibility of the author’s complaint concerning articles 6 and 7 of the Covenant, on the ground that it was unsubstantiated. The Committee concluded that, for the purposes of admissibility, the author had provided sufficient substantiation regarding those claims. However, the Committee declared the communication inadmissible to the extent that it raised issues under articles 2, 18, 26, 27, 3 and 13 of the Covenant pursuant to article 2 of the Optional Protocol, as these claims were insufficiently substantiated.

The Committee additionally considered the admissibility of the author’s claim that the inability to appeal decisions of the Refugee Appeals Board violated article 14 of the Covenant. The Committee concluded that proceedings relating to the expulsion of aliens do not fall within the ambit of article 14 of the Covenant, and that this claim was therefore inadmissible pursuant to article 3 of the Optional Protocol.

On the merits, the Committee noted the author’s claims under articles 6 and 7 of the Covenant that, if returned to Nigeria, she would be at risk of being killed or tortured by her traffickers or their relatives. To substantiate her allegations, the author referred to the fact that: (i) she had been a victim of human trafficking and had been forced to work as a prostitute in Denmark; (ii) she had testified against her traffickers in criminal proceedings; and (iii) she had been threatened by her traffickers and their relatives  living in Nigeria. With respect to whether article 6 or 7 had been breached, the Committee recalled the obligation of States not to deport a person when there are substantial grounds for believing that there is a real personal risk of irreparable harm to that person, and that all relevant facts and circumstances must be considered.

The Committee noted that Denmark had failed to take into due consideration the special vulnerability of the author, having been subject to human trafficking, and the author’s particular status as a witness in the criminal proceedings against her aggressors. The Committee observed that Denmark had also not taken into due consideration the specific capacity of the Nigerian authorities to provide the author with protection.

In view of the above, the committee concluded that Denmark had violated the author’s rights under articles 6 and 7 of the Covenant.

In accordance with article 2(3) of the Covenant, the Committee observed that Denmark was under an obligation to provide the author with an effective remedy, including full reconsideration of her claim. Denmark was also requested to refrain from expelling the author and her minor child to Nigeria while her request for asylum was being reconsidered. The Committee also held that Denmark should review its policy of not granting special consideration to requests for asylum from victims of human trafficking who cooperate with its law enforcement authorities.

Denmark must now provide the Committee with information about the action that it has taken in the light of the Committee’s recommendations within six months of the Committee’s decision, and ensure that the Committee’s decision is published widely.

Sam Hunter Jones is an international lawyer, based in London