Denmark violates the right to the protection of family life

28.04.2015

Husseini v. Denmark (2243/2013)

Summary

In October 2014, 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 expel an individual permanently.

Husseini v. Denmark (2243/2013)

Summary

In October 2014, 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 expel an individual permanently.

The communication was submitted by an Afghan national under the Optional Protocol to the Covenant, both on his own behalf and on behalf of his son and daughter.

Background

The author, Mr Husseini, was born in Afghanistan on 7 March 1986. The author left Afghanistan with his father and four siblings and fled to a refugee camp in Pakistan after his mother and two sisters were killed in a rocket attack.

On 31 July 1999, the author entered Denmark where his father was living at that time. On 5 October 1999, the author was given a residence permit. The author’s father, stepmother and five brothers and sisters live in Denmark.

In 2006, the author married Ms. A, a Danish national. The couple have a son and a daughter, born in 2008 and 2010 respectively, who live with their mother. At the time of submission of the communication, the author and Ms. A were divorced.

On 2 September 2002, the author was sentenced by the Copenhagen City Court to imprisonment for one year and six months, for robbery, theft, attempted fraud, criminal damage, unlawful possession of firearms and driving without a licence.

In view of the author’s age, one year of the sentence was suspended subject to a probation period of two years. The Court did not order the author’s expulsion having regard to article 8 of the European Convention on Human Rights.

On 1 March 2005, the author was found guilty by the Eastern High Court of several robberies. He received a sentence of imprisonment for five years and six months. The author was also expelled from Denmark and served with a permanent re-entry ban.

On 19 August 2005, the Supreme Court unanimously upheld the judgment of the Eastern High Court. As a consequence, the author’s residence permit lapsed.

By letter of 23 January 2006, the author submitted an application for asylum, which was refused on 27 July 2006. On 27 October 2006, the Refugee Appeals Board upheld the decision and decided that the author could be forcibly returned to Afghanistan if he did not leave voluntarily.

By letter of 30 June 2006, the Commissioner of the Copenhagen Police submitted a request from the author for the revocation of the expulsion decision to the Copenhagen City Court. On 11 September 2007, the Copenhagen City Court ordered that the expulsion order was not to be revoked. By order of 22 January 2008, the Eastern High Court upheld the order of the Copenhagen City Court. The author appealed the decision to the Appeals Board of the Supreme Court which rejected the appeal on 11 June 2008.

On 24 July 2007, the author was released on parole but was subsequently remanded in custody to ensure his presence until the expulsion order could be enforced. On 6 February 2008, the author was released and accommodated at a departure centre for refused asylum seekers and expelled persons.

On 26 February 2008, the author stated that he did not want to cooperate in a voluntary departure from Denmark.

On 14 April 2010, the District Court of Glostrup convicted the author of a criminal offence on the grounds that he and his two brothers had seriously assaulted a man. The author was sentenced to imprisonment for four years and nine months. On 26 August 2010, the Eastern High Court upheld the judgment delivered by the District Court of Glostrup.

On 28 October 2011, the Danish National Police sent a request to the Afghan authorities for permission for the author to enter Afghanistan. On 14 January 2013, the National Police received acceptance from the Afghan authorities, confirming that the author could be present at the Afghan border control for the purpose of identification.

On 8 April 2013, the author was interviewed by the National Police on the matter of his return to Afghanistan, where he stated that he did not want to cooperate in a voluntary return to Afghanistan as he had a wife and children in Denmark. The author was subsequently informed that he would be presented to the border control authorities in Afghanistan as soon as possible. On the same day, the author was brought before the District Court of Hillerød and remanded in custody to ensure his presence until the expulsion order could be enforced.

On 17 April 2013, the author’s counsel was informed by telephone that the Afghan authorities had accepted that the author be presented to the Afghan border control authorities at Kabul International Airport for the purpose of identification. The author’s counsel was also informed that the author’s return to Afghanistan was scheduled for 13 May 2013.

On 7 May 2013, the author filed this communication with the Committee under the Optional Protocol to the Covenant. The author claimed that Denmark had violated his and his children’s rights to: (i) freedom from discrimination, (ii) due process in expulsion proceedings, (iii) protection of the family, and (iv) special protection of children (under articles 2, 13, 23 and 24 of the Covenant respectively).

The Committee’s decision

Regarding the admissibility of the author’s claims, the Committee noted the author’s claim under article 2(1) of the Covenant and recalled its jurisprudence that the provisions of article 2 lay down only general obligations for State parties. Accordingly, article 2(1) did not afford a separate individual right that could be invoked in a communication under the Optional Protocol. The Committee therefore considered that the author’s claims under article 2(1) were inadmissible under article 3 of the Optional Protocol for incompatibility with the provisions of the Covenant. The Committee found the author’s claims under articles 13, 23 and 24 of the Covenant to be admissible.

On the merits, the Committee recalled its jurisprudence that a State party’s refusal to allow one member of the family to remain in its territory may constitute interference in that person’s family life in breach of article 23(1) of the Covenant. However, the mere fact that one member of the family is entitled to remain in the territory of a State party does not necessarily mean that a State party has breached article 23(1). In the present case, the Committee considered that Denmark’s decision to deport the father of two small children from a divorced family, coupled with a permanent re‑entry ban, constituted “interference” with the family, at least in circumstances where substantial changes in family life would follow. The Committee observed that although the author’s family life had been subject to significant restrictions during his incarceration, he had been able to maintain a close relationship with his family through regular visits to and from his children and ex-wife.

The Committee then considered whether such interference had been arbitrary and therefore contrary to article 23(1) of the Covenant. The Committee observed that the decision to expel the author was upheld by the Eastern High Court on 22 January 2008, but could not be implemented until 13 May 2013, during which time the author’s children were born. The Committee recalled that even interference by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be reasonable in the particular circumstances. The Committee reiterated that in assessing whether the specific interference with family life can be objectively justified the Committee must consider, on the one hand, the significance of the State party’s reasons for the removal of the person concerned and, on the other hand, the degree of hardship that the family and its members would suffer as a consequence of such removal.

The Committee noted that Denmark had justified the author’s removal from the country on the basis of his previous convictions for several serious offences which can lead to expulsion in the case of aliens who have been lawfully residing in Denmark. Denmark was furthermore of the view that “the expulsion decision is necessary in the public interest and to protect [public] safety from further criminal activity by the author and [is] thus in furtherance of a legitimate State interest”. The Committee took note of the author’s argument, on the other hand, that his children could not be expected to follow him to Afghanistan, as they were Danish nationals who did not speak Pashto, had no ties with the country and had been living with their mother since the divorce. The Committee also noted that, if the author were to be deported to Afghanistan, the nature and quality of his family relationships could not be adequately maintained through regular visits, due to the permanent re-entry ban that had been imposed on him.

The Committee noted that the communication was submitted on behalf of the author as well as his children, who were born after the decision to expel the author had become final. It also noted that Denmark had not reviewed those new circumstances and, in particular, had never examined the extent to which the author’s deportation was compatible with the right of his children to such measures of special protection (in accordance with article 24 of the Covenant). The Committee found that the material before it did not allow it to conclude that due consideration had been given by Denmark to the right of the family to protection by society and the State or to the right of children to special protection.

In the light of the above, the Committee considered that the author’s removal to Afghanistan, without reviewing his new personal circumstances, would violate his and his children’s rights under article 23(1), read in conjunction with article 24 of the Covenant. Having found a violation of article 23 read in conjunction with article 24, the Committee did not find it necessary to consider the author’s claims under article 13 relating to the same facts.

In accordance with article 2(3)(a) of the Covenant, the Committee observed that Denmark was under an obligation to provide the author with an effective remedy by reviewing its decision to expel the author with a permanent re‑entry ban, taking into account Denmark’s obligations under the Covenant. The Committee found that Denmark was also under an obligation to prevent similar violations in the future.

Denmark must now submit its written response within six months of the Committee’s decision, including information on the action taken in the light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

Sam Hunter Jones is an international lawyer, based in London.

Photo: "Dannebrog 3" by Jacob Bøtter

Category:

Region
  • Europe
Topic
  • Treaty body strengthening process
Mechanism
  • Human Rights Committee (CCPR)
Country
  • Denmark