Human Rights Committee

Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2291/2013 * , **

Communication s ubmitted by:	A and B (represented by counsel, Niels Erik-Hansen)
Alleged victim s :	A and B
State party:	Denmark
Date of communication:	1 October 2013 (initial submission)
Document references:	Decision taken pursuant to rules 92 and 97 of the Committee’s rules of procedure, transmitted to the State party on 23 October 2013 (not issued in document form)
Date of adoption of V iews :	13 July 2016
Subject matter:	Removal of the authors to Pakistan
Procedural issues :	Admissibility – manifestly ill-founded; admissibility – ratione materiae
Substantive issues:	Risk of torture and violation of freedom of religion in case of return to country of origin; fair trial
Articles of the Covenant :	6, 7, 13, 14 and 18
Article s of the Optional Protocol:	2 and 3

1.1The authors of the communication are A and B, born in 1935 and 1945, respectively. They are nationals of Pakistan and currently reside in Denmark. Following the rejection of their application for refugee status in Denmark, they are subject to removal. They assert that, by removing them to Pakistan, the State party would violate their rights under articles 7, 14 and 18 of the Covenant. The Optional Protocol entered into force for Denmark on 23 March 1976.

1.2On 23 October 2013, pursuant to rules 92 and 97 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested that the State party not remove the authors to Pakistan while the communication was under consideration by the Committee. On 24 September 2014 and 18 September 2015, the Committee denied the State party’s requests to lift interim measures. The authors remained in Denmark.

Facts as presented by the authors

2.1The authors, who are married to each other, assert that they fled Pakistan on account of their faith as Ahmadi (Ahmadiyya) Muslims. Certain individuals threatened to kill them if they did not leave their country or abandon their faith. A mark was put on their front door and they received oral threats. They feared the Muslim fundamentalist groups Ahle Suntal and Ahle Hadees, which conduct “targeted killings”.

2.2Ahmadis in Pakistan face various forms of discrimination. For example, they are not permitted to work with other Ahmadis or be buried after death. Ahmadis also risk being subjected to violence. Imams vandalized an Ahmadi graveyard in Lahore and “target killings” of Ahmadis by fundamentalist Muslim groups are known to occur in Pakistan. In separate incidents, a young Ahmadi man and his brother were both killed while on their way to the mosque. In addition, three days after an Ahmadi couple married, the bride’s husband, father and father-in-law were all killed due to their faith. Because “the situation was getting worse”, the authors decided to leave Pakistan in 2012.

2.3The authors entered Denmark on a family visit visa, as one of their sons resides there. Concerning the exhaustion of domestic remedies, the authors’ asylum application was denied and, on 19 August 2013, the Refugee Appeals Board denied their appeal of that decision. Danish law does not currently permit permanent residence on the basis of family reunification.

The complaint

3.1The authors assert that Denmark would violate their rights under article 7 of the Covenant by forcibly returning them to Pakistan, where they would be persecuted because they are Ahmadi Muslims. The rights of Ahmadis are systematically violated in Pakistan. The authors fear that, due to their faith, the authorities in Pakistan would not protect them from persecution.The authors dispute the conclusion of the Refugee Appeals Board that generally difficult conditions for Ahmadis cannot serve as a ground for asylum.The Board acknowledged that Ahmadis in Pakistan are subjected to threats, harassment and significant limitations on the exercise of their faith. The European Court of Justice has noted that, under the Penal Code in Pakistan, the Ahmadi Muslim religion is punishable by three years of imprisonment and proselytizing the religion is punishable by death.

3.2The authors’ removal to Pakistan would also constitute a violation of article 18 of the Covenant, because they would be unable to display their religion in public without fear of persecution.

3.3Furthermore, the State party has violated the authors’ rights under article 14 of the Covenant by failing to provide a procedural mechanism to appeal negative decisions of the Refugee Appeals Board. Certain other countries allow appeals of negative asylum decisions before judicial courts and even the European Court of Justice.

State party’s observations on admissibility and the merits

4.1In its observations dated 23 April 2014, the State party indicates that the authors entered Denmark on 16 November 2012 using valid national passports with one-month Schengen visas issued at the Danish Embassy in Islamabad. On 1 December 2012, they applied for asylum. In their application, they stated that they had obtained the visas because they had wished to visit their son. During his interview with the Danish Immigration Service, the male author stated that it was only during his stay in Denmark that he had become aware that the female author intended to apply for asylum there and that, after discussing the situation in Pakistan with their son, they had agreed on that course of action. The female author also stated that they did not apply for asylum immediately because she had not informed the male author of her intention to do so until after their arrival in Denmark. When asked if it was correct that the male author had no intention of applying for asylum in Denmark when they left Pakistan, the female author confirmed that and stated that she had needed time to persuade the male author to agree to it.

4.2Concerning the authors’ reasons for leaving Pakistan, on his asylum application, the male author claimed that imams were turning people against Ahmadis. He stated that he had encountered problems with the authorities and unspecified private individuals in Pakistan and had been subjected to harassment. On her asylum application, the female author stated that mullahs in Pakistan had damned the authors in mosques, spoken ill of them, instructed the authors’ employees to quit their jobs and told others not to patronize the authors’ business. Both authors claimed on their applications that they had received threats that they would be killed if they did not leave the country or renounce their religion. During their interviews with the Danish Immigration Service, the male author stated that the authors had received anonymous, threatening letters every 10 to 15 days, beginning approximately four to six months before their departure. The female author stated that the first letter had arrived in June 2012 (i.e., about four to five months before their departure) and that subsequent letters had arrived thereafter about once or twice a month. She further stated that the letters had been placed in their garage at night, the authors had also received them at their business and the last letter had arrived about 10 days before they left Pakistan. During the hearing before the Refugee Appeals Board, the female author stated that the first threat had arrived in early 2012, in the form of a folded piece of paper left in front of their front door, and that several identical letters had arrived thereafter every 7 to 14 days.

4.3On her asylum application, the female author stated that a cross had been put on the wall of their house at night one day, about four or five months before they left Pakistan. She stated that, thereafter, crosses were regularly put on the wall of the house, sometimes every day, and at other times once a month. During his interview with the Service, the male author alleged that a cross on a house wall signified that an Ahmadi lived there and was a target for killing. The male author did not know if the cross had been put on the house wall once or several times, but stated that “it” had occurred about six months before the authors’ departure. He did not know who had done it. During their interview with the Service, the authors further stated that the male author’s nephew had been killed during an attack on a mosque on 28 May 2010. During his interview with the Service, the male author further stated that he had left Pakistan for health reasons and due to the general situation for Ahmadis; that Ahle Suntal and Ahle Hadees, groups opposed to the Ahmadi religion, were pursuing the authors due to their faith; and that he feared being killed by members of those groups or the Taliban. The authors stated that no further incidents had occurred since their departure from Pakistan.

4.4On 8 May 2013, the Service denied the authors’ asylum application. During their hearing before the Refugee Appeals Board, the authors reiterated their allegations concerning the letters and the cross. The female author stated that other Ahmadis had received threats similar to the ones the authors had received.

4.5The State party provides a translation of the decision of the Refugee Appeals Board. The Board accepted that the authors were Ahmadis and took note of their claim that their nephew had been killed on 28 May 2010 during an attack at an Ahmadi mosque. It accepted the authors’ allegations that they had received threatening letters beginning in June 2012 and that unknown individuals had painted a cross on the wall of their house around the same time. The authors had alleged that the threatening letters each contained three lines of Urdu, all stating that the authors would be killed if they did not convert to Sunni Islam or leave Pakistan. The Board noted that, beyond this, the authors had not been subjected to abuse. The Board observed that there were between 2 and 4 million Ahmadis in Pakistan and that Pakistani legislation had significantly restricted their ability to practise their faith. As a result, Ahmadis were often threatened and harassed by unspecified other groups. However, the Board found that the authors had not substantiated their claim that they would face a specific and individualized risk of persecution or abuse in Pakistan. The Board reasoned that the persecution endured by the authors had been of “limited severity”, as they had only been subjected to threats for a short period of time before their departure. Moreover, these anonymous threats were “of a nature similar to the nature of anonymous threats to which many [Ahmadis] have been subjected”. The Board also took into account the female authors’ statement that the authors’ sons still lived in the same house in Lahore in which the authors had lived, continued to work in the family business and had not been subjected to harassment following the authors’ departure. The Board stated that the generally difficult situation for Ahmadis in Pakistan could not in itself justify granting a residence permit to the authors.

4.6On 25 April 2013, in a separate procedure, the authors applied for residence permits on humanitarian grounds. Their humanitarian application was denied, but, on 2 September 2013, the authors applied to have it reopened.

4.7On 25 October 2013, the Immigration Service approved the authors’ application for financial support for assisted voluntary return to Pakistan. By letter dated 10 January 2014, the authors stated that they no longer wished to avail themselves of the financial support scheme for the purpose of assisted voluntary return. Accordingly, on 29 January 2014, the Immigration Service withdrew its approval of this financial support.

4.8The State party considers that the communication is manifestly unfounded and is therefore inadmissible and devoid of merit. The authors have not established substantial grounds for believing that they would face a specific and individualized risk of treatment contrary to article 7 in Pakistan due to their religious beliefs. There is no evidence indicating that they were particularly singled out or that the crosses on their house were followed by verbal threats. The authors stated several times to the Danish authorities that they had been harassed in the same way as other Ahmadis and had not received any verbal threats. On 25 April 2013, the male author stated during his interview with the Service that no one had ever sought the authors out in person, face to face. On 19 August 2013, the female author stated during her hearing before the Board that the authors had not received any direct verbal threat. The decision of the Refugee Appeals Board was well founded and based on a comprehensive and thorough examination of the evidence in the case and on current background material on the situation of Ahmadis in Pakistan.

4.9Concerning their claim under article 18 of the Covenant, the authors were born in 1935 and 1945, respectively, have always been Ahmadis, and had always lived in Pakistan until November 2012. The authors cannot be required to hide their religious beliefs in order to avoid encountering problems in Pakistan. However, the Board found that the situation that they risked facing there was not so severe as to indicate a well-founded fear of persecution by authorities or private individuals as a result of their religious beliefs.

Author’s comments on the State party’s observations

5.1In submissions dated 26 and 27 August 2014, the authors inform the Committee that, on 22 May 2014, the Ministry of Justice decided to reopen the authors’ application for a residence permit on humanitarian grounds. Their deportation was stayed pending a determination on these proceedings.

5.2Concerning the State party’s observation on their application for financial support for assisted voluntary return to Pakistan, the authors maintain that, when they were summoned to an interview with the Danish police, they were motivated to sign documents, including a form for voluntary return assistance, out of a fear of being detained and removed to Pakistan. There was nothing voluntary about the situation.

5.3The State party erroneously refers to the situation of Ahmadis in Pakistan as a generally difficult situation. Ahmadis are the target of religious or ethnic cleansing in Pakistan and the situation for Ahmadis in Pakistan has been deteriorating since 2012. The authors are unable to seek protection from the Pakistani authorities, who might accuse them of violating the law against blasphemy. In 2013, approximately 100 individuals were accused of violating that law.

5.4In further comments dated 15 September 2015, the authors add that the State party has violated their rights under articles 6 and 13 of the Covenant. The female author was unable to attend religious gatherings in Pakistan because it was too dangerous for her to do so, while the male author risked his life while “gather[ing] with other male members of the community”. The authors’ daughter has obtained refugee status in the United Kingdom of Great Britain and Northern Ireland and one of their sons had to flee Pakistan after the authors had left. More recently, another of the authors’ relatives was attacked because he is an Ahmadi. Some individuals believe that killing Ahmadis will allow them to access heaven. Thus, the authors have a well-founded fear of being subjected to violence on account of their faith.

State party’s further observations

6.1On 17 June 2015 and 11 February 2016, the State party reiterates its prior observations and informs the Committee that, on 29 October 2014, the authors’ reopened application for a residence permit on humanitarian grounds was denied by the Danish Immigration Service. On 27 April 2015, the Immigration Appeals Board upheld that decision.

6.2The authors’ comments contain no information on their alleged personal risk of harm. Concerning the situation of Ahmadis in Pakistan, the State party refers to a report by LandInfo, dated 3 July 2014 and available on the Refugee Appeals Board website.

6.3Asylum proceedings fall outside the scope of article 14 of the Covenant. The authors’ claim under article 14 is therefore inadmissible ratione materiae.

6.4Prior to their comments dated 15 September 2015, the authors had not previously invoked articles 6 or 13 of the Covenant and they have not substantiated these claims. The allegation that one of the authors’ relatives has been granted asylum in the United Kingdom cannot lead to a different assessment of their asylum application. No further information about the specific circumstances of the relative’s asylum claim is available. The authors’ non-specific information about the assault of a family member and their son’s escape from Pakistan cannot lead to a different assessment of the authors’ asylum case either.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claims contained in a communication, the Human Rights Committee must decide, in accordance with rule 93 of its rules of procedure, whether the claim is admissible under the Optional Protocol.

7.2The Committee notes, as required underarticle 5(2)(a) of the Optional Protocol, that the same matter is not being examined and has not been examined under another procedure of international investigation or settlement. The Committee also notes that it is undisputed that the authors have exhausted all available domestic remedies, as required under article 5 (2) (b) of the Optional Protocol.

7.3Concerning the authors’ claim under article 14 of the Covenant that they were unable to appeal the negative decision of the Refugee Appeals Board to a judicial body, the Committee refers to its jurisprudence that proceedings relating to aliens’ expulsion do not fall within the ambit of a determination of “rights and obligations in a suit at law” within the meaning of article 14 (1) but are governed by article 13 of the Covenant. Furthermore, the latter provision offers asylum seekers some of the protection afforded under article 14 of the Covenant, but not the right of appeal to judicial courts. On this basis, the Committee concludes that the authors’ claim is inadmissible ratione materiae under article 3 of the Optional Protocol. As to the authors’ claim that their rights under article 13 were violated, the Committee observes that the authors have not alleged that they were unable to effectively present their case before competent Danish authorities as to why they should not be removed, and that, in addition to their asylum claim, the authors filed a humanitarian application for residence that was evaluated twice by the State party’s authorities. The Committee therefore considers that the authors have not sufficiently substantiated their claim under article 13 and concludes that such claim is inadmissible under article 2 of the Optional Protocol for lack of substantiation.

7.4As for the authors’ claim regarding the risk they would face in case of return to Pakistan due to their adherence to the Ahmadi Muslim faith, the Committeeconsiders that the claim has been sufficiently substantiated for purposes of admissibility in connection with articles 6 and 7, and that article 18cannot be dissociated from the author’s allegations under articles 6 and 7.Accordingly, the Committee declares this claim admissible and proceeds to its examination on the merits.

Consideration of the merits

8.1The Human Rights Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5(1) of the Optional Protocol.

8.2The Committee notes the authors’ claim that they would face ill-treatment or death if they were removed to Pakistandue to threats they received because they are Ahmadis; and that the government authorities in Pakistan would not be able to shield them from persecution, as the Ahmadi religion is criminalized under domestic law. The Committee also notes the State party’s observations, inter alia, that there is no evidence indicating that the authors were particularly singled out in Pakistan and that the decision of the Refugee Appeals Board was wellfounded and based on a comprehensive and thorough examination of the evidence in the case and on current background material on the situation of Ahmadis in Pakistan.

8.3The Committee recalls its general comment No. 31, in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm such as that contemplated inarticles 6 and 7 of the Covenant. The Committee has also indicated that the risk must be personal and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists. Thus, all relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin.The Committee recalls that it is generally for the organs of States parties to examine the facts and evidence of the casein order to determine whether such a risk exists, unless it can be established that the assessment was arbitrary or amounted to a manifest error or denial of justice.

8.4The Committee takes note that the State party’s authorities, after examining the evidence provided by the authorsin their asylum application, including interviews and oral hearings, found that the authors had not shown that they would be at a personal risk of harm upon return to Pakistan. The Committee notes in particular that the Refugee Appeals Board accepted the authors’ allegations that they had received threatening letters, beginning in June 2012, and that unknown individuals had painted a cross on the wall of their house around the same time. The Board found that the situation that the authors risk facing was not so severe as to indicate a well-founded fear of persecution by authorities or private individuals as a result of their religious beliefs. It observed that there were between 2 and 4 million Ahmadis in Pakistan, and that Pakistani legislation had significantly restricted their ability to practise their faith. As a result, Ahmadis were often threatened and harassed by unspecified other groups. However, the Board found that the authors had not substantiated their claim that they would face a specific and individualized risk of persecution or abuse in Pakistan. The persecution endured by the authors had been of “limited severity”, as they had only been subjected to threats for a short period of time before their departure. Moreover, these anonymous threats were of a nature similar to the nature of anonymous threats to which many Ahmadis had been subjected. The Board also took into account the female authors’ statement that the authors’ sons still lived in the same house the authors had lived in in Lahore, continued to work in the family business and had not been subjected to harassment following the authors’ departure.

8.5The Committee further takes note of the Board’s findings that,while Ahmadis in Pakistan were often subjected to threats and harassment by other groups, both authors stated during domestic proceedings that no one had verbally threatened them or approached them in person.The Committeealso notes the authors’ statements in their asylum application and communication that they had been the target of three incidents in three areas outside of Lahore, but observes that they did not provide further details on this either to the Committee or the Danish authorities. While the authors allege that one of their sons had to flee Pakistan, that assertion was not presented before the domestic authorities and the authors provide no further information on the circumstances surrounding their son’s departure.

8.6The Committee considers that the authors have not identified any irregularity in the decision-making process or any risk factor that the State party’s authorities failed to take properly into account. While the authors disagree with the factual conclusions of the State party’s authorities, they have not shown that those conclusions were arbitrary or manifestly erroneous, or amounted to a denial of justice. In the light of the above, the Committee cannot conclude that the information before it shows that the authors would face a personal and real risk of treatment contrary to articles 6(1) or 7 of the Covenant if they were removed to Pakistan. In the light of this conclusion, the Committee will not examine the authors claim under article 18, in conjunction with articles 6(1) and 7.

9.The Committee, acting under article 5(4) of the Optional Protocol, is of the view that the authors’ removal to Pakistan would not violate their rights under articles 6(1), 7 or 18 of the Covenant.