Human Rights Committee

Views adopted by the Committee under article 5 (4) ofthe Optional Protocol, concerning communication No. 2594/2015 * , **

S ubmitted by :K.S. and M.S. (represented by counsel, J. Bruhn-Petersen)

Alleged victims :The authors

State party :Denmark

Date of communication :31 March 2015

Document references :Decision taken pursuant to rules 92 and 97 of the Committee’s rules of procedure, transmitted to the State party on 7 April 2015 (not issued in document form)

Date of adoption of Views :7 November 2017

Subject matter:Deportation to Afghanistan

Procedural issues :Insufficient substantiation of claims

Substantive issues:Torture or cruel, inhuman or degrading treatment or punishment

Article of the Covenant :7

Article of the Optional Protocol:2

1.1The authors of the communication are two Afghan nationals: M.S., born in 1949, and her son, K.S., born in 1993. They are the subjects of a deportation order to Afghanistan. They claim that their forcible return to Afghanistan would violate their rights under article 7 of the Covenant. The Optional Protocol entered into force for the State party on 23 March 1976. The authors are represented by counsel.

1.2On 7 April 2015, pursuant to rule 92 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested that the State party refrain from returning the authors to Afghanistan while the communication was pending before the Committee. On 7 October 2015, the State party requested that interim measures be lifted (see para. 4.8 below). On 24 April 2017, the Special Rapporteur denied the State party’s request to lift interim measures.

The facts as presented by the authors

2.1The father of K.S. was a high-ranking police official in the Najibullah administration in Mazar-e Sharif, Afghanistan. After the fall of the Najibullah regime, K.S.’ father and older brother were executed by the Taliban. As a result, the authors fled to Pakistan on an unspecified date. Having spent six or seven years in Pakistan, the authors returned to Afghanistan on an unspecified date in 2010 owing to M.S.’ poor health. A few months after their arrival, they were contacted by the Taliban, who ordered K.S. to travel to Waziristan and join the jihad. The following day, the authors left Afghanistan for Denmark.

2.2On 5 May 2010, the authors arrived in Denmark and applied for asylum on the same day. The authors note that they have about 30 family members living in Denmark and none left in Afghanistan.

2.3Soon after their arrival in Denmark, M.S. abandoned K.S., who became an unaccompanied child. As a result, the consideration of K.S.’s asylum case was suspended for more than three years. M.S. returned on an unspecified date, and the consideration of both asylum cases was resumed.

2.4On 2 December 2013, the authors had their first interview with the Danish Immigration Service. M.S. was unable to appear for the interview owing to health problems but was represented by her eldest son, who resided in Denmark.

2.5On 20 December 2013, the Danish Immigration Service rejected the authors’ asylum application. Their case was referred to the Refugee Appeals Board. K.S. presented new grounds for asylum before the Board, namely, that his family had been threatened by his sister’s former husband in the United States of America, who belonged to the Afghan diaspora and claimed to have been dishonoured by his sister’s divorce. K.S. claimed that the former husband had sent an anonymous email to the Service stating that the authors had given false testimony in their asylum claim. When asked about the reasons for not having mentioned to the Service that he had a sister in the United States, K.S. stated that he had not considered it to be of any relevance and had not wished to involve her in his asylum case, and because he had been unaware of his sister’s divorce at that time.

2.6On 23 June 2014, the Refugee Appeals Board rejected the authors’ asylum application on two grounds. First, it considered that their conflict with the Taliban, originating from K.S.’s father and brother, was too isolated and remote in time and that the authors would therefore be considered of little importance to the Taliban. Second, it rejected for lack of credibility the claim about the family conflict relating to the sister’s divorce. The Board emphasized in that regard that the authors had intentionally given incorrect information as they had stated before the Danish Immigration Service that they had lost contact with K.S.’s sister even though they had contacted her shortly after their arrival in Denmark, as stated before the Board. The Board found not credible the statement by K.S. that they had given incorrect information because they had not wanted to involve his sister in his case.

2.7On 10 July 2014, the authors filed an application with the Refugee Appeals Board to reopen the asylum process and submitted evidence of the alleged conflict between their family and the sister’s former husband, consisting of a transcript of threats made by the former husband on the telephone, in which he said that he would “find a way to have them deported to Afghanistan, where he would deal with them the Afghan way”, and a restraining order from a United States court against him. On 6 August 2014, the authors provided additional information, namely, that the former husband’s father was a high-ranking official in the security forces in Afghanistan. On 17 November 2014, the authors presented new information arguing that K.S., a convinced agnostic, would face an individual risk upon return to Afghanistan, and that the sister’s former husband “would expose K.S. as an apostate”.

2.8On 19 March 2015, the Refugee Appeals Board rejected the authors’ request to reopen the asylum proceedings. It rejected the information about the sister’s former husband on the grounds that it did not contain a credible explanation as to why such information had not been presented before. The Board concluded that no new important information had been provided to justify a reopening of the case. It also rejected the argument that K.S. would face an individual risk in Afghanistan as an agnostic, by considering that, since the author had not been “active about his views”, he would not face persecution for that reason in Afghanistan, based on several reports according to which a non-believer would not face any problems or sanctions as long as they did not display any lack of respect for Islam. In that regard, the Board noted that K.S. had never made any visible public expression of his views on religion or otherwise participated in the public debate, whether in Afghanistan or after his departure. It also noted that K.S. had not initially presented his lack of religious beliefs as grounds for asylum, before either the Danish Immigration Service or the Board, but had merely stated that he was a non-believer. Since the information about the sister’s former husband was dismissed as lacking credibility, the Board did not examine the possibility that the former husband would expose K.S. as an apostate in Afghanistan.

2.9K.S. notes that he is a member of several Facebook groups supporting free speech, human rights and the rights of atheists and agnostics. In that context, he has repeatedly posted material that could be perceived as insulting to Muslims. That material has received attention both from Afghans in Afghanistan and members of the Afghan diaspora in Denmark. For example, he received a Facebook message from a government official who worked in the Office of the President of Afghanistan in response to a Facebook post.

2.10M.S. has allegedly been diagnosed with severe mental health issues, including depression, post-traumatic stress disorder and personality change. Her most recent psychiatric report concluded that her current level of function was “that of a person suffering from chronic psychosis or dementia”. She is under daily care from her family in Denmark. On 6 August 2014, M.S. applied for a residence permit on humanitarian grounds. Her application was rejected on 14 November 2014. She notes that, according to established practice, single Afghan women without support networks in Afghanistan are eligible for a residence permit on humanitarian grounds owing to their extreme vulnerability. In the present case, the rejection was based on two main arguments: first, she was not considered a single woman without a network, as she would be returned with her adult son, K.S.; and second, her health condition was not considered to be so severe as to meet the Danish requirements for granting residence for health reasons. The Refugee Appeals Board noted that M.S. suffered from unspecified depression, personality change caused by catastrophic experiences and post-traumatic stress disorder. Yet, according to the information provided, her mental disorder did not require therapy. The authors note that the Board did not take into account that K.S. had not been to Afghanistan since the age of 7 and could therefore not be considered as a “network”, as he himself had no network in Afghanistan and was in no condition to offer his mother the typical support of a network, such as attending to her needs and supporting her financially.

The complaint

3.1The authors claim that their removal to Afghanistan would expose them to a risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment in violation of article 7 of the Covenant.

3.2The authors submit that K.S. could face death or torture owing to his disaffiliation from Islam. K.S. notes that he was raised in a secular family — although M.S. considers herself a Muslim — and that his father’s and brother’s executions and his own experience of having been beaten by the Taliban as a boy for not being able to recite the Qur’an reaffirmed his repudiation of Islam. He has rejected any religious affiliation and considers himself an agnostic. He is not an atheist and has no adversity to religion, only to the way it influences politics and society. He notes that, according to the 2013 Office of the United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, persons perceived as contravening sharia law, including religious minorities, converts from Islam or persons accused of blasphemy, may be in need for international protection. He notes that converting from Islam to another religion is deemed apostasy and those found guilty may be given three days to recant or face death. He claims that, by analogy, atheists also face persecution since atheism in Afghanistan equates to apostasy. He would therefore be at risk if he chose not to conceal his views and beliefs in Afghanistan.

3.3With regard to M.S., she would face a risk of being subjected to torture or to cruel, inhuman or degrading treatment or punishment if returned owing to her status as an extremely vulnerable individual, i.e., a single woman with health issues. She explains that she would be left alone in an extremely unforgiving environment if returned to Afghanistan, since her son would not be able to care for her and support her financially at the same time. In addition, her health has deteriorated during her stay in Denmark. She is 66 years old and has been diagnosed with depression, post-traumatic stress disorder, chronic psychosis, dementia and personality change after catastrophic experiences.

3.4Finally, the authors claim that they are both at risk of having their rights violated if returned to Afghanistan owing to general conditions for returnees in the country. They note that the general situation for Afghan returnees is precarious, in the light of security issues and the lack of basic services, together with the need for a well-established network in order to ensure security and integrity.

State party’s observations on admissibility and merits

4.1In its submissions dated 7 October 2015, the State party maintains that the communication is inadmissible or, alternatively, without merit. The State party also describes the proceedings before the Refugee Appeals Board.

4.2The State party submits that, on 15 April 2015, the authors once again requested that the Refugee Appeals Board reopen their asylum proceedings. By its decision of 20 July 2015, the Board rejected that request. The Board considered that no new substantial information on the authors’ conflicts in their country of origin had been submitted to that already assessed by it. It also considered that K.S.’s Facebook activities and posts had been limited and had not attracted any particular attention and therefore did not render it probable that he would risk persecution if returned to Afghanistan. It noted, in that regard, that K.S. had been contacted by one person only, whose position in Afghanistan and relation to K.S. seemed completely unsubstantiated, who had asked him to withdraw some information and return to Islam or else he would report him. With regard to the alleged threat against the authors by the sister’s former husband, the Board reached the same conclusion regarding the lack of credibility of such allegations. It added that, according to new information, the sister’s son had been present during K.S.’s interview with the Danish Immigration Service, rendering even more unlikely that K.S. had been unaware of his sister’s situation. With regard to the situation of Afghan returnees, the Board noted that several returns had taken place in collaboration with Afghan authorities since the issuance of the note verbale referred to by the authors. Finally, with regard to the health situation of M.S., the Board considered that such information was not itself relevant to the asylum process and fell outside the competence of the Board as it was of a humanitarian nature and should therefore be considered by the Ministry of Immigration, Integration and Housing in the context of an application on humanitarian and compassionate grounds.

4.3The State party argues that the authors have failed to establish a prima facie case for the purpose of admissibility and that their allegations concerning an alleged risk of a violation of the rights enshrined under article 7 are manifestly unfounded and therefore inadmissible.

4.4On the merits, the State party contends that the authors’ return to Afghanistan would not violate article 7 of the Covenant. The State party recalls that the risk of irreparable harm must be personal and that there is a high threshold for providing substantial grounds for establishing such a risk. The authors have not disputed the assessment made by the Refugee Appeals Board that the grounds for their request for asylum had been based on the authors’ fear of the Taliban but had not included the information contained in their communication to the Committee. With regard to the other grounds, the authors have failed to provide any new and specific information about their situation other than that already assessed by the national authorities. The Board assessed thoroughly the facts and evidence produced by the authors and the background information available on conditions in Afghanistan, and concluded that no humanitarian grounds existed contrary to the international obligations of Denmark. The authors disagree with the Board in its assessment of evidence and background information, and purport to use the Committee as a fourth instance.

4.5With regard to M.S.’s health circumstances, the State party notes that the European Court of Human Rights has in its decisions adopted a restrictive approach in cases where it was submitted that article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms would be violated in case of return of persons with health issues. The State party notes that a case must present exceptional circumstances and compelling humanitarian considerations for a return to be contrary to article 3 of the Convention. The State party maintains that the present case presents no such exceptional circumstances or compelling humanitarian considerations as to render the refusal of residence on humanitarian grounds contrary to the international obligations of Denmark, as considered by the Ministry of Immigration, Integration and Housing in its decision of 14 November 2014. M.S. does not suffer from very serious physical or mental disorder requiring therapy and, consequently, she fails to meet the criterion for being granted discretionary leave to remain on medical grounds. Also, the State party’s practice to grant residence to Afghan women who have no male family members or social network in Afghanistan owing to the very harsh living conditions and limited possibility of survival for single women is not applicable to M.S. since she would be returned together with her adult son, who has lived in Afghanistan for many years.

4.6With regard to K.S.’s religious stance, the State party contends that, as concluded by the Refugee Appeals Board, he would not risk abuse contrary to article 7 of the Covenant in Afghanistan owing to his agnostic persuasion and on the basis of background information and his activities before and after his departure from Afghanistan. This is particularly true when considering that K.S. originated from the city of Mazar-e Sharif — the third largest city in the country — and appears to be a very low-profile individual who has never actively participated in any public debate apart from sharing a few posts on Facebook. The State party adds that, although K.S. gave a detailed account of his situation in the asylum proceedings, he did not claim a fear of persecution due to his agnostic persuasion until 17 November 2014, in the context of his request that his asylum proceedings be reopened. According to the background information available, he would not be at risk in failing to take part in religious Islamic traditions and rites.

4.7Finally, with regard to the authors’ allegations concerning the threats received from the sister’s former husband, the State party notes that the Refugee Appeals Board considered the allegations not credible since the authors had not proved that they had received any specific and serious threats, and since those grounds for asylum had not been raised previously by K.S. in the context of the Danish Immigration Service interviews or the Board hearing. Also, the State party notes that the existence of a restraining order against the former husband due to a spousal conflict does not render probable that the authors’ rights enshrined under article 7 would be at risk of being violated if returned to Afghanistan.

4.8The State party requests that interim measures be lifted in the light of the inexistence of irreparable harm to the authors in case of deportation.

Authors’ comments on the State party’s observations

5.1In their submissions of 11 November 2015, the authors claim that the State party has made an erroneous assessment of the evidence in the case, in determining both the authors’ lack of credibility and the inexistence of a risk of a violation of article 7.

5.2The authors contend that, in its decision of 23 June 2014, the Refugee Appeals Board relied primarily on an anonymous email to the Danish Immigration Service to justify the authors’ alleged lack of credibility with regard to the family conflict.

5.3With regard to K.S’s religious stance, the author has consistently stated his conviction since his first interview, and Danish authorities have acknowledged his disaffiliation from Islam. He is likely to express his conviction if returned to Afghanistan. This can be expressed implicitly, for example, by failing to participate in religious events and practices, and he may face persecution as a result. The authors note that, according to the Home Office of the United Kingdom of Great Britain and Northern Ireland, in a note on Afghanistan, converts from Islam are in general at a real risk of persecution in Afghanistan and should therefore be granted asylum unless there is clear evidence that a particular individual would not be at risk. The authors note that atheists face a stronger condemnation than converts. The male author entered Denmark at the age of 17 and has become more aware of his agnostic conviction since then, including by posting anti-religious content on Facebook.

5.4As regards M.S., if returned, she would be without any network, which would put her at risk in the light of her age and her mental health condition.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claims contained in a communication, the Human Rights Committee must decide, in accordance with rule 93 of its rules of procedure, whether it is admissible under the Optional Protocol.

6.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

6.3The Committee notes the authors’ claim that their removal from Denmark to Afghanistan would expose them to a risk of a violation of their rights under article 7 of the Covenant based on K.S.’s religious disaffiliation, on M.S.’s health condition and on the general conditions for Afghan returnees in the country of origin.

6.4The Committee notes K.S.’s arguments that he would face persecution in Afghanistan because atheism is equated with apostasy, which may entail death for those who choose not to recant. The State party has stated that K.S.’s allegations regarding a fear of religious persecution were assessed by the Refugee Appeals Board but found not credible owing to the author’s low profile, as he had not actively participated in any public debate other than sharing a few Facebook posts, which had gathered very limited attention. Also, the author had only raised his fear of persecution relating to his agnostic persuasion on 17 November 2014, when he requested that his asylum proceedings be reopened. The Committee notes, in that regard, that while the author had stated that he was a non-believer at his interviews with the Danish Immigration Service and at the hearing before the Board, he had failed to allege a fear of persecution on the basis of his religious disbeliefs. It also notes that the author, who presents himself as an agnostic and not an atheist, bases his fear of a violation of his rights under article 7 on the general situation for atheists in Afghanistan, without relating the situation to his personal context and, in particular, to his lack of anti-religious activism either in Afghanistan or in Denmark. The Committee therefore considers that the author K.S. has failed to sufficiently substantiate his claim of a risk of a violation of article 7 of the Covenant based on his agnostic convictions, and declares that part of the communication inadmissible in accordance with article 2 of the Optional Protocol.

6.5The Committee notes the authors’ allegations made on the basis of the general situation of Afghan returnees, including the security situation and the lack of basic services. However, it considers that those allegations are general in nature and do not establish a personal risk under article 7 of the Covenant. The Committee is also aware of reports about the deteriorating situation in Afghanistan. The obligation not to remove an individual contrary to a State party’s obligations under the Covenant applies at the time of removal. The Committee recalls that, in cases of imminent deportation, the material point in time for assessing the issue must be that of its own consideration of the case. Accordingly, in the context of the communications procedure under the Optional Protocol, in assessing the facts submitted to its consideration by the parties, the Committee must also take into account new developments brought to its attention by the parties that might have an impact on the risks that an author subject to removal could face. In the present case, the information in the public domain has signalled a significant deterioration in the situation in Kabul in recent times. However, on the basis of the information in the case file, the Committee is not in a position to assess the extent to which the current changed situation in their country of origin may impact the authors’ personal risk. In this context, the Committee recalls that it remains the responsibility of the State party to assess continuously the risk that any person would face in case of return to another country before the State takes any final action regarding his or her deportation or removal.

6.6Without prejudice to the continuing responsibility of the State party to take into account the present situation of the country to which the author would be deported, and based on the information provided by the parties, the Committee considers this part of the communication to be insufficiently substantiated and inadmissible pursuant to article 2 of the Optional Protocol.

6.7The Committee notes, however, that the authors’ allegations regarding the risk of a violation of article 7 on the basis of M.S.’s health condition have been sufficiently substantiated, are intimately linked to the merits and should be considered at that stage.

6.8The Committee therefore declares the communication admissible insofar as it appears to raise issues under article 7 of the Covenant with regard to M.S.’s health condition and proceeds to its consideration on the merits.

Consideration of the merits

7.1The Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.

7.2The Committee notes the authors’ allegations that M.S., who is 68 years old, has been diagnosed as suffering from depression, post-traumatic stress disorder and personality change, and has no support network in Afghanistan, would be subjected to treatment contrary to article 7 of the Covenant if returned to Afghanistan.

7.3The Committee recalls paragraph 12 of its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by article 7 of the Covenant, which prohibits cruel, inhuman or degrading treatment. The Committee has also indicated that the risk must be personal and that the threshold for providing substantial grounds to establish that a real risk of irreparable harm exists is high.

7.4The Committee further recalls that it is within the jurisdiction of the States parties to examine the facts and evidence of the case in order to determine whether such a risk exists, unless it can be established that the assessment was clearly arbitrary or amounted to a manifest error or denial of justice.

7.5The Committee acknowledges M.S.’s advanced age, her diagnosed medical condition and her need for daily care and support. However, it notes that the Refugee Appeals Board assessed thoroughly M.S.’s grounds for asylum but considered that the author’s mental disorder did not require therapy, and that she would be returning with her adult son, K.S., who has lived in Afghanistan for many years, and therefore she could not be considered as not having a “support network”. The author challenges the assessment of evidence and the factual conclusions reached by the Board, but she does not provide convincing arguments for concluding that this assessment would be arbitrary or otherwise amount to a denial of justice.

7.6The Committee notes, in particular, that the author was diagnosed in May 2014 with an unspecified degree of depression, post-traumatic stress disorder and personality change, for which she is receiving no medical treatment or therapy, and that she has only been prescribed vitamins. It also notes that she would be returned together with her adult son K.S., who has lived in Afghanistan for a number of years. It further notes the authors’ argument that K.S. would not be able to support M.S. financially and care for her at the same time, and that M.S. relies on the daily support of her extended family in Denmark, which she would presumably not have in Afghanistan. However, the Committee considers that the authors have not provided any specific information or evidence suggesting that M.S.’s medical condition requires specialized assistance and/or medical treatment that she would be unable to obtain in Afghanistan.

7.7In the light of the foregoing, the Committee considers that the authors have failed to show that M.S.’s life or physical integrity would be at imminent and direct risk as a result of her removal to Afghanistan. The Committee therefore concludes that the author M.S’s removal to Afghanistan would not constitute a violation of her rights under article 7 of the Covenant.

8.The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the author’s removal to Afghanistan does not violate her rights under the Covenant.