Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No. 2774/2016 * , **

Communication submitted by:Y (represented by counsel, Eddie Khawaja)

Alleged victim:The author

State party:Denmark

Date of communication:28 August 2015 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 15 June 2016 (not issued in document form)

Date of adoption of decision :4 November 2022

Subject matter:Denial of request to hear spousal testimony during asylum appeal hearing

Procedural issue :Admissibility – manifestly ill-founded

Substantive issues:Aliens’ rights; aliens’ rights – expulsion

Article of the Covenant :13

Article of the Optional Protocol:2

1.The author of the communication is Y, a national of the Islamic Republic of Iran born in 1985. Following the rejection of his asylum application in Denmark, he claims that the State party has violated his rights under article 13 of the Covenant. The Optional Protocol entered into force for the State party on 23 March 1976. The author, who remains in Denmark, is represented by counsel.

Factual background

2.1The author’s wife, W, is a national of Iraq and was born on 1 January 1993. Her biological father died when she was one and a half years old. Subsequently, her mother remarried. Since 1998, when W was 5 years old, she has resided in Denmark. On 30 June 1999, when W was 6 years old, she was granted the right of residency in Denmark when her mother was granted refugee status there.

2.2The author submits that, in February 2007, when W was 14 and the author was 21, they entered into a religious marriage after having first met in person in the Islamic Republic of Iran. The author maintains that they had previously met online. From 2007 to 2010, W occasionally visited the author in the Islamic Republic of Iran. On 26 August 2010, the author and W formally married. In March and October 2012, the author visited W in Denmark with a visitor’s visa. On 23 December 2012, their child was born while the author was still in Denmark and, on that basis, the author’s visa to remain in Denmark was extended by three months.

2.3On 5 April 2013, the author filed an application for family reunification to the Danish Immigration Service. Under section 9 (1) (1) of the Aliens Act, a residence permit may be granted if an applicant and the applicant’s spouse (who must be a permanent resident of Denmark) are both at least 24 years of age. When the author applied for family reunification, W was 20 and thus had not reached the required minimum age. The author requested that the Immigration Service waive the minimum age requirement because the couple feared residing in the Islamic Republic of Iran together, owing to threats that W and her mother had received from members of the family of W’s deceased biological father. Those relatives lived in the Islamic Republic of Iran and Iraq. The threats had been transmitted through emails, letters and phone calls. The letters were mostly written in Arabic, which the author did not understand (while W does understand Arabic.)

2.4On 3 May 2013, in the light of the author’s allegations of threats received by W and her mother, the Immigration Service requested an opinion from its First Asylum Division as to whether W was entitled to asylum owing to a risk of being persecuted in Iraq. On 11 July 2013, the First Asylum Division issued an opinion in which it stated that there was no reason to believe that W would face persecution that would justify the granting of asylum in the case of her return to Iraq. On 16 July 2013, the Immigration Service consulted the author’s counsel about the opinion of the First Asylum Division. On 23 July 2013, the author’s counsel contested the findings of the First Asylum Division in writing.

2.5On 29 August 2013, the Immigration Service rejected the author’s application for family reunification, based on the statutory minimum age requirement for both spouses. In its decision, the Immigration Service stated that it had also considered whether the author qualified for a residence permit based on exceptional reasons, under a separate provision of domestic legislation (section 9.c (1) of the Aliens Act.) The Immigration Service considered that the author had not demonstrated any exceptional reasons that could justify the granting of a residence permit within the circumstances provided for by law. The Immigration Service considered, inter alia, that the existence of the alleged threats had not been established, since the sender of the threatening emails could not be verified and that the emails had not been accompanied by a certified translation. The Immigration Service considered that the couple could seek assistance from the authorities in the Islamic Republic of Iran or Iraq if they felt threatened by W’s relatives. The Immigration Service also considered that the couple’s child did not have individual ties to Denmark given the child’s young age and short period of residency in Denmark. In that regard, the Immigration Service recalled its practice according to which – for the purpose of family reunification applications – children were considered to have individual ties in Denmark after a stay of about six or seven years. On 7 September 2013, with the assistance of counsel, the author appealed against the decision of the Immigration Service to the Immigration Appeals Board.

2.6On 17 September 2013, the author launched a set of parallel proceedings by applying to the Immigration Service for asylum in Denmark. On 22 October 2013, the Immigration Service conducted a screening interview with the author. During that interview, the author stated that he had come to Denmark because of his wife’s pregnancy but had been told, after arriving in the country, that his life would be in danger in the Islamic Republic of Iran. He raised the following allegations in connection with his claim for asylum: (a) he would be imprisoned and executed if he were removed to the Islamic Republic of Iran, owing to his opposition to the ruling regime and his political activities against that regime; (b) he had had a conflict with three co-workers at his former place of employment, as those co-workers, who were members of the Islamic Revolutionary Guard Corps, wanted the author to assist with creating a website to recruit volunteer militiamen to fight in the civil war in the Syrian Arab Republic; (c) just after the author’s arrival in Denmark, his mother called him and told him that certain members of the foundation at which he had worked in the Islamic Republic of Iran had come to her home to look for the author because he had not reported to work; (d) between approximately 10 and 14 days after the author’s arrival in Denmark, one of his former co-workers called and told him that he was wanted by the Islamic Revolutionary Guard Corps; (e) the author had unlawfully accessed Facebook while in the Islamic Republic of Iran; and (f) the author was very politically active in Denmark, where he had unlawfully criticized the authorities of the Islamic Republic of Iran on social media.

2.7On 1 November 2013, the Immigration Service conducted an in-depth, substantive asylum interview with the author. During the interview, the author stated that, before having arrived in Denmark, he had never participated in political activities and that he was not applying for asylum on political grounds. The author raised the following allegations in connection with his claim for asylum: (a) he feared three former co-workers in the Islamic Republic of Iran who had asked the author, in the context of his employment for a foundation, to set up a website for volunteers who wished to support the Government of the Syrian Arab Republic in the country’s civil war (one of those co-workers was a high-ranking government representative); (b) while in the Islamic Republic of Iran, the author had accessed – through his work as a web designer – Western media and anti-government websites; (c) the author was attending church and planned to convert to Christianity; and (d) the author had published pro-Christian content on his Facebook page. When asked why, after his arrival in Denmark, he had waited to apply for asylum, the author stated that he had decided to remain in the country after learning that he was wanted by the authorities in the Islamic Republic of Iran. He further stated that his family in the Islamic Republic of Iran had not experienced any problems with the authorities because of the author’s own conflicts. The author did not raise allegations of threats – against himself, W or her mother – from the relatives of W’s deceased biological father.

2.8While the author’s asylum application was pending, on 11 February 2014, the Immigration Appeals Board rejected the author’s appeal concerning his application for family reunification. It reiterated the statutory minimum age requirement for family reunification and reassessed whether the author qualified for a residence permit on exceptional grounds. On the latter issue, the Board examined, inter alia, the author’s arguments regarding W’s mental health needs – which had only come to light after the rejection of the author’s family reunification application – and regarding the couple’s right to family life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). The Board noted the documentation that the author had provided to demonstrate that W suffered from anxiety, but observed that she did not have a serious illness or disability that would render it burdensome for the couple to reside in the Islamic Republic of Iran or Iraq. The Board considered that the information provided by the couple did not establish that W had health issues that would prevent her from taking up residency in Iraq or the Islamic Republic of Iran, where the couple could exercise their right to family life. The Board reiterated the finding of the Immigration Service regarding the lack of individual ties of the couple’s child to Denmark, based on the established practice that such ties were considered to have been formed after a stay of six or seven years. Regarding the aspects of the appeal that pertained to the risk of persecution that the couple would face in the Islamic Republic of Iran or Iraq, the Board considered that that risk would be reassessed by the Immigration Service in the context of the author’s pending asylum application. Accordingly, the Board did not assess that risk in connection with the application for family reunification.

2.9On 26 March 2014, the Immigration Service rejected the author’s asylum application. The Immigration Service did not address the author’s fear of persecution upon return to the Islamic Republic of Iran based on threats from family members of the biological father of his wife, as the author had not raised that issue during his substantive asylum interview with the Immigration Service in 2013.

2.10The author filed an appeal against the negative asylum decision to the Refugee Appeals Board. On 4 June 2014, the Board remitted the case to the Immigration Service and requested that it consider the author’s allegations of a fear of persecution in the Islamic Republic of Iran based on threats from the relatives of W’s biological father.

2.11On 1 December 2014, the Immigration Service conducted a second substantive asylum interview with the author. During the interview, the author made statements, including the following. In 2010, he received a threat by phone from the cousin of the biological father of W. The author did not know how the cousin had obtained his phone number. The cousin stated that he wanted to kill the author and forbade the author from being with W. That was the only occasion on which the cousin and the author spoke. However, the cousin appeared to have called the author three or four times thereafter; the author did not respond to those calls. He informed the police in the Islamic Republic of Iran about the threats from the cousin, but the police did not take action. Subsequently, W’s mother received threatening letters, in which it was stated that W belonged to the family of her biological family, which wanted to control her. Later, the author’s wife began to receive emails in which the author was threatened. The couple’s son was even being threatened in recent correspondence. The author was converting to Christianity after having arrived in Denmark. He was an active member of a Facebook group for Iranian Christians in Denmark and was taking baptism classes. He was aware of the risk of expressing himself on social media about Christianity but felt that practising his Christian faith was more important than his safety.

2.12During the same interview, the Immigration Service requested clarification on certain of the author’s statements. For example, the author alternately stated that the letters received by W’s mother had been sent by W’s paternal grandmother and paternal uncle. When asked about that contradiction, the author responded that he did not know who had sent the letters. When asked in which manner the letters constituted a threat against him, the author stated that they were not really a threat directed at him. When asked to confirm that, the author then stated that he and W had also been threatened in the letters. The author was then asked about the latter contradiction. He responded that he had been threatened in the letters. When asked how many threatening letters W’s mother had received, the author was initially unable to respond. Then he stated that there may have been four such letters and that they were all written in Arabic, which he did not understand. He then stated that he only knew about two such threatening letters. When asked about the contradiction, he stated that he only knew of two threatening letters. He stated that he had seen the letters, summaries of which had been translated for him, and that he himself had not received any threatening letters in paper form. When asked, the author stated that he did not know when he had received threats through emails that had been sent to W. He was asked why he did not recall such a crucial event. He then stated that he presumed that the emails had started to arrive in 2011 and had continued until November 2014. He stated that the threats were sent by emails from family members of W’s biological father. When asked where those family members lived, the author stated that he did not know. He was asked about the same matter again and then stated that some of the family members stayed in the Islamic Republic of Iran and Iraq alternately. The author was asked why he had not mentioned the alleged threats during his asylum screening interview on 22 October 2013 or during the substantive asylum interview of 1 November 2013. He stated that he had not realized that that information would be helpful to his asylum case and that he had mentioned it in his application for family reunification.

2.13On 16 March 2015, having examined the case anew, the Immigration Service again rejected the author’s asylum application. It considered that the author’s allegations of threats of persecution were not credible and appeared to have been constructed for the purpose of his asylum case. The Immigration Service did not interview W.

2.14With the assistance of counsel, the author filed an appeal against the latter decision to the Refugee Appeals Board. On 29 May 2015, he requested that the Board postpone and remit the case, a second time, to the Immigration Service to allow W to be interviewed regarding the alleged threats of persecution from her relatives. On 1 June 2015, the Board rejected that request. On 17 June 2015, the Board held an oral hearing. The Board rejected the author’s request to allow W to provide an oral statement during the hearing, on the ground that her statement would not be relevant. On the same date, the Board rejected the author’s asylum application. In its decision, it first noted that the author had stated during the hearing that he no longer feared persecution by his former co-workers in the Islamic Republic of Iran. The author explained that the reasons for that fear had become far removed in time; the author’s family in the Islamic Republic of Iran had not experienced problems owing to the situation in his former workplace and the authorities had not searched for the author since his departure from the country. The Board then noted that the author’s statements regarding how and when he had met his wife and her mother were contradictory and conflicted with the information contained in his marriage certificate and his family reunification application. For example, the author claimed in his asylum interview to have met W for the first time by chance on the street in a park located in the area where he lived; they had stood talking on the street for about an hour and had then exchanged contact information. However, the author stated in his family reunification application that they had initially met online and then in person when the author had gone to pick her up at the airport. In addition, the author alternately stated that he had met W’s mother in 2007 and that he had met her in 2009 or 2010. The Board also observed that, while the author alleged that a member of his wife’s family had approached him at his workplace in the Islamic Republic of Iran and had threatened him, the author had not raised that claim at any point prior to the oral hearing before the Board. The Board considered that the author had expanded his allegations regarding the threats from W’s relatives during the hearing. The Board also noted that the author had not applied for asylum during his visit to Denmark in March 2012. The Board considered that, even if the author’s allegations regarding the threats were true, they did not warrant the granting of asylum. The Board reasoned that the author had continued to live in the Islamic Republic of Iran for several years after the alleged threats were first made and that his wife had stayed in the country for several periods without facing problems. The Board also did not accept as a fact that the author had converted to Christianity. His interest in Christianity had only arisen in September 2013, after the rejection of his application for family reunification. Moreover, his statement to the Board regarding his interest in Christianity did not indicate that his conversion was genuine. He had suspended his attendance at baptism classes and had no plans at that time to resume attendance. He had not told W’s family in Denmark about his conversion. The fact that he had used Facebook to transmit Christian messages and establish contact with other Christians could not lead to a different conclusion, because he was not using his real name on Facebook. Thus, there was no basis to assume that the authorities in the Islamic Republic of Iran were aware of his interest in Christianity.

2.15The author claims to have exhausted all available domestic remedies, as the decision of the Refugee Appeals Board on his asylum claim is not subject to appeal.

Complaint

3.1The author submits that the State party violated his rights under article 13 of the Covenant by failing to allow his wife to be heard during his asylum procedure. After the Refugee Appeals Board remitted the case to the Immigration Service in order to enable an evaluation of the author’s claim that the relatives of W’s deceased biological father had made threats, the Immigration Service did not interview W. Upon examining the author’s renewed appeal, the Refugee Appeals Board denied, without stated justification, the author’s request to either postpone or remit the case to the Immigration Service a second time in order to allow W to be interviewed. In the correspondence in which the Board rejected the author’s request, it stated that the author had the right to request the Board to allow W to provide an oral statement during the oral hearing. When the author made such a request through his counsel, it was denied on the ground that the statement would not be relevant. For an asylum procedure to be effective, all evidence presented by an applicant must be heard and assessed, unless there are concrete, specific and proportional reasons for the exclusion of such evidence. The Refugee Appeals Board negatively assessed the author’s credibility without permitting supporting testimony from his wife that could have clarified his own statements, thus causing prejudice to the outcome of his asylum appeal.

3.2The author emphasizes that he raised the issue of threats from the relatives of W’s biological father with the domestic authorities at a very early stage, beginning when he started to reside in Denmark.

3.3The Refugee Appeals Board decided to remit the case to the Immigration Service because it considered that the latter had not assessed the aforementioned allegation of threats from W’s relatives. The Board recognized that the Immigration Service had committed an error in that regard and had insufficiently ascertained the facts of the case.

State party’s observations on admissibility and the merits

4.1In its submission of 15 December 2016, the State party considers that the communication is inadmissible because it is manifestly ill-founded. The State party quotes at length the reasoning of the Refugee Appeals Board in its decisions on the author’s asylum appeals, and describes in detail the organization and procedures of the Board. The author has not established substantial grounds to demonstrate that his rights were violated during the asylum procedure.

4.2The communication is also without merit for the same reason. On 1 June 2015, the Refugee Appeals Board rejected the author’s second request for reconsideration of the case on the ground that it was up to the panel hearing the appeal to decide, on the day of the scheduled hearing, whether to postpone the case. That decision was made pursuant to the established practice of the Board, for which decisions on reconsideration or adjournment are made by a full panel and not by the Secretariat of the Board, when a hearing has already been scheduled. That practice allows all members of the panel of the Board to discuss the case proceedings and the procedural considerations at stake.

4.3With respect to the author’s argument that the Refugee Appeals Board rejected without justification his request to call his wife as a witness during the hearing of his appeal on 17 June 2015, the State party maintains that, under section 54 (1) of the Aliens Act, the Board decides on the examination of asylum-seekers and witnesses and the provision of other evidence. If an asylum-seeker’s statements appear to be coherent and consistent, the Board will generally accept them as factual. Based on its established practice, the Board generally allows an asylum-seeker to call a witness when the witness is directly linked to the asylum-seeker’s grounds for asylum. However, the Board may reject such testimony when, based on the overall assessment of the circumstances of the case, the testimony of the witness would not influence the outcome of the case. In the present case, the Board found that the author lacked credibility. On that basis, it determined that the testimony of W would not have had any impact on the outcome of the case. In addition, the author did not allege, during either the family reunification proceedings or the asylum procedure, that W had experienced problems of such a nature as to warrant international protection.

Author’s comments on the State party’s observations on admissibility and the merits

5.1In his comments of 29 May 2017, the author maintains that the State party acknowledged that the Refugee Appeals Board did not justify its refusal to hear W during the oral hearing for the author’s asylum appeal. The State party also acknowledged that requests to hear a witness were normally granted if the testimony was directly linked to an asylum-seeker’s request for protection. The author acknowledges that such a request may be denied if there is a high degree of certainty that the testimony would not be relevant to the outcome of the case. However, the author stated to the Board that W continuously received threats the nature of which he did not know, as they were sent in a language that he did not understand. The Board did not conclude that the threats were without relevance to the author’s claim for protection. Rather, the Board concluded that the alleged threats, even presuming the veracity of the allegations, were not sufficiently intense to warrant protection for the author.

5.2The State party appears to request that the Committee act as a body of appeal and assess the author’s credibility and the factual evidence that was presented during domestic proceedings. Such a request constitutes a misuse of the individual complaint procedure under the Optional Protocol.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication 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 and has not been examined under any other procedure of international investigation or settlement.

6.3The Committee takes note of the State party’s position that the communication is inadmissible because it is manifestly ill-founded. The Committee notes the author’s assertion that the Refugee Appeals Board violated his rights under article 13 of the Covenant by rejecting his request to remit the case a second time to the Immigration Service in order to allow his wife to be interviewed regarding the alleged threats from the relatives of her late biological father. The Committee recalls that, under article 13 of the Covenant, “an alien lawfully in the territory of a State party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.” The Committee further recalls its general comment No. 15 (1986), in which it referred to the obligation of States parties to give aliens full facilities for pursuing a remedy against expulsion to ensure the effectiveness of that right in the circumstances of their case (para. 10). As stated in the general comment, article 13 of the Covenant directly regulates only the procedure and not the substantive grounds for expulsion (para. 10).

6.4In the present case, the Committee observes that the author, who lawfully entered Denmark, faced a possibility of expulsion from the country after the rejection of his application for family reunification and his subsequent asylum claim and appeals. The Committee notes that the author remains in Denmark and that the Immigration Service denied his family reunification application based on a criterion that was equally applicable to all applicants – namely, at that time, W had not met the statutory minimum age requirement, a condition that she later met on 1 January 2017. The Committee notes that the author was given an opportunity to appeal against the decision of the Immigration Service and to submit arguments against his expulsion to the Immigration Appeals Board, and did so. The Committee notes that both the Immigration Service and the Board did not limit their evaluation to the ordinary grounds for family reunification but also assessed whether the author qualified for a residence permit on exceptional grounds. After an individualized assessment, the Board denied the author’s appeal in a reasoned written decision, though it presumed that his allegations of persecution – relating to threats from relatives of W’s deceased biological father in Iraq and the Islamic Republic of Iran – would be reassessed during his pending asylum procedure. However, the author had not raised those allegations of threats during the substantive and detailed asylum interview that he had had with the Immigration Service in 2013. The Committee notes that, when the author did raise those allegations in his appeal against the negative asylum decision, the Refugee Appeals Board remitted the case to the Immigration Service for another full examination. The Immigration Service then conducted a second substantive and detailed interview with the author regarding his modified asylum-related claims. The Committee observes that, according to the transcripts of the two substantive asylum interviews between the author and the Immigration Service on 1 November 2013 and 1 December 2014, the author was heard at length regarding his original and revised claims and was allowed to respond to questions seeking clarification regarding gaps and inconsistencies in his statements. The two interviews were conducted in the author’s native language with the services of interpreters whom he understood and the author had the opportunity to review and comment on the written interview transcripts. Upon re-examining the case when the author filed a second asylum appeal, the Refugee Appeals Board held an oral hearing during which the author had another opportunity to explain and clarify his stated grounds for asylum. The Committee notes that the Refugee Appeals Board then denied the author’s appeal in a reasoned, written decision in which it explained its findings regarding each of the grounds of asylum that the author had raised and noted various inconsistencies in the author’s narrative. In view of the foregoing, the Committee considers that the author was afforded ample procedural opportunities to submit reasons against his expulsion and to have those reasons assessed on an individualized basis by domestic decision makers.

6.5The Committee takes note of the author’s assertion that the Refugee Appeals Board might have found him to be credible had W been interviewed by the Immigration Service or been permitted to give an oral statement during the hearing before the Board. The Committee recalls that, pursuant to its general comment No. 15 (1986), the effectiveness of the right of aliens to full facilities for pursuing a remedy against expulsion depends on the circumstances of their case (para. 10). The Committee notes that the author does not allege in the communication to have provided to the Immigration Service or Board a relevant written statement from W that was not taken into consideration. The Committee also notes that the author has not provided in his submissions any material information about the threats that W and her mother allegedly received from W’s extended relatives. The Committee observes that the author does not explain in his communication why he believes that those threats were directed at him (an issue on which he provided conflicting answers during his second substantive asylum interview with the Immigration Service, in 2014), and does not explain in which respect those threats warranted the granting of his asylum claim. Accordingly, the Committee considers that the author has not sufficiently substantiated that the negative credibility determination made by the Board would have been reversed had W been interviewed by the Immigration Service or heard by the Board. In the light of the above circumstances, the Committee considers that, while the author disputes the decision of the Board to deny his requests to remit the case a second time to the Immigration Service and hear oral testimony from W, he has not sufficiently substantiated his argument that the denial of those requests constituted procedural deficiencies that could have unfairly prejudiced with a determinative effect the outcome of his asylum proceedings in violation of his rights under article 13 of the Covenant.

6.6The Committee also notes the author’s argument that the Refugee Appeals Board remitted the case to the Immigration Service because the latter had erred during the first round of asylum proceedings by failing to evaluate the threats from W’s relatives. However, the Committee recalls that, according to the transcripts from the screening and substantive interviews that took place between the Immigration Service and the author in 2013, the author had not raised allegations of such threats during the first round of asylum proceedings. Indeed, during the second round of asylum proceedings (upon reconsideration of the case by the Immigration Service), the author was asked why he had not raised those allegations during the first round of proceedings. The Committee notes that the author responded that he had not realized that those allegations would be helpful to his asylum case, and that he had raised them in the context of his family reunification application. Because the information made available to the Committee indicates that the author did not base his initial asylum claim on threats from W’s relatives or mention those threats in his asylum application or in either of his asylum interviews with the Immigration Service in 2013, the Committee considers that the author has not substantiated his argument that the failure of the Immigration Service, during the first round of asylum proceedings, to assess his claims relating to the relatives’ threats represented a procedural error that breached his rights under article 13 of the Covenant.

6.7In the light of the foregoing circumstances, the Committee considers that the author’s claim under article 13 of the Covenant is insufficiently substantiated. Accordingly, the Committee declares the communication inadmissible under article 2 of the Optional Protocol.

7.The Committee therefore decides:

(a)That the communication is inadmissible under article 2 of the Optional Protocol;

(b)That the present decision shall be transmitted to the State party and to the author.