Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2681/2015 * , **

Communication submitted by:Y.A.A. and F.H.M. (represented by the Danish Refugee Council)

Alleged victim s :The authors

State party:Denmark

Date of communication:11 November 2015 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 18 November 2015 (not issued in document form)

Date of adoption of Views:10 March 2017

Subject matter:Degrading and inhuman treatment, deportation to Italy

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

Article of the Covenant:7

1.1The authors of the communication are Y.A.A., a man born on 3 December 1983, and F.H.M, a woman born on 1 January 1980, both Somali nationals. The authors submit the communication on their own behalf and on behalf of their four minor children: A was born in 2009 in Italy; S was born in 2011 in Italy; SI was born in 2013 in Denmark; and AM was born in 2014 in Denmark. The authors are Somali nationals seeking asylum in Denmark and were scheduled, at the time of the submission of the communication, to be transferred from Denmark to Italy within the Dublin II Regulation. The authors claim that their deportation to Italy would put them and their children at a risk of inhuman and degrading treatment in violation of article 7 of the Covenant. The authors are represented by the Danish Refugee Council. The first Optional Protocol to the Covenant entered into force for Denmark on 23 March 1976.

1.2On 18 November 2015, pursuant to rule 92 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested the State party to refrain from deporting the authors to Italy while their case was under consideration by the Committee.

1.3On 13 July 2016, the Committee, acting through the Special Rapporteur, denied the State party’s request to lift the interim measures.

The facts as submitted by the authors

2.1The authors originate from Mogadishu. F.H.M. originates from the Reer Barawe minority clan and Y.A.A. from the Asraf clan. Both are Muslim. They have four children: the oldest two were born in Italy and the youngest two were born in Denmark.

2.2The authors fled Somalia together in 2008. F.H.M. fled Somalia after having being subjected to serious harassment owing to her belonging to a minority clan. She claims that her family had been contacted and harassed by clan militia, police and government forces. Y.A.A. fled Somalia owing to a conflict with the Somali authorities and Ethiopian military. He had worked for a Somali television station and, on one occasion, had edited video recordings and pictures of Ethiopian soldiers who had been killed, which were to be broadcasted on the news. Subsequently, he was threatened by an unknown person on several occasions that he would be killed or imprisoned, and accused of being responsible for the broadcast. The authors also fear that their daughters will be subjected to female genital mutilation upon return.

2.3The authors arrived in Italy in October 2008. Upon arrival in Lampedusa, the authors were accommodated in asylum reception facilities in Bari for a few months. The authors were granted subsidiary protection in January 2009. Their residence permit, which expired on 25 March 2013, has not been renewed, since by that time the authors were residing in Denmark.

2.4After being granted the residence permit, the authors were ordered to leave the reception facilities in Bari and hand in their asylum identification cards, which had given them access to food in the reception facilities. They were not given any assistance or advice on how to settle or where to go in Italy on a temporary or permanent basis and were advised to leave for other European countries. Facing homelessness, the authors travelled to Finland early in 2009. After four months, the Finnish authorities returned them to Rome. Upon arrival at the airport, they were given no assistance or guidance from the Italian authorities.

2.5Facing homelessness once again, they took advice from other Somali refugees and went to Turin to live in an abandoned clinic occupied by homeless refugees and asylum seekers. The conditions were very poor and lacked basic facilities. There was no water, electricity or heat, and the sanitary facilities were poor. Many of the occupants were often under the influence of alcohol and drugs, and the authors felt unsafe, especially during F.H.M.’s pregnancy in 2009.

2.6During F.H.M.’s first pregnancy, in 2009, she had no access to health care. When she went into labour, the hospital rejected her because the authors had no official address — as they were living at the time in the abandoned building in Turin — and therefore no health cards. A woman from a local communist party who had been assisting refugees helped them and arranged with the hospital that F.H.M. could be admitted during delivery. After the birth of their eldest son, the authors once again faced homelessness and sought shelter in abandoned houses, again in Turin. Owing to a lack of basic facilities and the apparent use of drugs in the house, the authors found it difficult and unsafe to stay there with a toddler.

2.7When F.H.M. got pregnant again, in 2010, the authors were assisted by the same woman from the communist party, who arranged for them to stay in a room in a student dormitory in Turin. The authors lived in the dormitory for several months. F.H.M. gave birth to their second child in a hospital during that period. Access to the hospital was arranged once again by the woman from the communist party. Shortly after the birth of the second child, the authors were asked to leave the dormitory as it was not intended for families with children. Later, the authors spent nights in churches and were asked during the day to leave.

2.8During their three years in Turin, the authors were not offered access to housing, social benefits or an integration programme by the Italian authorities. The authors received help from the local branch of the communist party and food from churches. Y.A.A. searched for employment, without success. At his own initiative, he attended free language courses and courses on communication at an institute in Turin for six months.

2.9Faced with homelessness, and with no access to an integration programme or employment, the authors with their two children travelled to Sweden, where they applied for asylum in April 2012. Their applications were rejected as they had been granted a residence permit by the Italian authorities. When the Swedish authorities planned to deport them to Italy, the authors travelled to Denmark, where they applied for asylum on 28 August 2012. Upon arrival in Denmark, the authors’ residence permits in Italy were still valid. F.H.M. gave birth to the authors’ third child in February 2013 in Denmark.

2.10On 4 November 2013, the Danish Immigration Service rejected their application for asylum. The case was sent to the Refugees Appeals Board, which, on 25 February 2014, upheld the decision by the Immigration Service, stating that F.H.M., and consequently Y.A.A., were in need of subsidiary protection owing to the risk of prosecution in Somalia, but that the authors could be returned to Italy in accordance with the principle of first country of asylum. In its decision, the Board stated that, although the residence permit of the authors was no longer valid, it expected them to be able to enter and stay legally in Italy, while applying for renewal of their expired residence permit.

2.11As the decision of the Refugees Appeals Board was final, the authors were ordered to leave Denmark. On 8 April 2014, the Danish National Police attempted to deport the authors and their three children to Italy. The authors arrived at the airport in Rome together with six Danish police officers. The Danish police contacted the Italian authorities at the airport and presented the names of the authors and their children and a copy of the Italian confirmation of the subsidiary protection that had been granted to the authors in Italy. After a while, the Italian authorities informed the Danish police that they had not been informed of the authors’ arrival and that they would not readily accept their entry. The Italian police informed the Danish police that Italy found it strange that Denmark had not been in contact with Italy regarding the case since a request was made in June 2013 under the Dublin II Regulation. Furthermore, the subsidiary protection had expired and had not been renewed. The authors and their children were returned to Denmark the same day.

2.12Subsequently, the Danish police made no other attempts to deport the authors to Italy. Upon return to Denmark, Y.A.A. contacted the Danish Immigration Service for help, and his request was forwarded to the Refugees Appeals Board as a request to reopen the case. On 2 July 2014, the Board requested the police to comment on whether it regarded the deportation of the authors to Italy as possible. On September 2014, F.H.M. gave birth to the authors’ fourth child, in Denmark.

2.13On 24 March 2015, the Danish Refugee Council requested the Refugees Appeals Board to reopen the case. The Council made reference to the fact that the authors had been denied entry in Italy and that the Danish police had not made any efforts to deport the authors in the previous year.

2.14On 14 April 2015, the Danish police informed the Refugees Appeals Board that they found it difficult to imagine that a deportation to Italy would become possible. On 1 June 2015, the Board once again requested the Danish police to comment on whether or not deportation of the authors would be possible or should be regarded as pointless. On 8 June 2015, the police requested the Ministry of Justice to assist it in its reply to the Board. On 30 June 2015, the police informed the Board that, on 11 June 2015, the Ministry of Justice had sent a request for consultation to the Italian authorities regarding the issue of return of foreign nationals to Italy and the possibility of renewing expired residence permits in Italy. On 21 July 2015, the Board decided not to reopen the case and made reference to the fact that the Ministry was at that time in contact with the Italian authorities. The decision of the Board was final and could not be appealed before a court.

2.15Subsequently, the Refugee Appeals Board has informed the Danish Refugee Council by telephone that they had received a reply from the Italian authorities through the Danish police, dated 8 August 2015, and that the Italian authorities would now accept the entry of the family.

The complaint

3.1The authors allege that their deportation to Italy will put them and their four children at risk of inhuman and degrading treatment contrary to the best interest of the child, in violation of article 7 of the Covenant, as they would face homelessness, destitution and limited access to health care. The authors further indicate that they must be regarded as extremely vulnerable as they have four children, the youngest of whom is 2 years old.

3.2The authors submit that, after they were granted subsidiary protection in January 2009, they were unable to find shelter, work or any durable humanitarian solution in Italy for themselves and their children. They had great difficulties in finding medical care during pregnancy and birth. Facing homelessness, they lived in abandoned buildings with other refugees and asylum seekers, where there were no sanitary facilities and where alcohol was consumed openly.

3.3The authors further allege that the reception conditions in Italy for refugees and asylum seekers with valid or expired residence permits do not comply with international obligations of protection. Furthermore, they submit that international protection seekers returning to Italy who previously had been granted a form of protection and had benefited from the reception system when they lived there were no longer entitled to accommodation in reception facilities in Italy. They state that their experience indicates systemic failures regarding basic support for asylum seekers and refugees in Italy, especially members of vulnerable groups. They indicate that asylum seekers in Italy experience severe difficulties in gaining access to health services.

3.4The authors submit that their circumstances are in contrast with those in the case of Mohammed Hussein and others v. the Netherlands and Italy, because they have already experienced being transferred from Finland to Italy, at which time they neither received — upon arrival or later — any assistance from the Italian authorities in securing the basic needs of the family, namely, shelter, food or medical assistance at birth, nor given any assistance in finding work or housing or to help them integrate into Italian society.

3.5The authors state that the decision by the European Court of Human Rights in Tarakhel v. Switzerland is relevant to the present case, as it refers to the living conditions and difficulties in finding shelter for asylum seekers and beneficiaries of international protection in Italy. The authors note that, in its decision, the Court required Switzerland to obtain assurances from its Italian counterparts that the applicants — a family — would be received in facilities and conditions adapted to the age of the children; and that, if such assurances were not made, Switzerland would be violating article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms by transferring them there. The authors argue that, in the light of that finding, the harsh conditions faced by asylum seekers and beneficiaries of international protection returning to Italy would also fall within the scope of article 3 of the Convention and article 7 of the Covenant. They therefore reiterate that their deportation to Italy would amount to a violation of article 7 of the Covenant. They further submit that the decision in Tarakhel v. Switzerland indicates that individual guarantees, such as ensuring that children who are returned do not face destitution or harsh accommodation conditions, are necessary.

State party’s observations

4.1On 18 May 2016, the State party submitted its observations on the admissibility and merits of the communication. The State party describes the structure, composition and functioning of the Refugees Appeals Board, as well as the legislation applying to cases related to the Dublin Regulation.

4.2With regard to the admissibility and merits of the communication, the State party argues that the authors have failed to establish a prima facie case for the purpose of admissibility under article 7 of the Covenant. In particular, it has not been established that there are substantial grounds for believing that the authors and their children will be in danger of being subjected to torture or to cruel, inhuman or degrading treatment or punishment in Italy. The communication is therefore manifestly unfounded and should be declared inadmissible. It follows from the Committee’s jurisprudence that States parties are under an obligation not to extradite, deport, expel or otherwise remove a person from their territory where the necessary and foreseeable consequence of the deportation would be a real risk of irreparable harm, such as that contemplated by article 7 of the Covenant, whether in the country to which removal is to be effected or in any country to which the person may subsequently be removed. 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.

4.3The State party notes that the authors have not provided any essential new information or views on their circumstances beyond the information already relied upon during the asylum proceedings, and the Refugees Appeals Board had already considered that information in its decision of 25 February 2014. The State party submits that the Committee cannot be an appellate body that reassesses the factual circumstances advocated by the authors in their asylum application before the Danish authorities and it must give considerable weight to the findings of fact made by the Refugees Appeals Board, which is better placed to assess the factual circumstances of the authors’ case. Furthermore, the State party makes reference to the Committee’s jurisprudence, according to which “it is generally for the organs of State parties to examine the facts and evidence of the case, unless it can be established that such an assessment was arbitrary or amounted to a manifest error or denial of justice”.

4.4The State party further submits that the Refugees Appeals Board found that the authors had previously been granted subsidiary protection in Italy and could return to Italy and stay there lawfully with their children; therefore, Italy is considered the “country of first asylum”, which justifies the refusal by the Danish authorities to grant them asylum, in accordance with section 7 (3) of the Aliens Act. The State party further submits that the Board requires as an absolute minimum that the asylum seeker or refugee is protected against refoulement from the country of first asylum. It also must be possible for him/her to enter lawfully and to take up lawful residence in the country of first asylum, and his/her personal integrity and safety must be protected. This concept of protection also includes a certain social and economic element since asylum seekers must be treated in accordance with basic human standards. However, it cannot be required that the relevant asylum seekers will have completely the same social living standards as the country’s own nationals. The core of the protection concept is that the persons must enjoy personal safety both when they enter and when they stay in the country of first asylum. Moreover, the State party notes that Italy is bound by the Convention for the Protection of Human Rights and Fundamental Freedoms and the Covenant.

4.5Furthermore, the State party observes that F.H.M.’s alleged lack of access to health care and medical treatment in Italy is based solely on the authors’ unsubstantiated information. The State party indicates that asylum seekers and beneficiaries of international protection enjoy the same right to medical treatment as Italian nationals; they must enrol in the national health service in Italy and are entitled to benefit from free health-care services on the basis of a self-declaration of destitution to be presented to local health board.

4.6The State party notes that the authors’ claims that they risk homelessness and will not receive the necessary assistance for the Italian authorities if deported to Italy appear unsubstantiated, and the information is not consistent with the general background information available on living conditions for asylum seekers and refugees in Italy. The State party observes that, according to their statements, the authors were offered a room in a hall of residence for some months, and Y.A.A. attended free language classes and studied at the University of Turin for six months.

4.7The State party further refers to the judgment of the European Court of Human Rights in Mohammed Hussein and Others v. the Netherlands and Italy, and states that it is applicable to the present communication. In that ruling, the Court stated that the assessment of a possible violation of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms must be rigorous and should analyse the conditions in the receiving country against the standards established by that provision of the Convention. In particular, the Court indicated that “in the absence of exceptionally compelling humanitarian grounds against removal, the fact that the applicant’s material and social living conditions would be significantly reduced if he or she were to be removed from the contracting State is not sufficient in itself to give rise to breach of article 3”. Furthermore, the State party considers that it cannot be inferred from the judgment of the Court in Tarakhel v. Switzerland that individual guarantees must be obtained from Italian authorities in the case at hand, as the authors have already been granted subsidiary protection in Italy, while in Tarakhel v. Switzerland the authors’ application for asylum in Italy was still pending when the case was reviewed by the Court.

4.8The State party also submits that the authors’ circumstances are in contrast with those in the Views adopted by the Committee in Warda Osman Jasin et . al. v. Denmark. The State party notes that, in the present case, the authors had been already in possession of residence permits for Italy, which expired on 25 March 2013, when they applied for asylum in Denmark on 28 August 2012. The State party further submits that the fact that the authors left Italy and placed themselves in a situation whereby their residence permits expired does not mean that they can be considered asylum seekers today.

Author’s comments on the State party’s observations

5.1On 4 July 2016, the authors submitted their comments on the State party’s observations. The authors submit that they have adequately explained the reasons for which they fear that their deportation to Italy would result in a breach of article 7 of the Covenant and consider that their claims in this regard have been duly substantiated. The authors further submit that the Refugees Appeals Board assessment falls short of the requirements of an individualized assessment of the risk that they would face if deported to Italy. The authors note that, during their stay in Italy, when they had residence permits, they lived in an abandoned clinic, which lacked the most basic facilities, such as water and electricity. Only for a few months during F.H.M.’s second pregnancy were the family offered a room in a student dormitory. When she first went into labour, she was rejected by a hospital, and only with the intervention of an influential local person was she accepted into the hospital to give birth. During her pregnancy, she had no access to health care. The authors lived off food provided by the church. For three years, the authors were not offered access to housing, social benefits or integration programmes from the Italian authorities, although Y.A.A. did attend language and communication courses for a while, and they were faced with intolerable living conditions during almost their entire time in Italy.

5.2The authors further indicate that asylum seekers and beneficiaries of international protection in Italy often face the same severe difficulties in finding basic shelter, access to health-care facilities and food. The authors quote a report by the United States of America Department of State on Italy, which states:

Authorities set up temporary centers to house mixed-migrant populations, including refugees and asylum seekers but could not keep pace with the high number of arrivals … Non-governmental organizations reported thousands of legal and irregular foreigners, including migrants and refugees, lived in abandoned buildings in Rome and other major cities and had limited access to public services. The press reported limited health care, inadequate and over-crowded facilities, and a lack of access to legal counselling and basic education. Representatives of the Office of the United Nations High Commissioner for Refugees, the International Organization for Migration, and other humanitarian organizations denounced inhuman living conditions, in particular overcrowding, in reception centers.

The authors also refer to a report by the organization Médecins Sans Frontières that states that:

Although according to Italian legislation asylum seekers and refugees are entitled to the registration with the National Health Service and to medical assistance in the same way as Italian citizens, the access to this right is seriously limited by the conditions of social marginalization that this population experiences in our country, in particular inside informal settlements … The renewal of the permit to stay, especially for humanitarian reasons, is made difficult by the police stations, which request municipal residence registration or domicile, even though no legal norm dictates it. According to police, domicile must be demonstrated through a renting contract, or at least a letter of hospitality by the owner or the tenant of the property. Lacking one and the other, and if the police refuses a letter of fictitious domicile by supporting organizations, migrants can only resort to “buy” a fake renting contract or another domicile document, or renew their permit in less restrictive police stations, sometimes in provinces or regions other than the actual living area: in this way access to general practitioners and paediatrician in the areas where refugees actually live is prevented as registration to National Health Service depends on the domicile listed in the permit to stay.

5.3The authors also refer to the Committee’s Views on Warda Osman Jasin et . al. v. Denmark, in which the Committee emphasized the need to give sufficient weight to the real and personal risk a person might face if removed. The authors indicate that the State party has failed to obtain specific assurances from Italy vis-à-vis the following: (a) acceptance of the authors’ return; (b) renewal of the authors’ residence permits; (c) guarantee against deportation of the authors to Somalia; and (d) conditions adapted to the authors’ family and children. The authors submit that this requires an individualized assessment of the risk faced by the person, rather than reliance on general reports and on the assumption that, having been granted subsidiary protection in the past, he or she would in principle be entitled to work and receive social benefits. They further claim that the Refugees Appeals Board failed to make a sufficiently individualized assessment of the risk that the authors will face in Italy. Moreover, the application of an unreasonably high threshold for substantial grounds for establishing that a real risk of irreparable harm exists renders the Board’s decision both unreasonable and arbitrary. Furthermore, the authors claim that they already experienced intolerable living conditions in Italy while they held a valid residence permit. The available background information substantiates the existence of intolerable living conditions for both refugees and asylum seekers and the lack of support from the Italian authorities, and gives substantial reasons to believe there is a real risk that the authors will again face such conditions if they are deported to Italy.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claims contained in a communication, the Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol.

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

6.3The Committee notes the authors’ claim that they have exhausted all effective domestic remedies available to them. In the absence of any contrary information by the State party in that connection, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

6.4The Committee notes the State party’s challenge to the admissibility of the communication on the grounds that the authors’ claim under article 7 of the Covenant is unsubstantiated. However, the Committee considers that, in the light of its past jurisprudence in cases pertaining to the Dublin II Regulation, the real difficulties encountered by the authors when they had previously lived in Italy, the very young age of their four children and the information before the Committee on the limited nature of the assurances issued by the authorities in Italy, it cannot regard the communication as clearly lacking in substance. Accordingly, the Committee declares the communication admissible insofar as it raises issues under article 7 of the Covenant, and proceeds to its consideration on the merits.

Consideration of the merits

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

7.2The Committee notes the authors’ claim that deporting them and their four children to Italy, based on the Dublin Regulation principle of first country of asylum, would expose them to a risk of irreparable harm in violation of article 7 of the Covenant. The authors base their arguments, inter alia, on the actual treatment they received after they had been granted a residence permit in Italy and on the general conditions of reception for asylum seekers and beneficiaries of international protect in Italy, as mentioned in various reports. The Committee notes the authors’ argument they would face homelessness, destitution and limited access to health care, as demonstrated by their experience after they had been granted subsidiary protection in January 2009. The Committee further notes the authors’ submission that, since they had already benefitted from the reception system when they first arrived in Italy, and as they had already been granted a form of protection, they would have no access to accommodation in the reception facilities.

7.3The Committee recalls paragraph 12 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. The Committee further recalls its jurisprudence that considerable weight should be given to the assessment conducted by the State party and that it is generally for the organs of the States parties to the Covenant to review and evaluate facts and evidence in order to determine whether such risk exists, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice.

7.4The Committee notes that, according to the authors, after they received their subsidiary protection, they faced homelessness and lived in an abandoned building with other refugees without adequate sanitary facilities and where alcohol was consumed openly, and were not able to find work. The Committee also notes the authors’ submissions that F.H.M. had serious difficulties in gaining access to health care during her pregnancy and the birth of their two children in Italy and that, when the author went into labour, the hospital rejected her since the authors did not have a health card because they lacked an official address. She was only able to be admitted to the hospital after an arrangement with the hospital was made by a third person, who was involved in assisting refugees. The Committee further notes that, after the authors went to Finland and were returned to Italy, they were not offered access to housing, medical care, social benefits or an integration programme by the Italian authorities. The Committee notes that, in 2012, the authors went to Sweden and then to Denmark, where they requested asylum in August 2012.

7.5The Committee takes note of the various reports submitted by the authors. Furthermore, it notes that recent reports have highlighted the lack of available places in the reception facilities in Italy for asylum seekers and returnees under the Dublin II Regulation. The Committee notes in particular the authors’ submission that returnees, like them, who had already been granted a form of protection and benefited from the reception facilities when they were in Italy, are not entitled to accommodation in the Government reception centres for asylum seekers.

7.6The Committee takes note of the finding by the Refugee Appeals Board that Italy should be considered the “country of first asylum” in the present case and the position of the State party that the country of first asylum is obliged to provide asylum seekers with certain social and economic elements in accordance with basic human standards, although it is not required that such persons have exactly the same social and living standards as nationals of the country. The Committee further notes the reference made by the State party to a decision of the European Court of Human Rights according to which the fact that the applicants’ material and social living conditions would be significantly reduced if they were to be removed from the contracting State — Denmark — is not sufficient in itself to give rise to breach of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

7.7The Committee recalls that States parties should, when reviewing challenges to decisions to remove individuals from their territory, give sufficient weight to the real and personal risk such individuals might face if deported. In particular, the evaluation of whether or not the removed individuals are likely to be exposed to conditions constituting cruel, inhuman or degrading treatment in violation of article 7 of the Covenant must be based not only on assessment of the general conditions in the receiving country, but also on the individual circumstances of the persons in question. These circumstances include vulnerability-increasing factors relating to such persons, which may transform a general situation that is tolerable for most removed individuals to intolerable for some individuals. They should also include, in cases pertaining to the Dublin II Regulation, indications of the past experience of the removed individuals in the country of first asylum, which may underscore the special risks they are likely to be facing and may render their return to the country of first asylum a particularly traumatic experience for them.

7.8In the present case, the Committee considers that the State party’s position, as reflected in the decisions of Danish Immigration Service and Refugees Appeals Board, did not adequately take into account the particular situation of vulnerability of the authors and their family and the information they provided about their own personal experience that, despite being granted a residence permit in Italy, they faced intolerable living conditions there. In that connection, the Committee notes that the State party does not explain how, in case of a return to Italy, the residence permits would protect them and their four children from the severe same hardship and destitution, which the authors had already experienced in Italy, if they and their children were to be returned to that country.

7.9The Committee recalls that States parties should give sufficient weight to the real and personal risk a person might face if deported and considers that it was incumbent upon the State party to undertake an individualized assessment of the risk that the authors and their four very young children would face in Italy, rather than rely on general reports, which do not all support the State party’s assessment, and on the assumption that, as the authors had benefited from subsidiary protection in the past, they would still, in principle, be entitled to housing, work and receive social benefits in Italy. The Committee considers that the State party failed to take into due consideration the special vulnerability of the authors and their children. Notwithstanding their formal entitlement to subsidiary protection in Italy, they faced homelessness and they lived in an abandoned building, were not able to find work, F.H.M. had serious difficulties in gaining access to health care during her pregnancy and birth of their two children in Italy, and, after the authors went to Finland and were returned to Italy, they were not offered access to housing, medical care, social benefits or an integration programme by the Italian authorities. The Committee considers that, although the State party claims that it has obtained the consent of the Italian authorities to admit the authors into Italy following the failed attempt to deport the authors to Italy on 8 April 2014, the State party has failed to seek proper assurances from the Italian authorities that the authors and their four children will be received in conditions compatible with their status as international protection seekers entitled to protection and the guarantees under article 7 of the Covenant, which include undertakings by Italy: (a) to renew the authors’ and their children residence permits so that they would not be deported from Italy; (b) to issue resident permits to the authors’ two youngest children, who were born in Denmark; and (c) to receive the authors and their children in conditions adapted to the children’s age and the family’s situation of vulnerability, which would enable them to remain in Italy and to enjoy there international protection de facto. Consequently, the Committee considers that, in the light of the particular circumstance of the case and given the shortcoming of the decisions of the Danish authorities, the removal of the authors and their four children to Italy, without the aforementioned assurances, would amount to a violation of article 7 of the Covenant.

8.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the deportation of the authors and their four children to Italy, without proper assurances, would violate their rights under article 7 of the International Covenant on Civil and Political Rights.

9.In accordance with article 2 (1) of the Covenant, which establishes that States parties undertake to respect and to ensure to all individuals within their territory and subject to their jurisdiction the rights recognized in the Covenant, the State party is under an obligation to proceed to a review of the claim of the authors, taking into account the State party’s obligations under the Covenant, the Committee’s present Views and the need to obtain proper assurances from Italy, as set out in paragraph 7.9 above. The State party is also requested to refrain from expelling the authors and their four children to Italy while their request for asylum is being reconsidered.

10.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the present Views. The State party is also requested to publish the present Views and to have them widely disseminated in its official language.