Committee on the Rights of Persons with Disabilities

Views adopted by the Committee under article 5 of the Optional Protocol, concerning communication No. 39/2017 * , **

C ommunication submitted by :Iuliia Domina and Max Bendtsen (represented by counsel, Eddie Kawaja)

Alleged victim s :The authors

State party:Denmark

Date of communication:6 January 2017 (initial submission)

Document references:Decision taken pursuant to rules 64 and 70 of the Committee’s rules of procedure, transmitted to the State party on 9 January 2015 (not issued in document form)

Date of adoption of Views :31 August 2018

Subject matter:Family reunification

Procedural issue: Substantiation of claims

Substantive issues:Respect for home and the family; discrimination based on disability

Articles of the Convention:5 and 23

Article of the Optional Protocol:2 (e)

1.1The authors of the communication are Iuliia Domina, a national of Ukraine, and Max Bendtsen, a national of Denmark, both born in 1989. The authors are a married couple and they have a son born in 2015. Mr. Bendtsen has brain damage resulting from a car accident in 2009. The authors’ application for family reunification in the State party and a residence permit for Ms. Domina has been denied by the domestic authorities. The authors claim that the rejection of their application for family reunification amounts to a violation of their rights under articles 5 and 23 of the Convention. The Optional Protocol entered into force for the State party on 23 October 2014. The authors are represented by counsel.

1.2On 9 January 2017, the Special Rapporteur on new communications and interim measures, acting on behalf of the Committee, issued a request for interim measures under article 4 of the Optional Protocol, requesting the State party not to deport Ms. Domina to Ukraine while the authors’ case was under consideration by the Committee.On 11 January 2017, the Immigration Appeals Board suspended the time limit for Ms. Domina’s departure from the State party until further notice.

A.Summary of the information and arguments submitted by the parties

The facts as submitted by the authors

2.1 On 30 May 2013, the authors applied for family reunification and a residence permit for Ms. Domina in the State party based on their marriage, which they had celebrated on 13 April 2013. Documentation and information about Mr. Bendtsen’s physical and mental health was included in the application submitted to the immigration authorities. The information documented that in 2009 he had been involved in a severe car accident, which had left him with permanent brain damage, and that he had, on that basis, received social benefits from May 2009, as he could not support himself through employment. The authors’ application was rejected on 29 August 2013 by the Danish Immigration Service on the basis that Mr. Bendtsen had received social benefits within a period of three years prior to the date on which family reunification could be granted. Reference was made by the authorities to section 9 (5) of the Aliens (Consolidation) Act, according to which a residence permit based on family reunification cannot be granted if the applicant’s spouse has received social benefits within a period of three years prior to the application. The decision was upheld by the Immigration Appeals Board on 3 December 2014.

2.2On 22 December 2015, the Eastern High Court found that the decision of the Immigration Appeals Board had violated the Convention, noting that the requirement that the spouse living in Denmark was able to support himself or herself financially could not be upheld if under the Convention such a requirement should be waived. It found that this would be the case if the person could not fulfil the financial requirement because of a disability. It further noted that Mr. Bendtsen had been offered early retirement because of his disability, and that he would have been exempt from the requirement of being able to support himself financially if he had accepted that offer. The Court found, on the basis of an assessment of the circumstances regarding Mr. Bendtsen’s health, that there was no prospect that he could support himself financially. It therefore concluded that Mr. Bendtsen should not be requested to fulfil the requirement of being able to support himself financially because, on the basis of his disability, that requirement prevented him from enjoying his right to family life on equal terms with other persons.

2.3On appeal, in a decision of 22 December 2016, the Supreme Court overturned the decision of the Eastern High Court, noting that Mr. Bendtsen had at one stage participated in a programme to assess his options with regard to employment and education, and had the option to be granted special flexible employment. Based on the option to be granted special flexible employment, the Supreme Court concluded that Mr. Bendtsen had a reasonable chance to fulfil the requirement of being able to support himself financially. It also found that he was in a position comparable to persons without disabilities who had received social benefits, and that he had therefore not been subject to discrimination in violation of the Convention, or of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights).

The complaint

3.1The authors note that under paragraph 9 (5) of the Alien Act, the granting of a residence permit to an applicant married to a Danish citizen is conditional upon the spouse living in Denmark not having received social benefits within a period of three years prior to the application. The authors claim that this policy violates their rights under articles 5 and 23 of the Convention. They argue that the approach taken by the Danish authorities applies an incorrect definition of discrimination in that it neither recognizes the duty to provide reasonable accommodation nor ensures protection against indirect discrimination on the grounds of disability. They argue that the Supreme Court recognized that Mr. Bendtsen received social benefits due to his disability, but it did not bear in mind that persons with disabilities were in a significantly different situation than others in terms of access to the labour market and that Mr. Bendtsen was therefore placed at an unreasonable disadvantage on the basis of his disability. The authors argue that the requirement of being able to support oneself financially in order to be granted family reunification constitutes a barrier for persons with disabilities to enjoy the right to family life on an equal basis with persons without disability.

3.2The authors further note that their young child is fully dependent on Ms. Domina, because Mr. Bendtsen, on account of his disability, was unable to take care of him without assistance. The deportation of Ms. Domina to Ukraine would therefore irreparably harm the family life of the authors and their child.

State party’s observations on admissibility and the merits

4.1On 7 July 2017, the State party submitted its observations on the admissibility and the merits of the communication. It considers that the communication should be declared inadmissible under article 2 (e) of the Optional Protocol, for failure to substantiate the claims for purposes of admissibility. Alternatively, should the Committee find the communication to be admissible, the State party submits that the complaint is without merit.

4.2The State party provides information on the organization and jurisdiction of the Immigration Appeals Board, as well as on applicable domestic law. The Immigration Appeals Board is an independent, collegial, quasi-judicial administrative body. It considers appeals of first-instance decisions relating to immigration, including decisions made by the Danish Immigration Service relating to family reunification, visas, permanent residence and administrative expulsion or refusal of entry, and appeals of first-instance decisions made by the Danish Agency for International Recruitment and Integration relating, inter alia, to residence on the basis of occupation and employment, studies or an au pair position. Section 9 (1) (i) (a) of the Aliens Act provides that, upon application, a residence permit may be issued to an alien over the age of 24 who cohabits at a shared residence, either in marriage or in regular cohabitation of prolonged duration, with a person permanently resident in Denmark over the age of 24 who is a Danish national. Under section 9 (5) of the Aliens Act, a residence permit may be granted only if the person living in Denmark, who is obliged to maintain the applicant, has not received any assistance under the Active Social Policy Act or the Integration Act for the last three years before the decision on residence is made. However, assistance in the form of small amounts of isolated benefits not directly related to maintenance, or benefits that are comparable to wages, salaries or pension payments or replace such income, are not included in the list of financial assistance. It is possible to disregard the condition that the person living in Denmark must not have received assistance under the Active Social Policy Act or the Integration Act if exceptional reasons conclusively make it appropriate, including regard for family unity. This would be the case only if reunification must be granted under the State party’s international obligations.

4.3The State party notes that the conditions for acquiring permanent residence were modified by Act No. 572 of 31 May 2010 amending the Aliens Act. In the general notes on the related bill (Bill No. L 188 of 26 March 2010) it is stated that, as provided by the Convention, aliens who cannot meet one or more of the conditions for acquiring permanent residence due to disability will not face such requirements, that an exemption will be granted only from the conditions that the alien cannot meet because of his or her disability, and that other requirements not related to the alien’s disability must be satisfied just as they have to be satisfied by other aliens. The State party notes that other examples of exceptional reasons are if the spouses are otherwise required, in order to live together as a family, to live in a country which the person living in Denmark cannot enter and in which he or she cannot take up residence together with the applicant. Exceptional reasons may furthermore exist if the person living in Denmark has custody of or the right of access to minor children living in Denmark.

4.4The State party also provides information on the domestic proceedings. It notes that Ms. Domina held a residence permit in Denmark from 21 November 2011 to 2 July 2013 as an agricultural trainee under the Aliens Act. The authors married on 13 April 2013. Ms. Domina applied for family reunification in Denmark on 30 May 2013 based on her marriage to Mr. Bendtsen.On 29 August 2013, the Danish Immigration Service refused Ms. Domina’s application for residence pursuant to section 9 (5) of the Aliens Act because Mr. Bendtsen had received assistance under section 25 of the Active Social Policy Act from 14 May 2009 until the date of the decision of the Danish Immigration Service, and because no exceptional reasons made it appropriate to disregard the requirement of self-support under section 9 (5) of the Aliens Act. On 3 December 2014, the Immigration Appeals Board upheld the decision made by the Danish Immigration Service to refuse Ms. Domina’s application for residence.The Board found that the condition under section 9 (5) of the Aliens Act had not been satisfied as Mr. Bendtsen had received assistance under the Active Social Policy Act within the previous three years, for which reason Ms. Domina could not be granted residence under section 9 (1) (i) of the Aliens Act. The Board further found that no information had been provided on personal circumstances, including health issues, to justify the conclusion that the authors could not be required to enter and take up residence in Ukraine and enjoy family life together there. The Board found that the fact that Mr. Bendtsen had a disability could not independently justify an exemption from the rules on reunification. The Board therefore found that the authors had not been discriminated against, either directly or indirectly, as compared with persons without disabilities applying for reunification who had received maintenance benefits under the Active Social Policy Act.The Board found that the claim that Mr. Bendtsen was unable to satisfy the conditions of section 9 (5) of the Aliens Act had not been substantiated, for which reason the Board concluded that there could be no exemption from the condition in section 9 (5) of the Aliens Act with reference to Mr. Bendtsen’s health.

4.5On 10 December 2014, the authors instituted legal proceedings against the decision of the Immigration Appeals Board before Roskilde District Court. The District Court referred the case to the Eastern High Court on 11 February 2015. On 22 December 2015, the High Court quashed the decision made by the Immigration Appeals Board and remitted the case to the Immigration Appeals Board for reconsideration. On 19 January 2016, the Immigration Appeals Board appealed the judgment of the High Court to the Supreme Court.

4.6By its judgment of 22 December 2016, the Supreme Court found for the Immigration Appeals Board and set aside the High Court judgment.The Supreme Court noted that at the time of the decision made by the Immigration Appeals Board, Mr. Bendtsen had been receiving social security benefits under section 11 of the Active Social Policy Act, pursuant to which individuals were granted assistance, whether or not they had a disability, if they had experienced changes in their circumstances, such as illness, unemployment or cessation of cohabitation, and they could not support themselves as a result of those changes. According to the travaux préparatoiresof the Aliens Act, the condition in section 9 (5) of the Aliens Act must be disregarded if necessary under the State party’s international obligations. In that connection, the Supreme Court stated that under article 14 of the European Convention on Human Rights, differential treatment for reasons such as disability was prohibited when the differential treatment was attributable to a circumstance falling within the scope of the other provisions of that Convention, including article 8 on the right to respect for family life. The question to be determined was therefore whether the situation of Mr. Bendtsen, at the date of the decision made by the Immigration Appeals Board, was comparable to the situation of persons without a disability who had received social security benefits over the previous three years, or to the situation of persons without disability who had not received any social security benefits over the previous three years.Under section 70 of the act on active employment measures, job centres offered jobs under the wage subsidy programme to individuals younger than the standard retirement age whose capacity for work was permanently reduced and who did not receive disability pension and were unable to find or hold on to employment on usual terms. Wage subsidies did not fall within the scope of section 9 (5) of the Aliens Act and therefore did not disqualify the recipient from being granted family reunification. The same applied to disability pension under the Social Pensions Act. The Supreme Court further noted that it must be deemed that the travaux préparatoires included an assumption that that requirement must be disregarded if a person was unable to satisfy the requirement of section 9 (5) of the Aliens Act due to his or her disability.The Court found that, consequently, persons disqualified from family reunification for a period of time due to the provisions of section 9 (5) were assumed to have the possibility of finding work irrespective of whether they had a disability, including a job under the wage subsidy programme, and accordingly meet the condition of not having received any social security benefits for the previous three years. At the time of the decision made by the Immigration Appeals Board, Mr. Bendtsen had been undergoing evaluation and clinical assessment to determine his future potential for finding employment and was undergoing training. It found that even though it was probably a consequence of Mr. Bendtsen’s disability that he could not find employment on usual terms, he had a reasonable prospect of satisfying the requirement of self-support under section 9 (5) of the Aliens Act because of his possibility of finding a job under the wage subsidy programme. The Court therefore found that, at the time of the decision made by the Immigration Appeals Board, Mr. Bendtsen had been in a situation comparable to that of persons without a disability who had received social security benefits within the previous three years and that he had therefore not been subjected to differential treatment, in contravention of the Convention or the European Convention on Human Rights.

4.7The State party notes the authors’ claim that the decision made by the Immigration Appeals Board on 3 December 2014 to refuse Ms. Domina’s application for residence violated articles 5 and 23 of the Convention. Itsubmits that the authors have failed to establish a prima facie case for the purpose of admissibility and that the communication should therefore be considered inadmissible. It refers in this respect to the fact that the authors’ claims have been heard by the Immigration Appeals Board, the High Court and the Supreme Court. It argues that the Supreme Court expressly considered the fact that Mr. Bendtsen was a person with a disability, but found that he was in a situation comparable to that of persons without a disability who had received social security benefits within the previous three years. In that connection, the Supreme Court emphasized that Mr. Bendtsen had undergone evaluation and clinical assessment, and because of his enrolment in a wage subsidy programme, he had reasonable potential for satisfying the requirement of self-support.

4.8As concerns the merits of the authors’ claims, the State party submits that the authors have not sufficiently established that it has breached its obligations under articles 5 and 23 of the Convention by refusing Ms. Domina’s application for residence.It argues that Mr. Bendtsen has not been discriminated against, either directly or indirectly, as compared with a person without a disability applying for reunification who has also received maintenance benefits under the Active Social Policy Act. It further argues that the fact that benefits were awarded as a direct consequence of Mr. Bendtsen’s disability is irrelevant to the case.It argues that the relevant issue in the case is whether it is possible for Mr. Bendtsen to comply with the provisions of section 9 (5) of the Aliens Act on an equal basis with others who have received assistance under the Active Social Policy Act. It submits that the Supreme Court therefore rightly held that the existence of a disability could not, when viewed in isolation, justify an exemption from the condition set out in section 9 (5) of the Aliens Act, as the relevant assessment to be made was whether the existence of a disability prevented a person from becoming employed at a later point and accordingly meeting the condition in section 9 (5) of the Aliens Act. It notes that the Supreme Court and the Immigration Appeals Board found that Mr. Bendtsen had a reasonable prospect of satisfying the requirement of self-support under section 9 (5) of the Aliens Act at the time of the Board’s decision, because of his possibility of finding a job under the wage subsidy programme.The fact that the spouse living in Denmark has a disability is therefore not sufficient in and of itself to warrant an exemption from the condition of section 9 (5) of the Aliens Act, insofar as for such an exemption to be made, the disability of the person concerned must constitute a barrier to his or her possibility of satisfying the requirement of self-support.

4.9The State party also notes that Mr. Bendtsen refused a disability pension because he wanted to maintain links to the labour market through work. It argues that it would thus have been possible for him to have satisfied the requirement under section 9 (5) of the Aliens Act at an earlier point if he had accepted the offer of the disability pension. It submits that consequently Mr. Bendtsen has not been discriminated against in respect of his right to marriage and family life.

4.10The State party further argues that the finding by the Immigration Appeals Board that the authors could enjoy family life in Ukraine does not constitute a violation of their rights under article 5 of the Convention. It notes that under article 8 of the European Convention on Human Rights, does not impose on States a general duty to accept family reunification – that is, to accept a couple’s own choice of country in which they prefer to enjoy family life – as States have the right according to established case law to control aliens’ access to their territories and, in this context, to lay down rules on family reunification. To this end, States have a wide margin of appreciation and may, as a general rule, require an alien to enjoy family life in his or her country of origin. A violation of rights occurs only in cases in which the alien would face an insurmountable barrier if required to enjoy family life in his or her country of origin. The State party notes that in the present case, the Immigration Appeals Board assessed whether the authors could enjoy family life in Ukraine. The State party argues that the circumstance that Mr. Bendtsen has a disability cannot independently have as a consequence that no assessment should be made of the authors’ possibility of enjoying family life in Ms. Domina’s country of origin, which assessment would have to be made if the spouse resident in Denmark did not have a disability. In that case, Mr. Bendtsen would be placed in a better position than a person without disability.

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

5.1On 11 September 2017, the authors submitted their comments on the State party’s submission. They maintain that the communication is admissible. They argue that the domestic authorities did not make any real and substantial assessment of their rights under the Convention.

5.2As concerns the merits of the communication, the authors argue that the relevant assessment in order to determine whether Mr. Bendtsen was discriminated against on the basis of his disability is the connection between him having been granted social benefits due to his disability and the subsequent rejection of the authors’ application for family reunification on the basis of those benefits. They note that, in its decision, the Supreme Court compared Mr. Bendtsen’s situation to that of persons without disabilities who had received social benefits for other reasons than disability. They consider that this approach is contrary to the Convention as a person with a disability and receiving social benefits is not in a comparable situation to a person without a disability also receiving social benefits. They further argue that the approach taken by the Supreme Court is not proportional, as even if Mr. Bendtsen had been granted employment under the wage subsidiary programme, they would still have had to wait for an additional three years after the employment had been granted before a decision on family reunification could have been made. The authors further argue that the granting of employment under the programme is not automatic, but within the prerogative of the social services.

State party’s additional observations

6.1On 24 November 2017, the State party submitted additional observations on the admissibility and merits of the communication. The State party refers to and reiterates its observations of 10 July 2017 and maintains that the authors have failed to establish a prima facie case for the purpose of admissibility.

6.2Should the Committee find the communication admissible, the State party maintains that the decision made by the Immigration Appeals Board of 3 December 2011 to deny Ms. Domina’s application for a residence permit was not contrary to articles 5 and 23 of the Convention.

B.Committee’s consideration of admissibility and the merits

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

7.2The Committee has ascertained, as required under article 2 (c) of the Optional Protocol, that the same matter has not already been examined by the Committee and nor has it been and or is it being examined under another procedure of international investigation or settlement.

7.3The Committee notes the authors’ claim that they have exhausted all effective domestic remedies available to them. In the absence of any objection by the State party in that connection, the Committee considers that the requirements of article 2 (d) of the Optional Protocol have been met.

7.4 The Committee notes the State party’s submission that the authors’ claims should be found inadmissible for lack of substantiation, under article 2 (e) of the Optional Protocol. However, the Committee also notes the authors’ argument that the requirement of being able to support oneself financially in order to be granted family reunification constitutes a barrier for persons with disabilities to enjoy the right to family life on an equal basis with others. It further notes the claims that in their decisions on the application for family reunion, the domestic authorities did not bear in mind that persons with disabilities were in a significantly less favourable situation than others in terms of access to the labour market and that Mr. Bendtsen was therefore placed at an unreasonable disadvantage on the basis of his disability. The Committee also notes the authors’ claims that the deportation of Ms. Domina to Ukraine would irreparably harm the established family life of the authors and their child. The Committee therefore considers that the authors have sufficiently substantiated their claims for the purposes of admissibility.

7.5Accordingly, and in the absence of any other obstacles to admissibility, the Committee declares the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

8.1The Committee has considered the communication in the light of all the information that it has received, in accordance with article 5 of the Optional Protocol and rule 73 (1) of the Committee’s rules of procedure.

8.2The Committee takes note of the authors’ allegations of discrimination in view of the rejection by the State party’s competent authorities of their application for family reunification. It notes their argument that the requirement under section 9 (5) of the Aliens Act constitutes a barrier for persons with disabilities to enjoy the right to family life on an equal basis with others. The Committee also notes the State party’s argument that Mr. Bendtsen had a reasonable prospect of satisfying the requirement of self-support under section 9 (5) of the Aliens Act because of his possibility of finding a job under the wage subsidy programme, and that he therefore has not been discriminated against, either directly or indirectly, as compared with persons without disabilities applying for family reunification who has received maintenance benefits under the Active Social Policy Act.

8.3The Committee recalls that under article 2 of the Convention, “discrimination on the basis of disability” is defined as any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field, and includes all forms of discrimination, including denial of reasonable accommodation. The Committee further recalls that a law that is applied in a neutral manner may have a discriminatory effect when the particular circumstances of the individuals to whom it is applied are not taken into consideration. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention can be violated when States, without objective and reasonable justification, fail to treat differently persons whose situations are significantly different. The Committee recalls that in cases of indirect discrimination, laws, policies or practices that appear neutral at face value have a disproportionately negative impact on persons with disabilities. Indirect discrimination occurs when an opportunity that appears accessible in reality excludes certain persons owing to the fact that their status does not allow them to benefit from the opportunity itself. The Committee notes that treatment is indirectly discriminatory if the detrimental effects of a rule or decision exclusively or disproportionately affect persons of a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Being a person with a disability falls within such categories. The Committee further observes that under article 5 (1) and (2) of the Convention, States parties have obligations to recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law; and to prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

8.4The Committee notes that in the present case, the authors’ application for reunification was rejected as Mr. Bendtsen did not meet the requirement under paragraph 9 (5) of the Aliens Act of having received no social security benefits in the three-year period prior to the application. It further notes that Mr. Bendtsen received benefits under the Active Social Policy Act from 14 May 2009, and that he continued to receive these benefits until mid-October 2015, when he was employed under the wage subsidy programme. The Committee notes that it is undisputed that the author received these benefits on the basis of his disability. The Committee notes the State party’s argument that the existence of a disability cannot, when viewed in isolation, justify an exemption from the condition set out in section 9 (5) of the Aliens Act, as the relevant assessment to be made is whether the existence of a disability prevents a person from becoming employed at a later point and accordingly meeting the condition in section 9 (5) of the Aliens Act. It also notes the State party’s argument that the Supreme Court and the Immigration Appeals Board found that Mr. Bendtsen had a reasonable prospect of satisfying the requirement of self-support under section 9 (5) of the Aliens Act because of his possibility of finding a job under the wage subsidy programme. The Committee further notes the authors’ argument that the relevant assessment in order to determine whether Mr. Bendtsen was discriminated against on the basis of his disability is the connection between him having been granted social benefits due to his disability and the subsequent rejection of the authors’ application for family reunification on the basis of those benefits.

8.5In the present case, the Committee notes that at the time of the authors’ application for family reunification Mr. Bendtsen was receiving social benefits on the basis of his disability and he was not in a position to take up employment. The Committee notes that the domestic authorities rejected the authors’ application for family reunification as they concluded that Mr. Bendtsen had a reasonable prospect of satisfying the requirement of self-support under section 9 (5) of the Aliens Act because of his possibility of finding a job under the wage subsidy programme. It also notes, however, that when the authors made their application for family reunification, Mr. Bendtsen had not yet qualified for the wage subsidy programme and could therefore not fulfil the requirement under section 9 (5) for family reunification under the Aliens Act. It further notes that at that point in time, family reunification was already a priority for the authors and their son. The Committee further notes that the assessment as to whether Mr. Bendtsen could qualify for employment under the wage subsidy programme was not finalized until March 2015 and that he was not employed under the programme until October 2015, six years after he had first started to receive social benefits under the Active Social Policy Act, and two and a half years after the authors had filed their application for family reunification. The Committee further notes the authors’ undisputed claim that in order to fulfil the requirement under section 9 (5) of the Aliens Act once Mr. Bendtsen had qualified for the wage subsidy programme in October 2015, they would have faced an additional waiting period of three years before they would have been eligible for family reunification under the Act. The Committee therefore concludes that in the present case the requirement of self-support under section 9 (5) of the Aliens Act disproportionally affected Mr. Bendtsen as a person with a disability and resulted in him being subjected to indirectly discriminatory treatment.

8.6The Committee therefore finds that the fact that the relevant domestic authorities rejected the authors’ application for family reunification on the basis of criteria that were indirectly discriminatory against persons with disabilities had the effect of impairing or nullifying the authors’ enjoyment and exercise of the right to family life on an equal basis with others, in violation of their rights under article 5 (1) and (2) read alone and in conjunction with article 23 (1) of the Convention.

C.Conclusion and recommendations

9.The Committee, acting under article 5 of the Optional Protocol, is of the view that the State party has failed to fulfil its obligations under article 5 (1) and (2) read alone and in conjunction with article 23 (1) of the Convention. The Committee therefore makes the following recommendations to the State party:

(a)Concerning the authors, the State party is under an obligation to:

(i)Provide them with an effective remedy, including compensation for any legal costs incurred in filing the present communication;

(ii) Refrain from expelling Ms. Domina to Ukraine and ensure that the authors’ right to family life in the State party is respected;

(iii)Publish the present Views and circulate them widely in accessible formats so that they are available to all sectors of the population.

(b)In general, the State party is under an obligation to take measures to prevent similar violations in the future. In that regard, the Committee requires the State party to ensure that barriers to the enjoyment by persons with disabilities of the right to family life on an equal basis with others are removed under domestic legislation.

10.In accordance with article 5 of the Optional Protocol and rule 75 of the Committee’s rules of procedure, the State party should submit to the Committee, within six months, a written response, including information on any action taken in the light of the present Views and recommendations of the Committee.