Human Rights Committee
Views adopted by the Committee under article 5 (4)of the Optional Protocol, concerning communicationNo. 2787/2016 * , ** , ***
Communication submitted by:J.R.R. and L.A.A. (represented by counsel, Kale Anwar, of the Danish Refugee Council)
Alleged victim s :The authors and their two minor children
State party:Denmark
Date of communication:15 July 2016 (initial submission)
Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 18 July 2016 (not issued in document form)
Date of adoption of Views:22 July 2021
Subject matter:Deportation to the country of origin (non-refoulement)
Procedural issues :Non-exhaustion of domestic remedies; insufficient substantiation of claims
Substantive issues:Risk of torture and other cruel, inhuman or degrading treatment; best interests of the child
Articles of the Covenant :7 and 24
Articles of the Optional Protocol:2 and 5 (2) (b)
1.1The authors of the communication are J.R.R., born on 29 October 1976, and his wife, L.A.A., born on 20 January 1982, both nationals of the Syrian Arab Republic. They submit the communication on their behalf and on behalf of their two minor children, A.J.R., born in October 2005, and R.J.R., born in January 2004. They were scheduled to be deported to Bulgaria on 19 July 2016.
1.2The authors claim that, if deported to Bulgaria, their family would be at risk of irreparable harm, in violation of their rights under articles 7 and 24 of the Covenant. They also sought interim measures from the Committee to halt their deportation. The first Optional Protocol to the Covenant entered into force for Denmark on 23 March 1976. The authors are represented by counsel, Kale Anwar, from the Danish Refugee Council.
1.3On 18 July 2016, the Committee issued an interim measures request whereby the State party should refrain from deporting the authors to Bulgaria pending the consideration of their communication.
Facts as submitted by the authors
2.1The authors are from Aleppo and Afrin, Syrian Arab Republic. They are of Kurdish ethnicity. On 5 October 2014, they fled the Syrian Arab Republic for Turkey after the authorities of the Syrian Arab Republic had been looking for J.R.R. in their house. The authors then fled from Turkey to Bulgaria.
2.2On 26 October 2014, the authors entered Bulgaria and stayed there until early June 2015. A smuggler who was helping them to travel from Turkey through Bulgaria to Denmark wanted the rest of his money, but J.R.R. would not pay him before they reached Denmark. The smuggler then threatened them and gave them an ultimatum: either they would pay him or he would take revenge on L.A.A. and their minor daughter.
2.3During their stay in Bulgaria, the authors experienced difficult conditions because they did not receive any form of support from the authorities in relation to finding accommodation, a job and schooling for their children.
2.4After being granted protection in Bulgaria, the family stayed at an asylum centre because they had no other option. The authors’ main reason for fleeing Bulgaria and entering Denmark and lodging an application for asylum there was the fear of being forced to live on the streets without any access to support from the Bulgarian authorities.
2.5In June 2015, the family left Bulgaria. On 4 June 2015, they entered Denmark and lodged an application for international protection there.
2.6On 1 June 2016, the Danish Immigration Service rejected their asylum applications because they had been issued a residence permit in Bulgaria. The family was ordered to leave Denmark immediately, pursuant to a section of the Aliens (Consolidation) Act referring to the Dublin Regulation. The authors were notified of the decision by the Danish police on 10 June 2016. The decision of the Service was appealed to the Refugee Appeals Board on 6 July 2016; however, the appeal did not have suspensive effect. The Danish police informed the authors’ counsel that the deportation to Bulgaria was scheduled for 19 July 2016. The authors requested the Committee to issue interim measures in order to halt the deportation, which was imminent.
2.7As regards the responsibilities of the State party under article 7 of the Covenant, the authors refer to the decisions by the European Court of Human Rights in M.S.S. v. Belgium and Greece , Samsam Mohammad Hussein and others v. the Netherlands and Italy, and Tarakhel v. Switzerland. The fact that the authors in the present case have been granted protection as refugees and are protected from refoulement in Bulgaria does not exclude the risk of them being faced with harsh living conditions, homelessness and destitution with no realistic prospect of finding a durable, humanitarian solution, constituting a violation of article 7 of the Covenant.
2.8The authors contend that they have exhausted all available and effective domestic remedies. The same matter has not been and is not being examined under another procedure of international investigation or settlement.
Complaint
3.1The authors claim that, by expelling them to Bulgaria, Denmark would violate their rights under article 7 of the Covenant. The State party must not remove the applicants to another State if there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant.
3.2Due to the authors’ prior experience, they fear that a return to Bulgaria would expose them, and especially their minor children, to inhuman or degrading treatment contrary to the best interests of the child because they would face homelessness, destitution, a lack of food and access to health care, and risks to their personal safety in Bulgaria, where they did not find any durable humanitarian solutions. They also fear facing the risk of harm from the people who smuggled them. Therefore, there are substantial grounds for believing that their removal to Bulgaria would create a real risk of irreparable harm for the authors and their children, in violation of article 7 of the Covenant.
3.3The authors refer to the decision by the Committee in Warda Osman Jasin et al. v. Denmark, in which the Committee found that returning a single mother left without shelter or means of subsistence to Italy, where she had previously been granted subsidiary protection, violated article 7 of the Covenant. The Committee found that, despite being granted a residence permit, she was faced on two occasions with indigence and extreme precarity. The authors claim that their return to Bulgaria would expose them, and in particular their minor children, to inhuman or degrading treatment, contrary to the best interests of the child, as they face a real risk of being left on the streets without any assistance from the Bulgarian authorities.
3.4The authors refer to background reports to substantiate their claims of there being no proper reception conditions or State assistance for asylum seekers and refugees in Bulgaria. The information presented strongly indicates that there is no effective integration programme for refugees or persons with subsidiary protection status in place in Bulgaria and that they face serious poverty, homelessness and limited access to health care. According to national law, this group of people would have access to the labour market, health-care system, social services and assistance in finding housing. In practice, however, it is almost impossible for this group of people to find work or a place to live. In order to access social services, refugees are required to provide an address, which is also impossible for most of them. In addition, Bulgaria faces serious problems of xenophobic violence and harassment, and such violent actions are often unaddressed by the authorities. This endangers the safety of asylum seekers and refugees and puts them at serious risk of being subjected to racist motivated violence, against which they cannot seek effective protection from the Bulgarian authorities.
3.5The authors already endured hardship during the flight to Europe and in their home country and are therefore extremely vulnerable. In that context, they claim that their children also risk a violation of their rights under article 24 (1) of the Covenant, to be read in conjunction with article 3 (1) of the Convention on the Rights of the Child.
3.6The authors further refer to the interpretation of vulnerability of the Committee on the Rights of the Child, which states than an important element to consider is the child’s situation of vulnerability, such as disability, belonging to a minority group, being a refugee or asylum seeker, victim of abuse, living in a street situation and so forth. The purpose of determining the best interests of a child or children in a vulnerable situation should be not only in relation to the full enjoyment of all the rights provided for in the Convention, but also with regard to other human rights norms relating to these specific situations, such as those covered in the Convention on the Rights of Persons with Disabilities and the Convention relating to the Status of Refugees.
3.7The authors in particular argue that the best interests of their children would be violated if they returned to Bulgaria. The Danish authorities, however, have not assessed the best interests of the authors’ children, failing requirements under article 24 of the Covenant and under the Convention on the Rights of the Child.
3.8In conclusion, the authors request the Committee to consider their communication admissible and to find that their deportation to Bulgaria would, if implemented, violate the authors’ and their two minor children’s rights under articles 7 and 24 of the Covenant.
State party’s observations on admissibility and the merits
4.1On 23 December 2016, the State party submitted its observations on the admissibility and the merits of the communication.
4.2As regards the facts, on 4 June 2015, the authors entered Denmark without valid travel documents and applied for asylum the same day for themselves and their children.
4.3On 1 June 2016, the Danish Immigration Service refused, pursuant to the section of the Aliens (Consolidation) Act referring to the Dublin Regulation, the authors’ and their children’s applications for asylum because the authors and their children had been granted residence in the form of refugee status in Bulgaria. The negative decision was appealed to the Refugee Appeals Board. On 15 February 2016, the authors brought the case before the Committee, claiming that their deportation to Bulgaria would constitute a breach of articles 7 and 24 of the Covenant. On 18 July 2016, the Board upheld the decision of the Danish Immigration Service.
4.4On 19 July 2016, the Refugee Appeals Board suspended the time limit for the departure of the authors and their children from Denmark until further notice.
4.5In its decision of 18 July 2016, the Refugee Appeals Board considered as a fact that J.R.R. and L.A.A. had been granted residence in Bulgaria until 17 April 2020 as refugees under the Convention relating to the Status of Refugees on 2 April 2015. The section in the Aliens Act referring to the Dublin Regulation provides that residence can be refused under that provision only if the conditions for considering the relevant country a country of first asylum have been met because the alien had previously obtained protection in that country. Some of the requirements of such refusal of residence are that the alien must be protected against refoulement and that the alien will be readmitted to the country of first asylum and is permitted to remain there. The personal integrity and safety of the alien must also be protected, but it cannot be required that the alien has completely the same social living standards as the nationals of the country of first asylum. However, a refugee must be treated in accordance with recognized basic human standards in the country of first asylum.
4.6The case law of the Refugee Appeals Board has taken into account, inter alia, whether the alien has access to accommodation and medical assistance, the possibility of employment in the private or public sector, the possibility of settling freely and the possibility of owning real estate. The Board finds that it is possible for the authors and their children to be readmitted to Bulgaria and be permitted to remain there and that the authors and their children will be protected against refoulement in Bulgaria. The authors and their children obtained protection in Bulgaria, a member of the European Union, bound by the Charter of Fundamental Rights of the European Union and the Convention relating to the Status of Refugees, including compliance with the principle of non-refoulement.
4.7Concerning the authors’ personal situation and experiences during their stay in Bulgaria, the State party submits that the Refugee Appeals Board accepted as facts that the authors and their children were essentially in good health, although the children had been affected by their experiences in the Syrian Arab Republic, and that they had not experienced any personal conflicts in Bulgaria. The authors have not provided specific information about the circumstances of their stay in Bulgaria or about their personal situation. L.A.A. stated only that she had suffered from pain in her legs and back and attributed that pain to her worries about the future of the family, for which reason she had not asked for treatment for that pain. She also stated at her asylum screening interview on 14 July 2015 that she had chosen to continue her journey from Bulgaria because she had two cousins (one man and one woman) in Denmark. She had felt lonely in Bulgaria and wanted to live closer to members of her family. The authors further stated that conditions at the refugee centre had been hard to endure because of poor sanitation and the lack of privacy, and the food had been inedible. In that regard, the Board found that the personal situation and previous experiences in Bulgaria of the authors and their children could not lead to the conclusion that reference could not be made to the authors’ possibility of taking up residence in Bulgaria as their country of first asylum. The Board found that, although difficult, the general socioeconomic conditions for refugees granted residence in Bulgaria could not independently lead to the conclusion that the authors and their children could not be refused residency in Denmark and returned to Bulgaria as their country of first asylum.
4.8L.A.A. stated to the Danish Immigration Service both at the asylum screening interview on 14 July 2015 and at the brief consultation interview on 9 March 2016 that she had been sexually harassed by a Syrian man who had lived at the refugee centre in Bulgaria and that she had distanced herself from him, thus it had not happened again. She was also duly informed prior to both interviews conducted by the Service that the Service and interpreter involved were bound by a duty of confidentiality and that the authorities would not pass on information to anybody, including her spouse, without her consent. The State party still finds that L.A.A. failed to give a reasonable explanation as to why she only gave the information on further sexual harassment at the second interview conducted by the Danish Refugee Council in July 2016, one week prior to the scheduled deportation to Bulgaria.
4.9As regards the background information on the conditions of recognized refugees in Bulgaria, the information indicates that recognized refugees are explicitly entitled by law to be treated equally with Bulgarian nationals with just a few exceptions. Individuals granted subsidiary protection (humanitarian status) have the same rights as third-country nationals with permanent residence. Once issued, a residence permit gives access to all types of work and social benefits, including unemployment benefits, although it is difficult to find a job in practice because of language barriers and a high unemployment rate. Persons with refugee status have access to health insurance, although they must pay for it. Public education is universal and compulsory until the age of 16 years and free through the twelfth grade. It also appears that the Government has adopted rules for concluding integration agreements with persons with refugee status that spell out the basic services – housing, education, language training, health services, professional training and job search assistance – to which they will receive access and the related obligations of the responsible institutions.
4.10As regards the alleged lack of access to effective integration programmes and risk of homelessness due to a lack of accommodation upon their return to Bulgaria, the State party submits, inter alia, that if a returned alien with granted international protection wishes to sign an agreement with local authorities to receive integration support, the local authorities provide assistance in finding such accommodation within the framework of their competence and in accordance with articles 9 and 14 of the ordinance for the conclusion, implementation and termination of the integration agreement of foreigners with granted asylum or international protection.
4.11The State party observes that the authors are a married couple with two minor children who do not suffer from any disease requiring therapy and therefore do not belong to a particularly vulnerable group. In addition, they have valid residence permits for Bulgaria. The Refugee Appeals Board made a thorough assessment of the authors’ specific circumstances and the background information available and found that the authors had failed to render it probable that they would risk persecution or abuse justifying asylum or that they were particularly vulnerable, thereby risking a violation of article 7 of the Covenant, in case of their deportation to Bulgaria. The authors have had the opportunity to make submissions to several bodies and the Board has thoroughly examined the authors’ case on the basis of those submissions, finding that the general conditions of refugees granted residence in Bulgaria, including families with children, are not of such nature that Bulgaria cannot serve as a country of first asylum. The Board also found that no information had been provided about the personal situation of the authors and their children and it could base its decision on only the information provided by the authors about their experiences in Bulgaria when interviewed by the Danish Immigration Service and at the first appointment with the Danish Refugee Council. According to the submissions made, the authors and their children had not experienced any personal conflicts during their stay in Bulgaria and were essentially in good health.
4.12The State party further argues that it is incumbent upon the relevant authors to explain why the decision of the Refugee Appeals Board is manifestly unreasonable or arbitrary in nature, referring to the Committee’s jurisprudence. It also reiterates that, in their communication of 15 July 2016 to the Committee, the authors did not provide any details that were not taken into account by the Board in its decision of 18 July 2016. The authors’ communication merely reflects that they disagree with the assessment of their specific circumstances and the background information provided by the Board. In their communication to the Committee, the authors also failed to identify any irregularity in the decision-making process or any risk factors that the Board had failed to take into account. Therefore, the authors are in fact trying to use the Committee as an appellate body to have the factual circumstances of their claims reassessed by the Committee. The Committee must give considerable weight to the findings of fact by the Board, according to which the authors failed to establish that there are substantial grounds for believing that they face a real risk of being subjected to inhuman or degrading treatment or punishment if deported to Bulgaria.
4.13In conclusion, the State party submits that the communication should be considered inadmissible because the authors did not exhaust all available domestic remedies. The part of the authors’ communication that relates to article 24 (1) of the Covenant should be rejected as inadmissible ratione materiae pursuant to the rules of procedure. Should the Committee find the communication admissible, the State party invites it to conclude that a real risk of a violation of article 7 of the Covenant has not been established. The State party also requests that the Committee review its request for interim measures because the authors have failed to render it probable that they would face a risk of irreparable harm if deported to Bulgaria. Lastly, the State party points to case law of the Danish immigration authorities, which indicates, inter alia, the recognition rates for asylum claims from the 10 largest national groups of asylum seekers decided upon by the Refugee Appeals Board between 2013 and 2015 (with high refugee status recognition rates for Syrians).
Authors’ comments on the State party’s observations on admissibility and the merits
5.1On 28 February 2017, the authors submitted comments on the State party’s observations, requesting the Committee to uphold its request for interim measures.
5.2The authors argue that a prima facie case has been made and that they had exhausted domestic remedies at the time of the initial communication because their appeal to the Refugee Appeals Board against the decision of the Danish Immigration Service did not have suspensive effect. The negative decision of the Board was adopted on 18 July 2016. Therefore, the authors exhausted all effective domestic remedies that were available to them, as required by article 5 (2) (b) of the Optional Protocol.
5.3As regards the admissibility of the authors’ claims under article 24, article 2 of the Covenant should be understood to reflect an obligation not to remove a person to another State where there is a real risk of irreparable harm. This obligation is not limited to articles 6 and 7 of the Covenant because the irreparable harm may arise under other provisions of the Covenant. They added that the Committee had never comprehensively addressed to what extent irreparable harm resulting from a violation of Covenant rights other than rights under articles 6 and 7 may give rise to the non-refoulement obligation. However, the Committee has not foreclosed the possibility of recognizing such non-refoulement obligations, nor has it taken the position that non-refoulement claims based on other articles are as such incompatible ratione materiae with the Covenant.
5.4The Committee’s jurisprudence in this area establishes that deportation can give rise to a real risk of irreparable harm under Covenant rights independent of articles 6 and 7. The Committee’s jurisprudence further shows that it is possible for deportation to give rise to a real risk of irreparable harm under a number of Covenant rights in conjunction with articles 6 and 7. In A and B v. Denmark, the Committee found the authors’ claim that deportation to Pakistan would create a real risk of irreparable harm was admissible under article 18 due to their adherence to the Ahmadi Muslim faith. In a similar vein, the Human Rights Committee, in its general comment No. 35 (2014), provides that deportation to a country where there are substantial grounds for believing that the individual faces a real risk of a severe violation of liberty or security of person, such as prolonged arbitrary detention, may, in extreme cases, violate article 7 of the Covenant. The authors claim that the act of deportation to Bulgaria would violate the obligations of Denmark under article 24 (1) because there are substantial grounds for believing that there is a real risk of irreparable harm to the minor authors, and this claim should be admissible.
5.5The authors also argue that a prima facie case for the purposes of admissibility has been made because sufficient evidence was submitted. They submitted a claim outlining the real risk of ill-treatment in breach of article 7 if returned to Bulgaria, supported by both their previous personal experience in Bulgaria and the background information on the situation of asylum seekers and refugees in the country. The Committee has recently found two communications regarding the return of Syrian nationals to Bulgaria as the country of first asylum under article 7 admissible, namely in R.A.A. and Z.M. v. Denmark and B.M.I. and N.A.K. v. Denmark.
5.6As regards the State party’s denial of a real risk of ill-treatment in violation of article 7 on the basis that Bulgaria constitutes the country of first asylum, it is reiterated that L.A.A. was sexually harassed there. International jurisprudence and guidance recognizes that a sense of shame or fear of stigmatization inhibits disclosure of relevant information in the asylum procedure.
5.7As regards basic human standards for international protection holders in Bulgaria, the State party repeatedly refers to the existence of an integration system in Bulgaria; however, background information demonstrates that this is effectively non-existent. In their research note of February 2016, the European Council on Refugees and Exiles and the European Legal Network on Asylum reported: “There is no integration support, a status quo which has lasted for two years. Temporary accommodation in the reception centres is only for a duration of three months and does not include the most basic amenities. Any form of budget for integration has been consistently delayed and as a consequence recognised status holders find themselves without accommodation, social support, medical insurance and vocational training.” A report published by PRO ASYL in December 2015 states that there is a likelihood of homelessness and a lack of effective access to medical support for international protection holders.
5.8In its world report for 2015/16, Amnesty International states: “There continued to be no integration plan for recognized refugees and other beneficiaries of international protection. Although the government adopted the National Strategy on Migration, Asylum and Integration for 2015–2020 in June, it failed to follow it up with an Action Plan that would implement the Strategy.” In its country report of October 2015 on Bulgaria, the Asylum Information Database documents a complete absence of integration support: “All newly recognised individuals have been finding themselves without accommodation, social support, medical insurance and vocational training just a few days after their recognition. Many vulnerable categories such as unaccompanied minors, elderly, ill and disabled are exposed to a real risk of homelessness and destitution.” In the report, it is stated that a policy of zero integration has existed since 2014.
5.9Available background information demonstrates that recognized international protection holders returned to Bulgaria are excluded from accommodation in reception centres. In the recent communication of R.A.A. and Z.M. v. Denmark, the Committee noted that holders of international protection returned to Bulgaria faced an insufficient integration system. While the State party’s observations insist that the authors have formal access to support from the State of Bulgaria, the Committee has repeatedly emphasized that States parties should show how a residence permit would protect authors returned to a country of first asylum. It is therefore likely that the authors would not have effective access to any integration support if returned to Bulgaria. This would expose them to a real risk of ill-treatment, including threats to the personal integrity of L.A.A., homelessness and destitution, in violation of article 7.
5.10In conclusion, the authors recall that their claim is not based on a mere question of reduced socioeconomic standards; the risks for them go well beyond that. Relevant background information shows that on-the-ground conditions for international protection holders in Bulgaria do not meet the standards required by the principle of country of first asylum and expose the authors to a real risk of ill-treatment in violation of article 7.
State party’s additional observations
6.1On 18 August 2017, the State party reiterated its initial arguments of inadmissibility and lack of merits.
6.2As regards the authors’ comments of 28 February 2017, and in relation to article 24 of the Covenant, the State party observes that the authors’ reference to the Committee’s decision in A and B v. Denmark is incorrect. In that case, the Committee found that the authors’ removal to Pakistan would not violate their rights under articles 6 and 7 of the Covenant, for which reason the Committee found no reason to examine the authors’ claim under article 18 of the Covenant.
6.3As regards the authors’ reference to Warda Osman Jasin et al. v. Denmark that the State party did not explain how the author’s residence permit would protect her and her three minor children from the hardship and state of destitution she had already experienced in Italy, the State party observes that the authors of the case at hand did not experience any hardship in Bulgaria. The Government finds that no meaningful comparison can be made between the case at hand and Warda Osman Jasin et al. v. Denmark. The case at hand concerns the deportation to Bulgaria of a married couple with two minor children.
6.4Concerning the authors’ personal situation and experiences during their stay in Bulgaria, the Refugee Appeals Board accepted as facts that the authors and their children were essentially in good health, that they had not experienced any personal conflicts in Bulgaria and that they could take up residence in Bulgaria as their country of first asylum.
6.5The State party reiterates that L.A.A. stated to the Danish Immigration Service both at the asylum screening interview on 14 July 2015 and at the brief consultation interview on 9 March 2016 that she had been sexually harassed by a Syrian man who had lived at the refugee centre and that she had distanced herself from him, for which reason it had not happened again.
6.6As regards the background information on the conditions of recognized refugees in Bulgaria, the most recent information, including in the updated country report on Bulgaria published by the Asylum Information Database in 2017, indicates that recognized refugees are explicitly entitled to equal treatment in rights as Bulgarian nationals with just a few exclusions, such as participation in general and municipal elections and in national and regional referendums, participation in the establishment of political parties and membership of such parties, and holding positions for which Bulgarian citizenship is required by law. Individuals granted subsidiary protection (humanitarian status) have the same rights as third-country nationals with permanent residence. In Country Reports on Human Rights Practices for 2016: Bulgaria, published in 2017, the United States of America Department of State reports that public education is universal and compulsory until the age of 16 years and free through the twelfth grade. It also appears that the Government adopted rules for concluding integration agreements with persons with refugee status that spell out the basic services – housing, education, language training, health services, professional training and job search assistance – to which they will receive access and the obligations of the responsible institutions. As at 13 June 2017, 61 persons with refugee or subsidiary protection status had registered with an unemployment office, 11 had found jobs and 10 had been placed in training programmes. Therefore, the State party still finds that Bulgaria can serve as the country of first asylum for persons granted refugee status or subsidiary protection in Bulgaria.
6.7The State party further refers to the views adopted by the Committee in B.M.I. and N.A.K. v. Denmark. The case concerned the deportation of a married couple and their two minor children to Bulgaria, where they had been granted residence as refugees. The State party finds that the authors have failed to substantiate their claim that they are at a personal and individual risk of suffering treatment contrary to article 7 of the Covenant. The Committee has recognized that, although persons granted refugee status or subsidiary protection may possibly be confronted with difficulties in their country of first asylum, this does not imply that they would be in a special situation of vulnerability on return to their country of first asylum. The State party recalls that the general conditions of refugees granted residence in Bulgaria, including families with children, are not of such nature that Bulgaria cannot serve as a country of first asylum. The Refugee Appeals Board accepted that the authors’ personal situation or previous experiences in Bulgaria cannot lead to the conclusion that they would not be able to take up residence in Bulgaria again as their country of first asylum.
6.8Therefore, the deportation of the authors and their children to Bulgaria would not be contrary to articles 7 and 24 of the Covenant.
Authors’ comments on the State party’s additional observations
7.1On 26 March 2019, the authors submitted comments on the State party’s observations from 18 August 2017.
7.2Because the State party’s request to lift the interim measures was denied on 5 May 2017, the authors did not make further comments in relation to the issue of admissibility.
7.3Although the factual circumstances are different from the case of Warda Osman Jasin et al. v. Denmark, the authors claim that they would risk a violation of their rights under article 7 of the Covenant because the Bulgarian authorities previously failed to protect the family’s personal integrity, and the newest background information shows that recognized refugees still face immense difficulties. Additionally, the authors’ minor children experienced the war in the Syrian Arab Republic, a dangerous escape from that State and hardship in Bulgaria and should thus be considered extremely vulnerable.
7.4The authors reiterate that the background information refers to the absence of basic human standards for international protection holders in Bulgaria. On 3 November 2018, the Office of the United Nations High Commissioner for Refugees (UNHCR) Representative in Bulgaria shared its response to a number of questions of the Danish Refugee Council, stating that there was still no integration programme for refugees in Bulgaria because it had been suspended in 2014 and that the limited integration opportunities and the lack of support from the Government was a primary challenge for refugees. Two integration centres in Sofia (run by Caritas Bulgaria and UNHCR/Bulgarian Red Cross) provide some assistance and advice.
7.5Beneficiaries of international protection face a number of legal and practical barriers to accessing housing, exposing them to a risk of homelessness. According to the law, refugees must vacate reception facilities within 14 days of being notified of a positive decision because they are no longer entitled to reception assistance. Within this period, they must find an external address where they can be registered, which is also necessary to obtain their identification documents. This requires finding private housing with a landlord with whom a contract is concluded. Landlords are generally reluctant to rent to refugees. Anti-refugee and xenophobic rhetoric by politicians and media coverage have resulted in the general public’s often negative attitude towards refugees. There are no government programmes to help refugees find accommodation. In some cases, the State Agency for Refugees tolerates on an ad hoc basis a stay at reception facilities for up to six months for vulnerable refugees who lack alternative options. However, they are not entitled to food. Moreover, beneficiaries of international protection returned to Bulgaria are not eligible for a stay at the reception facilities of the Agency even on an ad hoc basis. Access to social housing is governed by municipal legislation, which imposes conditions that beneficiaries of international protection cannot fulfil, including one of the spouses having to be a Bulgarian national and to have resided in the municipality for a certain period (in Sofia, it is 10 years without interruption).
7.6In its country report on Bulgaria, the Asylum Information Database states that beneficiaries face acute difficulties in securing accommodation due to the legal circumstances of civil registration. The situation has been exacerbated since the State Agency for Refugees began prohibiting beneficiaries from providing the address in the reception centre where they resided during the asylum procedure as domicile for that purpose. That led to corruption practices of fictitious rental contracts.
7.7Multiple sources express concern regarding the extent of hate speech and hate crimes against refugees and asylum seekers. Negative coverage of migrants appeared in some media, repeating stereotypes that encouraged societal intolerance. On several occasions, mayors refused to register refugees with recognized status and local residents protested against attempts by refugees to settle in their respective locations.
7.8On 31 May 2017, the Committee on the Elimination of Racial Discrimination expressed its deep concern about the reported increase in incidents of hate speech and hate crimes during the period under review. In November 2018, the Human Rights Committee also raised its concerns about reports of increased acts of hate speech and hate crimes, particularly against Roma, members of religious minorities, lesbian, gay, bisexual, transgender and intersex persons, migrants and asylum seekers, including racist, xenophobic and intolerant speech.
7.9The authors object to the State party’s assumption that their claim is based on a mere question of reduced socioeconomic standards. The past experiences of the authors and the background information show that the conditions for international protection holders in Bulgaria do not meet the standards required by the principle of country of first asylum and expose the authors to a real risk of ill-treatment in violation of articles 7 and 24 of the Covenant.
Further additional observations by the State party
8.1On 5 July 2019, the State party submitted that the authors’ further additional comments of 26 March 2019 did not contain any new information regarding the case beyond the circumstances of the Danish authorities’ examination of the authors’ and their children’s applications for asylum and the authors’ communication of 15 July 2016 and observations of 28 February 2017. The State party hence refers to its observations of 23 December 2016 and additional observations of 18 August 2017.
8.2As regards the authors’ reference to various background reports on the conditions for refugees in Bulgaria, the State party argues that the Refugee Appeals Board has a comprehensive collection of general and regularly updated background material on the situation in countries to which asylum seekers can be returned if their individual applications for asylum in Denmark are refused pursuant to the section of the Aliens (Consolidation) Act referring to the Dublin Regulation. Such material contains information on the conditions for refugees in Bulgaria, including “Questions for UNHCR Bulgaria regarding the situation for asylum seekers and refugees in Bulgaria: UNHCR response”, as well as more recent reports, such as “Country report: Bulgaria” of the Asylum Information Database (January 2019; updated in February 2019), Bulgaria 2018 Human Rights Report of the United States Department of State (March 2019) and Country Report: Immigration Detention in Bulgaria – Fewer Migrants and Refugees, More Fences of the Global Detention Project (2019).
8.3The information put forward by the authors on the conditions for refugees in Bulgaria has been subject to evaluation by the Refugee Appeals Board; however, the material referred to does not provide any information showing that the general conditions in Bulgaria have changed in a way that would lead the Board to change its decision of 18 July 2016. The State party added that the UNHCR document referred to contains information only on the general conditions in Bulgaria, not concerning this specific case.
8.4As regards the alleged lack of access to effective integration programmes and risk of homelessness due to a lack of accommodation upon their return to Bulgaria, the State party reiterates its observations of 23 December 2016 and attaches the updated information on refugee integration measures and social services available to refugees in Bulgaria from the State Agency for Refugees in Bulgaria. If an alien with granted international protection wishes to sign an agreement with local authorities to receive integration support, the local authorities provide assistance in finding such accommodation within the framework of their competence (see para. 4.10 above).
8.5The State party observes that, due to the Committee’s request to refrain from deporting the authors while their case is under consideration by the Committee, the authors — despite being recognized as refugees in Bulgaria — have at present been staying in Denmark for almost three years since having their application for asylum decided on in two instances by the Danish authorities. It recalls the fact that the authors’ Bulgarian residence permit expires on 17 April 2020. Therefore, the Government respectfully requests the Committee to consider the admissibility and merits of the case in a timely manner, allowing the case to be resolved while the authors’ Bulgarian residence permit is still valid.
8.6The authors’ additional observations do not contain information that would preclude them from taking up residence in Bulgaria as their country of first asylum. Therefore, it would not constitute a violation of article 7 of the Covenant to deport the authors and their children to Bulgaria.
Issues and proceedings before the Committee
Consideration of admissibility
9.1Before 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.
9.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
9.3The Committee recalls its jurisprudence to the effect that the authors must avail themselves of all domestic remedies in order to fulfil the requirement of article 5 (2) (b) of the Optional Protocol, insofar as such remedies appear to be effective in the given case and are de facto available to the authors. The Committee notes that the State party has contested the admissibility of the communication due to non-exhaustion of available domestic remedies because the authors made an appeal against the negative asylum decision to the Refugee Appeals Board, which was pending when the authors submitted their communication to the Committee on 16 July 2016. The Committee notes the authors’ argument that the decision of the Danish Immigration Service, which rejected their asylum applications on 1 June 2016 and ordered the family to leave Denmark immediately, was appealed to the Board on 6 July 2016; however, the appeal did not have suspensive effect. The Committee observes that the authors’ deportation to Bulgaria was scheduled for 19 July 2016, due to which the authors held that no further domestic remedies were available, and that the State party did not contest this argument. In such circumstances, the Committee considers that the State party has not demonstrated that there would be additional remedies in this case that were effective and available to the authors. Accordingly, the Committee finds that it is not precluded from examining the communication by the requirements of article 5 (2) (b) of the Optional Protocol.
9.4The Committee notes the authors’ claim that a State should refrain from removing a person not only where that person would face a risk to life or torture, but also in case of a risk of serious or “flagrant” violation of his or her rights under article 24 (1) of the Covenant. In this regard, the Committee notes the State party’s objection that the authors’ claims under article 24 (1) of the Covenant are inadmissible ratione materiae because returning the family with minor children to the country of first asylum would not amount to a risk of irreparable harm in violation of the best interests of the authors’ children. The Committee observes the authors’ argument that the Committee has never comprehensively addressed to which extent irreparable harm resulting from a violation of Covenant rights other than those in articles 6 and 7 may give rise to the non-refoulement obligation. The Committee, however, also observes that the authors did not present specific arguments on the situation of their children when they stayed in Bulgaria from October 2014 to May 2015, and that they pointed to the perceived vulnerability of their children due to general risk factors without indicating specific risks for their children that could be considered real or foreseeable if removed to Bulgaria. The Committee recalls that article 2 of the Covenant entails an obligation for States parties not to deport 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 in articles 6 and 7 of the Covenant in the State to which removal is to be effected. In this connection, the Committee notes that the authors did not provide sufficient information about real and foreseeable risks for their children that would enable the Committee to conclude that the removal of children to Bulgaria would amount to irreparable harm such as that contemplated in articles 6 and 7. Accordingly, the Committee considers that the authors have not sufficiently substantiated their claim under article 24 (1) for purposes of admissibility. Accordingly, it concludes that this part of the communication is inadmissible under article 2 of the Optional Protocol.
9.5The Committee notes that the admissibility of the authors’ claims under article 7 has not been disputed by the State party. The Committee considers that, for the purpose of admissibility, the authors have adequately explained the reasons for which they fear that their forcible return to Bulgaria would result in a risk of treatment contrary to article 7 of the Covenant. In the absence of any other obstacles to admissibility, the Committee declares the communication admissible, insofar as it appears to raise issues under article 7 of the Covenant, and proceeds with its consideration of the merits.
Consideration of the merits
10.1The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
10.2The Committee notes the authors’ claim that deporting them and their two minor children (a married couple with two minor children, aged 10 and 12 years at the time of the initial submission) to Bulgaria as the country of first asylum would expose them to treatment contrary to article 7 of the Covenant. The Committee also notes the authors’ argument that, during their stay in Bulgaria, they experienced difficult conditions because they did not receive any form of support from the authorities in relation to finding accommodation, a job and schooling for their children and that they would be facing the same socioeconomic conditions, including poverty, a lack of access to adequate housing, food and health care, and risk to their personal safety in Bulgaria, where they did not find any durable humanitarian solutions. They also fear a lack of access to social assistance and to integration programmes for refugees and asylum seekers, as demonstrated by their experience as asylum seekers and after they received refugee status and residence permits, as well as by the general conditions of reception for asylum seekers and refugees in Bulgaria, which do not meet the standards required by the principle of the country of first asylum. The Committee further notes the authors’ submission that, because they already benefited from the reception system when they first arrived in Bulgaria and were granted refugee status, they would not have access to reception facilities upon their return to Bulgaria and they would not be able to find accommodation and a job, and they would therefore face homelessness and be forced to live with their minor children on the streets.
10.3The Committee recalls 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 articles 6 and 7 of the Covenant. 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 a risk exists, unless it is found that the evaluation was clearly arbitrary, manifestly erroneous or amounted to a denial of justice.
10.4The Committee observes that it is not disputed that Bulgaria granted the authors refugee status on 2 April 2015, that they received residence permits valid until 17 April 2020, that they stayed in the camp for asylum seekers after receiving refugee status, and that the conditions of the country of first asylum have been met because the authors had previously obtained protection in Bulgaria and had the possibility to be readmitted and remain there. The Committee also notes that the Refugee Appeals Board found that the authors did not face any problems with the Bulgarian authorities and that they would enjoy the necessary social rights if they were returned to Bulgaria. The Committee further notes that the authors relied on reports on the general situation of asylum seekers and refugees in Bulgaria, according to which the two weeks up to six months of assisted accommodation is insufficient to enable people to provide for themselves subsequently, stating that it is extremely difficult for people who have been granted protection status and are returned to Bulgaria to find accommodation and a job, and that persons who have been granted refugee status or subsidiary protection in Bulgaria face poverty, homelessness and limited access to health care and schooling if they return. Nonetheless, the Committee also notes the State party’s submission that, when interviewed about their stay in Bulgaria, the authors did not present any evidence on having experienced any hardship, that they did not elaborate, during the interviews with the asylum authorities in Denmark, on their experience as regards access to housing, social assistance, medical care and schooling for their children, that the authors and their children were essentially in good health, and that the authors would be entitled, as refugees, to receive the necessary medical treatment if returned to Bulgaria. According to the Board, the authors did not experience any personal conflicts in Bulgaria or significant personal risks that could be timely and reliably established, and the general assumption is that persons granted refugee and protection status in Bulgaria have the same rights as Bulgarian nationals.
10.5The Committee notes that the authors were granted refugee status and had valid residence permits in Bulgaria and therefore did not risk refoulement to the Syrian Arab Republic.
10.6The Committee observes that the material before it, as well as general information in the public domain on the situation of refugees and asylum seekers in Bulgaria, indicates that there may be a lack of available places in the reception facilities for asylum seekers and returnees and that they often have poor sanitary conditions. It also notes that, according to the information before it, returnees like the authors, who have already been granted a form of protection and benefited from the reception facilities when they were in Bulgaria, are not entitled to accommodation in the camps for asylum seekers beyond a six-month period from the time protection status is granted. It further notes that, although beneficiaries of protection are entitled to work and enjoy social rights in Bulgaria, its social system is in general insufficient to attend to all persons in need. The Committee, however, notes that the authors were not homeless before their departure from Bulgaria and did not live in destitution. The Committee further observes that, according to their statements made to the Refugee Appeals Board, the authors had access to medical treatment during their stay in Bulgaria. Likewise, the authors have not provided any information that would explain why they would not be able to find a job in Bulgaria or to seek the protection of the Bulgarian authorities in case of unemployment. In that context, the Committee notes that the authors have not submitted sufficient evidence that would adequately substantiate their claim that they would face a real and personal risk of inhuman or degrading treatment if they are returned to Bulgaria. Accordingly, the Committee considers that the mere possibility of being confronted with difficulties upon their return to Bulgaria does not in itself mean that they would be in a special situation of vulnerability and in a situation significantly different from many other families living in Bulgaria.
10.7The Committee further considers that, although the authors disagree with the decision of the State party’s authorities to return them to Bulgaria as their country of first asylum, they have failed to demonstrate that the decision is manifestly erroneous, clearly arbitrary or constitutes a denial of justice. They have not pointed out any procedural irregularities in the procedures before the Danish Immigration Service or the Refugee Appeals Board. Accordingly, the Committee cannot conclude that the removal of the authors to Bulgaria by the State party would constitute a violation of article 7 of the Covenant.
11.The Committee, acting under article 5 (4) of the Optional Protocol to the Covenant, is of the view that the authors’ removal to Bulgaria would not violate their rights under article 7 of the Covenant. The Committee, however, is confident that the State party will duly coordinate with the Bulgarian authorities regarding the authors’ removal, inter alia, by seeking assurances that the authors’ residence permits in Bulgaria would be renewed.
Annex
Joint opinion of Committee members José Manuel Santos Pais, Hélène Tigroudja and Duncan Laki Muhumuza (dissenting)
1.We regret not being able to concur with the Committee’s decision that the authors’ and their children’s removal to Bulgaria would not violate their rights under article 7 of the Covenant.
2.The communication was presented by J.R.R. and his wife, both nationals of the Syrian Arab Republic and of Kurdish ethnicity, on their behalf and on behalf of their two minor children, born in October 2005 and January 2004 (see para 1.1). They claim that, if deported to Bulgaria, their family would be at risk of irreparable harm, in violation of their rights under articles 7 and 24 of the Covenant (see para 1.2).
3.The authors left the Syrian Arab Republic in 2014 after experiencing the war there and entered Bulgaria from Turkey in October of the same year, where they were harassed and threatened, particularly L.A.A., by the smuggler who was to help them to reach Denmark and wanted to receive his pay first. They managed, however, to reach Denmark in June 2015.
4.While living in Bulgaria, the authors were granted refugee status and a residence permit. However, although staying at an asylum centre, they and their children experienced difficult conditions and feared having to be forced to live on the streets without any access to support from the Bulgarian authorities (see paras. 2.3–2.4).
5.Contrary to the Committee’s findings, we believe that the authors and their children will face a risk of irreparable harm if returned to Bulgaria due to several concurrent factors.
6.The authors’ residence permits expired in April 2020 (see paras 4.5 and 8.5) and it is not clear what consequences this will have on the authors’ return.
7.There does not seem to be any effective integration programmes in place in Bulgaria for refugees or persons with subsidiary protection status, and the authors will most probably face serious poverty because it is most difficult to find work, as the State party acknowledges, due to not only language barriers but also a high unemployment rate (see paras 3.4 and 4.9). The authors will also have limited access to health care (see para 3.4) and health insurance must be paid by the beneficiaries (see para 4.9). The authors will no longer be entitled to accommodation in reception centres on their return (see paras 5.9 and 7.5) and they may therefore face harsh living conditions, homelessness and destitution.
8.The authors will also have difficulty in accessing private housing because they are foreigners. Their access to social services will consequently be jeopardized because beneficiaries are required to have a permanent address (see para 3.4), which the authors will have difficulties in guaranteeing.
9.The authors will most certainly face, on their return to Bulgaria, hate speech, racist motivated violence and hostility vis-à-vis foreigners (see paras 3.4 and 7.7–7.8), which seem to be growing alarmingly, with possible risks to the personal integrity and safety of the whole family. Violent actions of this nature seem to be often unaddressed by the authorities.
10.Over and above these risk factors, one cannot exclude further threats and harassment by the human smugglers’ criminal networks operating in Bulgaria, as reflected by the previous threats of the smuggler who had helped them into the country, which may resurface.
11.Moreover, general conditions seem to be poor for foreigners in Bulgaria, as acknowledged by the State party (see para 4.7), with no accommodation, social support, medical insurance and vocational training available for them, as attested by several international organizations. Even integration programmes for refugees were suspended in 2014 (see paras. 4.9, 5.7–5.8 and 7.4).
12.The State party acknowledges that the children were particularly affected by their experiences of war and the dangerous escape from the Syrian Arab Republic (see paras. 3.5 and 4.7). We are therefore facing a particular and increased vulnerability of the children due to their previous flight history from their home country and the persistent hardship they have endured from that moment onwards, circumstances the State party does not seem to have fully taken into account to preserve the best interest of the children, now living and being integrated in Denmark for the past six years.
13.Due to all these multiple and cumulative risk factors, which the Committee also seems to acknowledge in its decision (see para. 11), we would conclude there will be a violation of the authors’ and their children’s rights under article 7 of the Covenant if they are removed to Bulgaria and we therefore would request the State party to guarantee a proper and renewed assessment of the real and personal risks the authors might face if deported to that country.