Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No. 2795/2016 * , **

Communication submitted by:Z (represented by counsel, Arbab Perveez)

Alleged victims:The author and her minor daughter, C

State party:Denmark

Date of communication:4 July 2016 (initial submission)

Document reference:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 9 August 2016 (not issued in document form)

Date of adoption of decision:22 March 2023

Subject matter:Deportation to Morocco of a single woman and her minor daughter

Procedural issues:Admissibility – lack of substantiation; admissibility – ratione materiae

Substantive issues:Cruel, inhuman or degrading treatment or punishment; fair trial; non-refoulement; right to life; refugee status

Articles of the Covenant:6, 7 and 14

Articles of the Optional Protocol:2 and 3

1.1The author of the communication is Z, a national of Morocco born in 1984. She submits the communication in her own name and on behalf of her minor daughter, C, who was born in 2014. Following the rejection of her asylum application in Denmark, the author claims that she and C would be victims of violations by the State party of their rights under articles 6, 7 and 14 of the Covenant. The Optional Protocol entered into force for the State party on 23 March 1976. The author is represented by counsel.

1.2On 9 August 2016, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, requested the State party to refrain from removing the author and C to Morocco while the communication was being examined. On the same date, the State party suspended their removal. The author and C remain in Denmark.

Facts as submitted by the author

2.1In 2010, when she was 26, the author travelled from Morocco to Denmark to work as a childcare provider (au pair). Her family in Morocco is very traditional and conservative. Though she was engaged to a cousin, the author was allowed by her family members to move to Denmark because they needed money and knew the family that was employing her.

2.2In 2011, the author’s residence permit in Denmark expired. She feared returning to Morocco after having had several sexual relationships in Denmark, which was not acceptable in Islamic Moroccan culture. Thus, she remained in Denmark and led a free, Western lifestyle.

2.3In early 2014, when the author became pregnant with C, she kept the pregnancy a secret from her family because she knew that they would disapprove of her lifestyle. When the author gave birth on 20 November 2014, she still had not informed her family of the pregnancy. Immediately after giving birth, the author expressed a desire to surrender C for adoption, fearing negative consequences for them both. However, she later changed her mind.

2.4On the advice of the staff at the hospital where she gave birth, the author applied for asylum in Denmark on 24 November 2014. A few months later, the author contacted her family and informed them of C’s birth. The author’s brothers then threatened to kill the author. Her family members were furious and stated that she had brought shame and dishonour on the family.

2.5On 23 February and 7 October 2015, the Danish Immigration Service interviewed the author. On 9 December 2015, the Immigration Service rejected her asylum application. With the assistance of counsel, the author appealed against the decision. On 4 May 2016, the Refugee Appeals Board held an oral hearing and upheld the decision of the Immigration Service. The domestic authorities reasoned that the author had not substantiated her claim that she would face a level of persecution in Morocco that warranted international protection, taking into account available background information on country conditions. The authorities also expressed the view that the conflict allegedly faced by the author related to private individuals and that the author could seek protection from the authorities in Morocco. The Board further reasoned that the author had not provided a credible account, given inconsistencies between her statements during the asylum proceedings and the information that she had provided at the hospital where she had given birth a few days before filing her asylum claim.

2.6The author maintains that she has exhausted domestic remedies, as the decision of the Refugee Appeals Board is not subject to appeal.

Complaint

3.1The author submits that by removing her and her daughter to Morocco, the State party would violate their rights under articles 6, 7 and 14 of the Covenant. The author could be killed or subjected to torture or to cruel, inhuman or degrading treatment or punishment in Morocco. The lives of the author and C would be at risk there. Moreover, because sexual relations outside of marriage are criminalized in Morocco, the author would not benefit from a fair trial or protection from the courts.

3.2The author disputes the finding of the Refugee Appeals Board that she travelled to Morocco and visited a doctor there during her pregnancy. According to the author, the absence of formal interpretation services at the hospital where she gave birth resulted in confusion with respect to her hospital record. A woman from Somalia interpreted for the author and no one who was present spoke the other’s language. The hospital record also erroneously indicated that the author worked as a cleaner and stated that she had been born in 1990. It would have been impossible for her to have travelled between Denmark and Morocco during her pregnancy, since she did not hold a valid visa for Denmark at that time. The author raised those issues with the Board.

3.3In Morocco, the process for registering a child born outside of marriage is difficult if the father is not present. Children born outside of marriage face discrimination, and their inability to obtain legal documents renders many aspects of life difficult, including access to employment, health care and education. It would be difficult for the author to register C with the authorities without the presence of C’s father.

3.4The author fears that she would not be safe anywhere in Morocco, as her family members would find her. The authorities would not help or protect her from her family, because they would consider the act of having a child outside of marriage to be a crime. The author would be unable to live a respectable life in Morocco; her family would disown her and leave her on her own.

3.5The author cites a report of the Euro-Mediterranean Human Rights Network, entitled “Morocco: report on violence against women”. According to the report, Morocco does not fully protect women from various forms of violence. Although the Constitution of Morocco prohibits discrimination and cruel, inhuman or degrading treatment, the Criminal Code, which is being amended, does not guarantee the effective protection of women against gender-based violence and discrimination.

3.6The author also alleges violations of articles 2, 3, 6 and 27 of the Convention on the Rights of the Child, regarding C’s rights to life, survival and development, and an adequate standard of living. In addition, the author alleges unspecified violations of the Convention on the Elimination of All Forms of Discrimination against Women.

State party’s observations on admissibility and the merits

4.1In its submission of 3 February 2017, the State party notes that on 17 February 2010, the author entered Denmark with a temporary residence permit to work as an au pair. On 26 January 2011, the permit was revoked under section 19 (1) of the Danish Aliens Act. The author’s application for renewal of the permit was denied under section 9 (j) of the Aliens Act.

4.2The State party describes in detail its refugee assessment procedures and cites numerous decisions in which the Committee has stated that it is generally for domestic authorities to evaluate facts and evidence, unless it can be established that the evaluation was clearly arbitrary, manifestly erroneous, or amounted to a denial of justice. The State party considers that the author’s claim under article 14 of the Covenant is inadmissible because it is wholly unsubstantiated and therefore manifestly ill-founded, and is also inadmissible ratione materiae. The author seeks to apply article 14 of the Covenant extraterritorially, and the State party cannot be held responsible for violations of that provision that may be committed by another State outside of the State party’s jurisdiction or territory. Moreover, with respect to the same provision, the removal of the author to Morocco would not cause irreparable harm of the type contemplated by articles 6 or 7 of the Covenant. In addition, the author’s claims under the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women are inadmissible under article 3 of the Optional Protocol because they are incompatible with the Covenant.

4.3The author’s claims under articles 6 and 7 of the Covenant are without merit. The author’s residence permit in Denmark was withdrawn on 26 January 2011 and the author applied for asylum on 24 November 2014. Her stay in Denmark during the interim period was unlawful. It is noteworthy that the author did not apply for asylum during that period of nearly four years, given her allegations that she feared reprisals – as of 2011 – from her family members in Morocco because of her sexual relations in Denmark.

4.4The author’s statements regarding the basis of her asylum claim are not credible. The author has made inconsistent and evasive statements regarding her Moroccan passport, which was issued to her in 2010 for the purpose of her departure from Denmark. According to a police report dated 25 November 2014, the author stated that her passport was with her friend in Valby, Denmark. During her asylum screening interview on 23 February 2015, the author stated that she had lost her passport upon losing her bag in Denmark at some point. She did not know where she had lost her bag and passport. When interviewed by the Danish Immigration Service on 7 October 2015, the author stated that her belongings, including her passport, had been stolen. At the hearing before the Refugee Appeals Board, the author stated that she had lost her passport after leaving her host family in Denmark. She had not tried to contact the Embassy of Morocco in Denmark to apply for a new passport. When reminded of her earlier statement to the police that her passport was with her friend in Valby, the author responded that her belongings were with that friend, but that she had lost a small bag containing her passport.

4.5The State party refers to the findings of the Refugee Appeals Board, which noted the author’s claims that she was from a conservative Muslim family in Morocco and that she had chosen to remain in Denmark after the expiration of her residence permit in 2011 because she was tired of closed traditions and wanted freedom and control of her own life, and because her family would suffer a loss of honour if it were to emerge that she had become sexually active. The Board also noted that after C’s birth, the author claimed to fear returning to Morocco because her brother had threatened over the phone to kill her, and also feared that she would be unable to support C and that people would look down on her. The Board noted the author’s claim that her half-brother had stated in a Facebook message that the author had brought shame on the family. The author stated to the Board that she was no longer able to contact her family members because she had changed her phone number and no longer had their numbers, and because her half-brother had blocked her on Facebook. The Board also noted the author’s statements that her family members were ordinary, not powerful, people. The Board did not accept as credible the author’s claim that her brother had threatened to kill her. The Board noted the author’s inconsistent statements regarding when and whether she had lost her passport.

4.6The Board also cited statements that the author had made at the hospital where she had given birth, according to a medical record that the author’s counsel had provided to the Board with his appeal brief. While the author stated to the Board that the medical record was incorrect, as she had only been able to communicate information to the hospital staff through sign language owing to linguistic barriers, the Board considered that the medical record contained detailed statements that could only have come from the author. According to the medical record, the author stated at the hospital that she had been commuting between Denmark and Morocco, and had attended a prenatal appointment in Morocco during her pregnancy. The Board noted that, while the author had stated that she did not know the identity of C’s father, she had previously stated that C’s father was Moroccan and lived in Norway, that their relations had taken place in Denmark, and that their relationship had ended because of the author’s pregnancy, as the father had not wanted C. The Board noted that the doctor who had treated the author at the hospital indicated that the author’s tourist visa was to expire 18 days after C’s birth. The Board also noted that the author had attended school for 11 years, spoke and wrote French, was not married and was approximately 26 years old when she had travelled by herself to Denmark in 2010. The Board further considered that the author had not substantiated that the potential conflict with her family was of such a magnitude that she would risk being subjected to honour-related violence or an honour killing. The Board also stated that even if it were to accept the author’s assertions as true, her asylum claim would still not be substantiated. The Board noted that reports on Morocco indicated that there was not a culture of honour killings, that many women lived alone, and that women were able to purchase and rent homes. Reports further indicated that, throughout Morocco, there were organizations working to improve conditions for mothers who were not married and offer them legal counselling and job training. Throughout the country, including in Casablanca, there were also crisis shelters where women with children born outside of marriage could receive temporary accommodation and assistance to have their child registered with the authorities and to obtain identification documents. The Board stated that it had considered available background information, including two reports issued by Landinfo (the Norwegian Country of Origin Information Centre). Those reports are entitled, “Morocco: the legal and social position for a woman who has had a child out of wedlock” (4 June 2013) and “Morocco: violence against women” (18 July 2014). Lastly, the Board considered that the socioeconomic challenges that the author alleged she would face in Morocco were difficult but were not of such a nature as to warrant international protection.

4.7The State party reiterates the content of the Landinfo reports cited in the decision of the Refugee Appeals Board (see para. 4.6 above), regarding conditions for women in Morocco. The report that the author cited in her communication, by the Euro-Mediterranean Human Rights Network, had already been evaluated by the Refugee Appeals Board before it rendered its decision on 4 May 2016.

4.8The author had an opportunity to present her views to the Refugee Appeals Board during an oral hearing and in writing, with the assistance of legal counsel. The Board comprehensively assessed her case. The author’s communication reiterates the information that she provided during the domestic asylum proceedings. The author has not identified any irregularity in the decision-making process or any risk factors that the Board failed to properly consider. The author has not established substantial grounds for believing that she and C would risk being killed or subjected to torture or cruel, inhuman or degrading treatment or punishment in Morocco.

4.9The State party provides detailed statistics regarding the success rates of asylum applications in Denmark during the period 2013-2015. In 2015, for example, the Immigration Service granted asylum to 85 per cent of applicants (9,920 out of 11,649), while the Refugee Appeals Board granted 21 per cent of asylum appeals that year (283 out of 1,335).

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

5.1In her comments of 20 September 2019, the author maintains that the communication is not incompatible with the provisions of the Covenant. The State party has not explained its argument on that issue. Regarding the extraterritorial application of article 14 of the Covenant, the State party cannot waive its responsibilities under that provision, even if the alleged violation does not cause irreparable harm such as that contemplated by articles 6 or 7 of the Covenant.

5.2The author’s statements concerning the substance of her claims under articles 6 and 7 of the Covenant were coherent and consistent. Her family in Morocco threatened to kill her because she had given birth to a child outside of marriage. She also fears that she will not be able to take care of her daughter in Morocco, and that they will be looked down upon there. Nothing casts doubt upon the author’s credibility. With respect to her statements at the hospital, the author is fragile and different factors could explain why the hospital transcripts contain information that is unfavourable to her claims.

5.3There is a difference between daily life in Denmark and in Morocco. The author has had several sexual relationships in Denmark and has a liberated lifestyle. Within her conservative family, sex before marriage is forbidden. Morocco would not be able to protect the author from her family. While Morocco is working to improve conditions for mothers who are not married, the reality is different. The fact that the author was ready to give her child away when she learned that she would be a mother attests to the massive pressure that she was facing.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

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

6.3The Committee observes that the State party has not contested the author’s argument that she exhausted all available domestic remedies, as required under article 5 (2) (b) of the Optional Protocol. In that regard, the Committee notes that the author obtained a final, negative decision on her asylum application from the Refugee Appeals Board. The Committee also notes the State party’s observation that the communication contains the same assertions that the author raised during domestic proceedings. Accordingly, and in the absence of an objection by the State party, the Committee considers that article 5 (2) (b) of the Optional Protocol does not constitute an obstacle to the admissibility of the communication.

6.4With respect to the author’s claims under the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women, the Committee recalls that under article 1 of the Optional Protocol, its competence is limited to the examination of communications claiming a violation of rights under the Covenant. Alleged violations of other treaties or agreements thus fall outside of the scope of the Committee’s competence. The Committee therefore considers that those claims are inadmissible ratione materiae under article 3 of the Optional Protocol.

6.5The 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 referred 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 (para. 12). The Committee further recalls that the risk must be personal, and that there is a high threshold for providing substantial grounds to establish the existence of a real risk of irreparable harm. In making such an assessment, all relevant facts and circumstances must be taken into consideration, including the general human rights situation in the author’s country of origin.

6.6With respect to the author’s claims in her own name under articles 6 and 7 of the Covenant, the Committee notes her assertion that when she informed her family in Morocco of C’s birth in 2014 or 2015, her brothers threatened to kill her. The Committee recalls that the obligation not to remove an individual contrary to a State party’s obligations under the Covenant applies at the time of removal and that, in cases of imminent deportation, the material point in time for assessing that issue must be the point at which the Committee examines the case. The Committee notes that the author did not provide in her communication any further information on the threats from her brothers. The Committee notes the author’s claim that she remained in Denmark after the expiration of her residence permit in 2011, and that three years then elapsed before she became pregnant, in 2014. The Committee notes that the author had applied for asylum shortly before receiving the alleged threats from her brothers, and has not described any concrete incidents before 2014 that would have caused her to fear that her family members would seriously harm her owing to her sexual activity outside of marriage. The Committee also notes that eight years have passed since the alleged threats, rendering the risk of harm more temporally remote. In addition, the Committee notes that the author stated to the Refugee Appeals Board in 2016 that it was no longer possible for her to contact her family members, since she had changed her phone number and no longer had their numbers after receiving alleged threats from her brother and half-brother. The Committee notes, furthermore, that the author has not provided information that could indicate that the potential conflict with her family was of such a magnitude that she would risk being subjected to honour-related violence or an honour killing if she were returned to Morocco at the present time. In view of the above, the Committee considers that the author has not provided sufficient information to substantiate her assertion that she would face a real and personal risk of being subjected by her family members to an honour killing or to treatment contrary to article 7 of the Covenant.

6.7With respect to the author’s claim that she would face social and economic hardship in Morocco, the Committee takes note of the author’s assertion that her family in Morocco would disown her and leave her on her own if she returned to the country. The Committee notes that the author is 38 years old, alleges to have been living independently from her family in Morocco for over 12 years, and has stated that she ended contact with her family in 2014 or 2015. The Committee considers that the author has not sufficiently substantiated, for the purpose of admissibility, that she would face a real and personal risk of experiencing social or economic hardship of a degree of severity that would deprive her of her rights under articles 6 or 7 of the Covenant.

6.8The Committee further notes the author’s claims that the Refugee Appeals Board erred in its assessment of her appeal by relying on incorrect statements contained in a medical record, regarding the author’s alleged travel to Morocco and consultation of a doctor there during her pregnancy. The Committee recalls its jurisprudence according to which considerable weight should be given, in the evaluation of claims of irreparable harm, to the assessment conducted by the State party, and it is generally for the organs of the States parties to the Covenant to review and evaluate facts and evidence in a particular case 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.

6.9The Committee notes that the author’s counsel provided with his appeal brief the aforementioned medical record to the Refugee Appeals Board, thus inviting its assessment in the context of the author’s appeal. The Committee notes that the Board evaluated in a reasoned decision the author’s claim that she would be killed or subjected to violence in Morocco by members of her family because of her status as a single woman who had engaged in sexual relations and given birth. The Committee observes that the Board noted in its decision that the author disputed the statement contained in the hospital record that she had travelled to Morocco during her pregnancy and had consulted a doctor there. The Board noted the author’s oral statements regarding the language difficulties that she had encountered in communicating with the staff of the hospital where she gave birth. However, regarding the author’s claims that she had lost her passport and could not have travelled to Morocco because she did not have a visa, the Board noted that the doctor who treated the author at the hospital had reported that the author’s tourist visa was to expire 18 days after C’s birth. With respect to the author’s claim that the hospital record erroneously stated her year of birth, the Board noted the author’s statements that she had not brought any form of identification to the hospital, and that her date of birth and civil registration number (as stated in the hospital record) had been extracted from the information in her visa. Regarding the author’s claim that the hospital erroneously recorded her occupation as a cleaner, the Committee notes that she stated to the Immigration Service that she had worked as a cleaner for five years. The Committee observes that the issues of whether the author was travelling to Morocco during her pregnancy and had a tourist visa when she applied for asylum, as indicated in the hospital record, are factual matters, and considers that the author has not provided sufficient elements to substantiate her claim that the Board’s assessment of those issues was erroneous or irregular.

6.10The Committee also notes the statement by the Refugee Appeals Board that, even if it were to accept as true the author’s assertions regarding a risk of harm from her family members, her asylum claim would still not be substantiated. In that respect, the Committee notes the finding of the Board that country reports indicate an absence of a culture of honour killings in Morocco and the existence of crisis shelters and organizations in Morocco that provide temporary accommodation and administrative assistance to help register and obtain identification documentation for children born outside of marriage. The Committee notes that the author’s arguments regarding risk factors – including socioeconomic conditions for single mothers and possible stigma towards C – were duly considered by the Board, and that the author was heard by the Board during an oral hearing at which she was represented by counsel. With reference to its findings in paragraphs 6.6-6.9 and to the detailed findings of the Board in its decision (see para. 4.5 above), the Committee considers that while the author disagrees with the factual findings of the Board regarding her credibility and conditions in Morocco for similarly situated individuals, she has not provided elements to sufficiently substantiate that the assessment of the domestic authorities was clearly arbitrary, manifestly erroneous or amounted to a denial of justice.

6.11In the light of the foregoing factors, the Committee considers that the author has not sufficiently substantiated her claims under articles 6 or 7 of the Covenant and thus declares those claims inadmissible under article 2 of the Optional Protocol.

6.12Regarding the author’s claims on behalf of her minor daughter, the Committee notes that the author has alleged that C would face discrimination and difficulties in obtaining legal documents necessary for receiving public services. The Committee observes with concern that, while domestic legislation in Morocco permits recognition of children born to mothers who are not married, credible reports indicate that single mothers in Morocco may face difficulties or delays when registering their children with the civil authorities, and may also face discrimination in society and with respect to paternal filiation. However, the Committee notes that the author has not commented on the finding of the Refugee Appeals Board that various organizations provide assistance to help single women register and obtain identification documents for their children. While not underestimating difficulties that may be faced by children of single mothers in Morocco, the Committee considers that the author has not provided sufficient elements to substantiate that C would face a real and personal risk of experiencing treatment in Morocco of the type contemplated under articles 6 or 7 of the Covenant. The Committee therefore considers that this aspect of the communication is insufficiently substantiated and is therefore inadmissible under article 2 of the Optional Protocol.

6.13The Committee notes the State party’s assertion that the author’s claim under article 14 of the Covenant is inadmissible ratione materiae and because it is wholly unsubstantiated. The Committee notes the author’s argument that the State party would violate her rights under article 14 by removing her to Morocco because she would not benefit from a fair trial or protection from the courts there owing to her sexual activity outside of marriage in Denmark. The Committee further notes that the author has not provided any further information, evidence or explanation on how her rights under article 14 of the Covenant would be violated by the State party through her removal to Morocco in a manner that would pose a substantial risk of irreparable harm such as that contemplated under articles 6 and 7 of the Covenant. The Committee therefore considers that the author’s claim under article 14 of the Covenant is insufficiently substantiated and is inadmissible under article 2 of the Optional Protocol.

6.14The Committee recalls that it remains the responsibility of the State party to continuously assess the risk that any individuals would face in case of return to another country before the State takes any final action regarding their deportation or removal. In the present case, the Committee considers that the author’s claims under articles 6, 7 and 14 of the Covenant are insufficiently substantiated and are therefore inadmissible under article 2 of the Optional Protocol.

7.The Committee therefore decides:

(a)That the communication is inadmissible under articles 2 and 3 of the Optional Protocol;

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