Inadmissibility decision; Subjects: CIVIL AND POLITICAL RIGHTS, DENMARK; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.26-00417 (E) 230126 230126
Human Rights Committee
Decision adopted by the Committee under the Optional
Protocol, concerning communication No. 3325/2019*, **, ***
Communication submitted by:
N.E. (represented by counsel, Finn Roger
Nielsen)
Alleged victim:
The author
State Party:
Denmark
Date of communication:
15 March 2019 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State Party on 20 March 2019 (not issued in
document form)
Date of adoption of decision:
27 October 2021
Subject matter:
Family reunification of the author with her mother
Procedural issue:
Exhaustion of domestic remedies
Substantive issues:
Children’s rights; family rights
Articles of the Covenant:
23 and 24
Articles of the Optional Protocol:
2 and 5 (2) (b)
1.1
The author of the communication is N.E., a national of Morocco born in 1997 and
currently residing in Denmark. She claims that the State Party has violated her rights under
articles 23 and 24 of the Covenant. The Optional Protocol entered into force for the State
Party on 23 March 1976. The author is represented by counsel.
1.2
On 20 March 2019, when registering the present communication, the Committee,
acting through its Special Rapporteurs on new communications and interim measures,
decided not to request interim measures under rule 94 of its rules of procedure.
* Adopted by the Committee at its 133rd session (11 October–5 November 2021).
** The following members of the Committee participated in the examination of the communication:
Wafaa Ashraf Moharram Bassim, Yadh Ben Achour, Arif Bulkan, Furuya Shuichi, Carlos Gómez
Martínez, Marcia V.J. Kran, Duncan Laki Muhumuza, Photini Pazartzis, Vasilka Sancin, José Manuel
Santos Pais, Soh Changrok, Kobauyah Tchamdja Kpatcha, Hélène Tigroudja, Imeru Tamerat Yigezu
and Gentian Zyberi. In accordance with article 108 of the Committee’s rules of procedure, Mahjoub
El Haiba did not participate in the examination of the communication.
*** A joint opinion by Committee members Wafaa Ashraf Moharram Bassim and José Manuel Santos
Pais (dissenting) and individual opinions by Hélène Tigroudja (dissenting) and Duncan Laki
Muhumuza (dissenting) are annexed to the present decision.
United Nations
CCPR/C/133/D/3325/2019
International Covenant on
Civil and Political Rights
Distr.: General
26 January 2026
Original: English
CCPR/C/133/D/3325/2019
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GE.26-00417
Facts as submitted by the author
2.1
The author was born in 1997 in Morocco. The author’s father, H.M., and mother, H.B.,
separated shortly after she was born; she lived with her father and her father’s family from
the age of one month. After the death of her father, in 2010, she lived with her paternal aunt,
T.E. The author did not have contact with her mother until the summer of 2013.
2.2
The author’s mother, H.B., married a citizen of Denmark on 8 May 2002 and entered
Denmark on 1 October 2002. H.B. was granted a residence permit in Denmark; she had two
children with her Danish husband. She visited Morocco regularly, but was prevented, by
H.M.’s family, from seeing her daughter1 until the summer of 2013, when H.M.’s sister
informed her of the death of H.M. and the sister’s wish to transfer the custody of the author
to H.B. Subsequently, H.B. travelled to Morocco to have a passport issued for the author and
to submit a visa application for the author to enter Denmark. The author obtained the visa
and entered Denmark on 18 November 2014.
2.3
On 5 December 2014, an application for family reunification was submitted to the
Danish Immigration Service. On 18 May 2015, the application was rejected on the basis that
no special grounds to grant a residence permit could be established under the Aliens
(Consolidation) Act, that denial of residence did not violate the respect for the unity of the
family, or the best interests of the author, that the author’s mother did not submit the
application without delay, since she had re-established contact with her daughter during the
summer of 2013, but had applied for family reunification on 5 December 2014 only, and that
there was no special relationship between the mother and the daughter after they had lived
apart for more than 16 years, regardless of the alleged fact that the mother had been prohibited
by her late husband’s family from having contact with her daughter. The Immigration Service
also found that the author had family in Morocco who could take care of her and that, as the
author was over the age of 17 at the time of the application, her needs for care and parental
love were less than that of a younger child.
2.4
On 21 December 2015, the Immigration Appeals Board upheld the decision of the
Immigration Service. The decision of the Board was not delivered to the author’s counsel in
compliance with the applicable procedural regulations; instead, it was sent to the author
herself. Therefore, the author requested that her case be reconsidered, on the basis that the
decision had not been delivered to her in compliance with the applicable procedural
regulations. In her request, the author also asked the Board to reconsider its decision on the
basis of the jurisprudence of the Court of Justice of the European Union,2 the European Court
of Human Rights3 and the Human Rights Committee,4 which the author considered relevant
to her case.
2.5
The Immigration Appeals Board reconsidered the case and, in its decision dated
1 November 2016, held that there was no reason to reconsider the decision of the Board dated
21 December 2015, given that the author had failed to demonstrate new information that
would necessitate a change to the Board’s decision, that the author’s case differed from the
aforementioned cases before the Court of Justice of the European Union, the European Court
of Human Rights and the Human Rights Committee, in particular because N.E. was 17 years
and 8 months of age and thereby close to becoming an adult at the time of the application for
family reunification, and that she had not had contact with her mother until the summer of
2013, when she was 16 years of age.
Complaint
3.1
The author claims that the rejection of her application for a residence permit for the
purpose of family reunification and the order for her to leave Denmark constitutes a violation
1 The author submits that, as a child, she was “in every way prevented” from having contact with her
mother, owing to both the “traditional position” of the author’s father and his family, and the parents’
divorce.
2 Genc v. Integrationsministeriet, Case C‑561/14, Judgment, 12 April 2016.
3 Biao v. Denmark, Application No. 38590/10, Judgment (Second Section), 25 March 2014; and Sen v.
Netherlands, Application No. 31465/96, Judgment, 21 December 2001.
4 El-Hichou v. Denmark (CCPR/C/99/D/1554/2007).
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by the State Party of her rights to family life and protection, as set out in articles 23 and 24
of the Covenant. The author also claims that the State Party violated her rights under articles 3
and 9 of the Convention on the Rights of the Child.
3.2
The author claims that her case involves extraordinary circumstances because she was
separated from her mother after her parents divorced, when she was only one month old, and
her mother was prevented from contacting her for many years. The author argues that neither
she nor her mother should be blamed for the previous lack of contact, in view of these
extraordinary circumstances. The author also argues that her mother’s documented health
conditions, such as serious heart problems, which she had experienced for several years, as
well as her family responsibilities in relation to her two small children from her marriage in
Denmark, had prevented her from initiating a court case or other measures in Morocco to
establish contact with her daughter. The author further claims that the State Party did not
balance its interests in regulating its immigration policy against its obligation to respect the
author’s rights to family life and protection.
3.3
The author argues that, while she was 16 years old when she re-established contact
with her mother, and 17 years and 8 months when an application for family reunification was
submitted, teenagers also need guidance, support and parental love, which cannot be
substituted with a possible connection to distant relatives or a national childcare system in
the author’s country of origin.
3.4
The author submits that all available domestic remedies have been exhausted, as the
decision of the Immigration Appeals Board of 1 November 2016 cannot be appealed
administratively. The author claims that the judicial review procedure for appeals of
decisions of the Immigration Appeals Board is not accessible or effective, given that her
application for free legal aid was rejected, and that launching a judicial review before the
court does not have the effect of suspending her pending deportation.
State Party’s observations on admissibility and the merits
4.1
On 20 September 2019, the State Party submitted its observations on the admissibility
and merits of the author’s communication.
4.2
The State Party notes that the Immigration Service rejected the author’s application
for family reunification by virtue of section 9c (1) of the Aliens (Consolidation) Act. The
State Party also notes that the author appealed the decision of the Immigration Service to the
Immigration Appeals Board, which informed the author that the appeal did not grant
suspensive effect in regard to the deadline for departure, and that the author had to leave
Denmark immediately, in compliance with the decision of the Immigration Service. On
21 December 2015, the Board upheld the decision, and on 1 November 2016, it rejected a
request to reopen and reconsider the case.
4.3
The State Party submits that, pursuant to section 63 of the Constitution of Denmark,
decisions of the Immigration Appeals Board by which an application for residence is refused
under section 9 (1) (i), with reference to section 9 (8), of the Aliens (Consolidation) Act may
be brought before the Danish courts. Therefore, the State Party states that the author has had
the opportunity to bring the 21 December 2015 and 1 November 2016 decisions of the Board
before the Danish courts. Therefore, the State Party submits that, by having refrained from
bringing the decisions of the Board before the courts, the author has failed to exhaust all
available domestic remedies and that therefore the communication should be considered
inadmissible pursuant to article 5 (2) (b) of the Optional Protocol. The State Party further
observes that the fact that the author has been refused free legal aid cannot lead to a different
outcome, and invokes the jurisprudence of the Committee that financial considerations and
doubts about the effectiveness of domestic remedies do not absolve an author from
exhausting domestic remedies.5
4.4
The State Party submits that the Committee is competent only to hear complaints
regarding violations of the Covenant, in accordance with articles 2 and 3 of the Optional
5 P.S. v. Denmark (CCPR/C/45/D/397/1990), para. 5.4; Faurisson v. France (CCPR/C/58/D/550/1993),
para. 6.1; and Warsame v. Canada (CCPR/C/102/D/1959/2010), para. 7.6.
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Protocol. The State Party acknowledges its obligation to take into account the international
obligations of Denmark, including those arising from the Convention on the Rights of the
Child, when exercising its powers under the Aliens (Consolidation) Act. However, it notes
that the Human Rights Committee does not have competence to decide whether a State has
violated the Convention on the Rights of the Child.
4.5
If the Committee finds no basis for considering the communication inadmissible
pursuant to article 5 (2) (b) of the Optional Protocol, the State Party contends that the author
has failed to establish a prima facie case for the purpose of admissibility of her
communication under articles 23 and 24 of the Covenant, and that the communication should
therefore be considered inadmissible as it is manifestly unfounded. In the alternative, the
State Party submits that the author’s claims are without merit, as it has not been established
that the decisions made by the Immigration Appeals Board on 21 December 2015 or
1 November 2016 are in violation of articles 23 and 24 of the Covenant.
4.6
As regards the author’s claims regarding the violation of articles 23 and 24 of the
Covenant, the State Party submits that the decisions by the Immigration Appeals Board were
made pursuant to section 9c (1) of the Aliens (Consolidation) Act concerning, inter alia,
children of Danish residents who fall outside the scope of section 9 (1) (ii) of the Act. The
State Party further submits that, pursuant to section 9c (1) of the Aliens (Consolidation) Act,
approval of family reunification requires exceptional reasons for persons who are 15 years
of age or older. The State Party finds that the Board took all of the facts submitted by the
applicant into account in its assessment. It notes that the Board attached importance to, inter
alia, the age of the applicant, her attachment to Denmark and Morocco, her situation if
returned to Morocco, her contact with her mother and her possibility of remaining in contact
with her mother if she were returned to Morocco. The State Party also notes that the author
was 17 years of age at the time of the application, that she had turned 18 by the time of the
decision, and thus had become legally competent, and that she was born, and had lived her
whole life, in Morocco, where she had attended school for 11 years.
4.7
The State Party submits that no positive obligation can be derived from articles 23 and
24 of the Covenant for countries other than the country of which the child is a citizen, as
regards securing residence and the continued upbringing of the child. Neither do the articles
include an independent immigration right for a child for the purpose of obtaining better living
conditions in any country, even when the child has some connection to the country as his or
her temporary country of residence.
4.8
The State Party submits that in general children are not considered to have developed
an independent attachment to Denmark until after six to seven years of uninterrupted stay in
the country with a residence permit during which he or she has attended a Danish institution
or school. The State Party finds that applying the principle of the best interests of the child
does not necessarily r entail the issuance of a residence permit, unless the case presents
extraordinary circumstances.
4.9
The State Party reiterates that the author’s mother, H.B., did not see the author during
a period that extended from one month after the birth of the author, in 1997, to 2013, that it
was the choice of H.B., solely, to apply for residence in Denmark in 2002 and leave the author
in Morocco, and that H.B. did not initiate legal steps to re-establish custody or contact with
the author until she found out in 2013 – at which point the author was 16 years of age – that
the author’s father had died in 2010. The State Party also notes that H.B. did not apply for
reunification with the author until 12 years after she had travelled to Denmark and one and a
half years after contact between the two had been re-established.
4.10
The State Party finds that H.B.’s illness creates an obligation not for Denmark, but
rather for the country of which the author is a national, to ensure the conditions of upbringing.
The State Party also notes that it has not been established that H.B.’s health condition was of
such a nature that she was unable to initiate legal measures in Morocco to get custody of the
author at an earlier point, considering that the surgery took place in 2010 and H.B.’s health
condition improved such that she has been able to work ever since.
4.11
The State Party submits that the author has never received a residence permit in
Denmark, and that she has stayed in Denmark on a visitor’s visa and procedural stays, and
illegally The State Party finds that the author is not without a caregiver in her home country,
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considering that the aunt with whom she had lived before is still living in Morocco and that
the author also has other family members. The State Party also notes that the author’s mother,
H.B., has visited the author in Morocco on several occasions and submits that nothing
prevents the author and her mother from continuing to enjoy family life through visits, as
they have since re-establishing contact.
4.12
The State Party finds that the present case is not comparable to the other cases referred
to by the author in her communication. In regard to the author’s reference to the Views of the
Committee in El-Hichou v. Denmark, the State Party notes that the two cases are not
comparable, since the author in the case of El-Hichou v. Denmark was 11 and a half years of
age at the time of his application for family reunification and had had regular contact with
his father, through visits, letters and phone calls. The State Party submits that the allegation
that the mother had been prohibited from having contact with her daughter by her late
husband’s family does not change this assessment. The State Party notes that the judgments
in Genc v. Integrationsministeriet, of the Court of Justice of the European Union, and Biao
v. Denmark, of the European Court of Human Rights, are also not comparable to the present
case, considering that the former case concerns the approval of resident permits for children
under 15 years of age, and the latter concerns the affiliation requirements for family
reunification with a spouse. Finally, the State Party notes that the case of Sen v. Netherlands,
of the European Court of Human Rights, is not comparable to the present case, considering
that the child concerned in that case was 9 years old when the application for family
reunification was submitted.
4.13
The State Party concludes that the Immigration Appeals Board considered the above
factors and concluded that it would not be in violation of the international obligations of
Denmark to deny family reunification. The State Party reiterates that the author was 17 years
and 8 months of age at the time of the application for family reunification, that she did not
have contact with her mother until the age of 16, and that, until that age, she had lived her
entire life in Morocco. The State Party submits that the rejection of the author’s application
for a residence permit pursuant to section 9c (1) of the Aliens (Consolidation) Act was not in
violation of articles 23 and 24 of the Covenant, and that the author and her mother, H.B., can
continue to enjoy family life through visits, as they have done previously.
Author’s comments on the State Party’s observations on admissibility and the merits
5.1
On 5 February 2020, the author submitted her comments on the State Party’s
observations on the admissibility and merits of the communication.
5.2
In her comments, the author submits that H.B. travelled to Morocco in July 2011,
January and October–November 2012, January and October 2013, January–February, May,
July–August and November 2014 and January 2015, noting that the frequency of her visits
increased after re-establishing contact with the author in the summer of 2013.
5.3
The author submits that she was able to apply for the issuance of her passport only
after her custody had been transferred from her aunt to her mother, and after the issuance of
her visa to enter Denmark; H.B. visited Morocco in May 2014 and July–August 2014 to
follow up on her daughter’s visa application. The author thus claims that it took time to have
the necessary documentation issued by the authorities, which delayed her application for a
residence permit for the purpose of family reunification.
5.4
In relation to the State Party’s observations on the admissibility of the communication,
the author reiterates her previous arguments on the admissibility of the case and insists that
article 5 (2) (b) of the Optional Protocol has to be assessed in the light of whether the specific
domestic remedies that were claimed by a State Party to be available were effective and
available to the author in reality.
5.5
The author submits that the Immigration Appeals Board is an independent, collegial,
quasi-judicial administrative body that considers appeals against immigration-related
decisions of administrative authorities, except those relating to asylum-related decisions,
which are dealt with by the Refugee Appeals Board. The author notes that the Immigration
Appeals Board consists of a judge, a representative from the ministry responsible for
immigration and integration, and a representative of the Bar association, and that the Board
can be compared to a specialized court, given that it can call in an applicant for an interview
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in order to obtain information and consider arguments. The author further notes that until
2018, certain cases of family reunification for children could be appealed automatically and
that lawyer was appointed free of charge to assist the minor and the parents; in 2018, that
system was abandoned and the Immigration Appeals Board took over court cases relating to
particular cases of family reunification. The author also submits that decisions of the
Immigration Appeals Board can be challenged in the courts only for a limited set of legal
reasons, including significant procedural errors, and that the general assessments of the facts
and the merits in the case cannot be reviewed by the courts.
5.6
The author submits that the cases referred to by the State Party in its observations on
the admissibility of the communication are not relevant to the present case, considering that
these cases did not concern decisions made by a highly specialized, independent, collegial
and quasi-judicial administrative body. 6 The author invokes the jurisprudence of the
Committee that the requirement of exhaustion of domestic remedies does not render a
communication inadmissible if the specific remedy in a case does not have any prospect of
offering effective redress, and refers to cases involving decisions of the Danish Refugee
Appeals Board.
5.7
With respect to the merits of the case, the author claims that the provisions of the
Aliens (Consolidation) Act regarding the issuance of residence permits for the purpose of
family reunification are discriminatory; namely, they distinguish between children below
15 years of age, for whom no exceptional reason is required, and children who are 15 years
of age or older, for whom an exceptional reason is required. The author also claims that the
authorities did not strike a proper balance between the best interests of the child and the
requirement of exceptional reasons for family reunification. She therefore claims that the
requirement under the Aliens (Consolidation) Act that provides that family reunification can
be approved for children who are 15 years of age or older only for exceptional reasons is
incompatible with articles 23 and 24 of the Covenant, as such exceptional reasons are not
defined in law and set a foundation for disproportionately strict interpretation.
5.8
The author reiterates the arguments she raised in her submission of 15 March 2019
and contends that it was not possible to act faster in terms of filing a family reunification
request. The author also reiterates that H.B. has a well-established family life in Denmark
with her husband and two children from that marriage, who are attending school in Denmark.
The author concludes that the decision not to allow her reunification with H.B. in Denmark
would constitute an interference with her family life contrary to article 23, and a violation of
article 24 in the form of failure to provide the author with the necessary measures of
protection of a minor, which is applicable until the age of 18.
5.9
The author additionally submits that both she and H.B. are the authors of the
communication,7 as they both find that their rights under articles 23 and 24 have been violated
by the State Party.
State Party’s additional observations
6.1
On 27 June 2016, the State Party submitted additional observations on the author’s
comments.
6.2
In relation to her assertion that both N.E. and her mother H.B. should be considered
authors of the communication, the State Party observes that this was not reflected in the initial
communication from the author, dated 2 June 2017 and submitted on 15 March 2019. The
State Party submits that, for this reason, only N.E. was regarded as the author of the
communication in the State Party’s observations dated 20 September 2019. The State Party
maintains that even if H.B. were to be considered a co-author of the complaint, there has not
been a violation of articles 23 and 24 of the Covenant in relation to either N.E. or H.B.
6.3
The State Party submits that the Immigration Appeals Board is an independent,
collegial, quasi-judicial administrative body, and that its decisions cannot be appealed to any
6 The author seems to refer to the cases in footnote 6 above.
7 This is the first time that the author refers to two authors of the present communication. The initial
complaint was submitted by one person: N.E.
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other administrative authority.8 However, they can be brought before the Danish courts,
which have the authority to adjudicate any matter concerning the limits of the competence of
a public authority and the legitimacy of its decisions.9 The State Party admits that while the
case is pending before the courts, the plaintiff must comply with the decision, as the court
proceedings do not delay the effect of the decision made by the administrative body unless
the court decides otherwise. The State Party notes the difference between the decisions of the
Refugee Appeals Board and the Immigration Appeals Board, namely, that decisions of the
former cannot be appealed to the Danish courts, whereas decisions of the latter can. Therefore,
the State Party maintains that the author could have brought the case before the domestic
courts, but has chosen not to.
6.4
The State Party submits that the legislative amendments made to the Aliens
(Consolidation) Act in 2018 are not relevant to the author’s case, as cases such as the present
one have never been subject to the special procedure provided for under previous legislation,
which had allowed for exceptionally easy access to court for children. The State Party rejects
the author’s claims that in 2018 the Immigration Appeals Board took over appeals concerning
children in order to relieve the courts. Although the State Party acknowledges that legislators
had taken into account the possibility of having cases decided by the Immigration Appeals
Board when they decided to revoke the exceptionally easy access to court for children in
cases under the special procedure, it notes that the amendment to the Aliens (Consolidation)
Act in 2018 did not preclude bringing the cases before the courts through the regular
procedure. The State Party therefore maintains that the author has not exhausted all available
domestic remedies.
6.5
With regard to the author’s submission concerning the merits of the communication,
the State Party submits that the distinction set out under the Aliens (Consolidation) Act
regarding family reunification of children under and over the age of 15 is not illegal, unclear
or discriminatory, and that it does not contravene articles 23 or 24 of the Covenant. The State
Party submits that such an age requirement is a legitimate way to secure the State Party’s
interests with regard to ensuring children’s integration into society, considering that their age
of arrival in Denmark is a significant factor in their ability to finish their education in
Denmark and be able to provide for themselves. 10 The State Party notes that when the
Immigration Appeals Board makes a decision based on section 9c (1) of the Aliens
(Consolidation) Act, it considers all the information submitted in the case, and takes into
account the State Party’s legal obligations in both national and international law, including
the Covenant and case law, including in relation to family reunification and the best interests
of the child. The State Party observes that in some cases where the child is 15 years of age or
older, the best interests of the child may lead to the obligation to grant a residence permit to
that child.
6.6
In relation to the author’s comments that the State Party has not struck a proper
balance between the best interests of the child and the requirement of exceptional reasons for
family reunification, the State Party submits that the Immigration Appeals Board evaluated
the case, attaching importance to all the facts submitted by the author, inter alia, the author’s
age, her upbringing, her cultural ties to both Denmark and Morocco, her family ties to her
8 Aliens (Consolidation) Act, sect. 52a (8).
9 Constitution, sect. 63.
10 The State Party refers to European Court of Human Rights, Tuquabo-Tekle and others v. Netherlands,
Application No. 60665/00, Judgment, 1 December 2005, para. 44; and European Court of Human
Rights, Berisha v. Switzerland, Application No. 948/12, Judgment, 30 July 2013, para. 51. The State
Party also refers to article 4 (1) and (6) of European Council Directive 2003/86/EC of 22 September
2003, under which the member States of the European Union may request that an application
concerning family reunification of minor children has to be submitted before the age of 15, and that
they may verify whether a child meets a condition for integration if the child is over the age of 12 and
arrives independently from the rest of his or her family; the State Party also notes that the directive is
not in force in Denmark owing to Danish legal reservations thereto. Finally, the State Party refers to
Court of Justice of the European Union, European Parliament v. Council of the European Union,
Case No. C‑540/03, Judgment, 27 June 2006, in which the Court held that the age requirement under
article 4 (6) of European Council Directive 2003/86/EC did not run counter to the right to family life
or the obligation to have regard to the best interests of children or the principle of non-discrimination
on the grounds of age.
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family in both Denmark and Morocco, and her situation if she were to return to Morocco.
The State Party also notes that, since reestablishing contact, the author and H.B. have been
enjoying family life through visits, as H.B. has visited the author several times in Morocco,
and that the author can continue enjoying family life through visits in Denmark and Morocco.
6.7
The State Party submits that a child can be considered to have an independent
attachment to Denmark if the child has had a legal and uninterrupted stay in Denmark for six
to seven years, during which he or she has attended a Danish institution or school. The State
Party observes that the author entered Denmark on a tourist visa and since then has been
living with H.B. and H.B.’s family in Denmark, which does not give her an independent
attachment to Denmark, considering that she has never had a residence permit in Denmark
and that she has illegally remained in Denmark, relying on a tourist visa and procedural stays.
The State Party maintains that a long-term illegal residence cannot in itself lead to the
granting of a residence permit.
6.8
The State Party maintains that, should the Committee find the communication
admissible, it has not been established that there are substantial grounds for asserting that the
rejection of the author’s application for residence permit constitutes a violation of articles 23
and 24 of the Covenant, and that the Immigration Appeals Board adequately took into
account the information provided by the author in the present case.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before 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.
7.2
The 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.
7.3
The Committee notes the author’s statement that both N.E. and H.B. are the authors
of the communication, as they both find that their rights under articles 23 and 24 have been
violated by the State Party. The Committee also notes the State Party’s statement that this
was not reflected in the author’s communication dated 2 June 2017 and submitted on
15 March 2019, and that for this reason, only N.E. was regarded as the author of the
communication in the State Party’s observations dated 20 September 2019. The Committee
recalls that rule 99 (b) of its rules of procedure provides that a communication should
normally be submitted by the individual personally or by that individual’s representative. In
the present case, the Committee notes that N.E. was regarded as the sole author of the initial
submission, dated 2 June 2017 and submitted on 15 March 2019, and that only the alleged
victim, N.E., had duly issued power of attorney to authorize counsel to represent her before
the Committee. Accordingly, the Committee considers N.E. as the sole author of the
communication.
7.4
The Committee observes that, under article 5 (2) (b) of the Optional Protocol, it is
precluded from considering a communication unless it has been ascertained that domestic
remedies have been exhausted.
7.5
The Committee notes the State Party’s challenge to the admissibility of the
communication on the grounds that domestic remedies have not been exhausted. The
Committee further notes the State Party’s argument that court proceedings do not delay the
effect of the decision made by the administrative body unless the court decides otherwise.
The Committee notes that the author has exhausted administrative procedures only and did
not institute proceedings before a court to challenge the Immigration Appeals Board
decisions of 21 December 2015 and 1 November 2016, in which her application for family
reunification had been refused. In this connection, for the purpose of article 5 (2) (b) of the
Optional Protocol, the Committee recalls that domestic remedies must not only be available,
CCPR/C/133/D/3325/2019
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but also effective, which also depends on the nature of the alleged violation.11 It also recalls
that an applicant must make use of all judicial or administrative avenues that offer a
reasonable prospect of redress.12 The Committee recalls that domestic remedies need not be
exhausted if they objectively have no prospect of success, that is, where under applicable
domestic laws the claim would inevitably be dismissed, or where established jurisprudence
of the highest domestic tribunals would preclude a positive result.13 The Committee further
notes that, on the other hand, mere doubts about the effectiveness of domestic remedies do
not absolve an author from exhausting them.14
7.6
In the present case, the Committee notes that the author’s claims that she could not
secure legal aid to submit her complaint to the courts. The Committee notes the State Party’s
arguments that the fact that the author has been refused free legal aid cannot lead to a different
outcome. In this regard, the Committee notes that that the author does not explain why it was
necessary for her to obtain legal aid, and that she has not referred to any potential legal
complexities of the case she was planning to file, or described in detail the efforts undertaken
to secure such legal aid. The Committee further notes that the author does not provide any
pertinent explanation as to why she considers the State Party’s court procedures ineffective;
she states only that they are not accessible and would not provide effective redress (see
paras. 3.4, 5.5 and 5.6 above). In these circumstances, and in the light of all the submissions
made by the State Party, the Committee cannot conclude that the requirements of
article 5 (2) (b) of the Optional Protocol were met in the present case, and therefore declares
the communication inadmissible.
7.7
In the light of the Committee’s findings in para. 7.6, it decides not to consider other
admissibility criteria with regard to the present communication.
8.
The Committee therefore decides:
(a)
That the communication is inadmissible under article 5 (2) (b) of the Optional
Protocol;
(b)
That the present decision shall be transmitted to the State Party and to the
author.
11 Vicente et al. v. Colombia (CCPR/C/60/D/612/1995), para. 5.2.
12 Patiño v. Panama (CCPR/C/52/D/437/1990), para. 5.2.
13 Young v. Australia (CCPR/C/78/D/941/2000), para. 9.4; and Barzhig v. France, communication
No. 327/1988, para. 5.1.
14 P.S. v. Denmark, para. 5.4; Faurisson v. France, para. 6.1; and Warsame v. Canada, para. 7.6.
CCPR/C/133/D/3325/2019
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GE.26-00417
Annex I
Joint opinion of Committee members Wafaa Ashraf Moharram Bassim
and José Manuel Santos Pais (dissenting)
1.
We regret not being able to concur with the Committee’s decision in finding the
communication inadmissible due to non-exhaustion of domestic remedies.
2.
In the present case, the author, born in Morocco in 1997, was separated from her
mother when she was only one month old (para. 2.1 of the Committee’s decision), after her
parents’ divorce. For many years, she could not see her mother – who, in 2002, had married
a Danish citizen and moved to Denmark – as her father’s family did not allow any contact
between the two (para. 2.2). The author therefore did not have the love and care of her mother
during her childhood, including most of her teenage years.
3.
The author’s father died in 2010 (para. 2.1) and she surely suffered from such a loss,
being just 13 years old at the time.
4.
It was only in the summer of 2013, when the author was 16 years old, that she was
allowed to see her mother, at the request of her paternal aunt, who wished to transfer custody
of the author to her birth mother (para. 2.2), presumably since the paternal family did not
want to care for the author anymore.
5.
The author’s mother quickly travelled to Morocco to have the author’s passport issued
and to submit a visa application for the author to enter Denmark so that the author could be
part of her new Danish family. The author obtained the visa and entered Denmark in 2014
and later submitted, in December of the same year, while still a minor, an application to the
Danish Immigration Service for family reunification, which was rejected in May 2015.
6.
The reasons for the rejection by the Danish authorities (para. 2.3) are, at the very least,
shocking, particularly with respect to concluding that the denial of residence did not violate
the respect for the unity of the family or the best interests of the author.
7.
As for the argument concerning the delay in submitting the application for family
reunification, it was not possible for the author’s mother to submit the application before the
issuance of: (a) the author’s passport, which depended upon the transfer of the child’s custody
from her paternal aunt to her mother; and (b) the author’s visa to enter Denmark (para. 5.3).
All these initiatives to have the necessary documentation issued by the authorities, which
may have delayed the application for a residence permit, only reveal the mother’s interest in
taking care of her daughter in the future.
8.
As for the alleged lack of a special relationship between the mother and her daughter
after living apart for more than 16 years, neither of them should be blamed for it, the interest
shown by both the author and her mother in living together being a clear indication that they
want to resume a relationship that they were prevented, against their will, from experiencing
for so many years.
9.
As for the argument that the author had family in Morocco who could take care of her
(para. 4.11), it is clear the author’s paternal family refuses to take care of her any more and
that is why they contacted the author’s mother.
10.
Finally, as for the argument that as the author was over the age of 17 at the time of the
application, her needs for care and parental love were less than that of a younger child, this
does not exclude that, just entering adulthood, the author is in need of particular guidance,
support and parental love from her mother in this very important phase of her life.
11.
In fact, the author wants to build a relationship with her mother, a relationship that is
particularly necessary as she enters adulthood; therefore, denial of residence violates the
respect of the unity of the (new) family and the interests of the author, contrary to the State
Party’s arguments.
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12.
Both the author (para. 3.2) and the State Party (para. 4.6) recognize that there are
extraordinary circumstances under which family reunification may be allowed for persons
who are 15 years of age or older; the delay in going through the necessary procedures should
justify approval of a residence permit pursuant to the principle of the best interests of the
child (paras. 4.8 and 6.5).
13.
In recent years, however, the State Party changed its laws, making it much more
difficult for applicants for family reunification; that situation had an impact on the author’s
communication. Until 2018, certain cases of family reunification for children could be
appealed automatically and a lawyer was appointed free of charge to assist the minor and the
parents. In 2018, that system was abandoned, and the Immigration Appeals Board, an
independent collegial, quasi-judicial administrative body, took over certain court cases
relating to particular cases of family reunification (para. 5.5). The State Party acknowledges
this important legislative change and its consequences (para. 6.4).
14.
Moreover, while decisions of the Immigration Appeals Board can be challenged in
the courts, it is only for a limited set of legal reasons, including significant procedural errors.
In fact, the general assessments of the facts and the merits in the case cannot be reviewed by
the courts (para. 5.5); the State Party also acknowledges that limitation when it states that
Danish courts “have the authority to adjudicate any matter concerning the limits of the
competence of a public authority and the legitimacy of its decisions” (para. 6.3).
15.
Although the author did not bring the 21 December 2015 and 1 November 2016
Immigration Appeals Board decisions before the Danish courts, therefore allegedly not
exhausting domestic remedies, she was prevented from doing so, since she had been refused
free legal aid. For a girl not having any means of providing for her own sustenance, having
just entered adulthood and being new to a country different than her own, this is of major
importance and surely prevented her from bringing the case before domestic courts.
Furthermore, as already stated above, decisions of the Immigration Appeals Board can be
challenged at the courts only for a limited set of legal reasons.
16.
The author was informed by the Immigration Appeals Board that the appeal to the
Board did not grant suspensive effect in regard to the deadline for departure, and that the
author had to leave Denmark immediately (para. 4.2). Moreover, even if the author had
decided to launch a judicial review of the Board’s decisions before the Danish courts, this
would not have had the effect of suspending the author’s pending deportation, as the State
Party itself acknowledges that court proceedings do not delay the effect of such a decision
“unless the court decides otherwise” (para. 6.3). Therefore, exhaustion of domestic remedies
could not prove available or effective in the circumstances of the present case (paras. 3.4 and
5.6).
17.
Family reunification concerns not only children and their parents, but also adults (for
instance, spouses), a situation that the State Party acknowledges (para. 4.12). So, the
argument relating to the actual age of the author is a rather weak one.
18.
The decision not to allow family reunification constitutes an interference with the
author’s family life and does not protect the young adult (para. 5.8). The State Party itself
acknowledges that in some cases where the child is 15 years of age or older, the principle of
the best interests of the child may lead to the obligation to grant a residence permit to that
child (para. 6.5).
19.
We would therefore have reached a decision of admissibility in this case and would
have concluded for a violation of the author’s rights under articles 23 and 24 of the Covenant.
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GE.26-00417
Annex II
Individual opinion of Committee member Hélène Tigroudja
(dissenting)
1.
I disagree with the conclusion reached by the majority of the Committee for the
reasons thoroughly explained and detailed by my colleagues Wafaa Ashraf Moharram
Bassim and José Manuel Santos Pais in their dissenting opinion. I fully share their analysis,
but I would like to add another element linked to the domestic legal background in force in
Denmark when the facts occurred that was totally missed by the majority of the Committee.
2.
Provisions of the State’s Aliens (Consolidation) Act (sects. 7 and 9) and the question
of the State’s international positive obligations regarding family reunification have been
assessed severely by various international bodies, especially the Grand Chamber of the
European Court of Human Rights in its M.A. v. Denmark judgment issued on 9 July 2021.1
The facts and the claims are different from the present case. Nevertheless, the European Court
clarified and stressed a key principle relevant for the present communication. Rebutting the
State’s affirmation that there were no positive obligations when dealing with family
reunification, the European Court recalled its long-standing jurisprudence in favour of
granting family reunification in different circumstances, and especially when “children were
involved, since their interests must be afforded significant weight”.2 This “child-friendly”
approach to the family reunification question has consequences on both the substantive and
procedural dimensions of the State’s obligations that affect its “margin of appreciation” in
these matters.3 The Human Rights Committee itself has recognized, in Views in which it
found a violation by Denmark – regrettably ignored by the majority – that the best interests
of a child must guide the analysis of the State’s substantive and procedural obligations under
the Covenant. For example, in one case it stressed the following: “At stake in the present case
are the author’s rights as a minor to maintain a family life with his father and his half-siblings
and to receive protection measures as required by his status as a minor. The Committee notes
that the author cannot be held responsible for any decisions taken by his parents in relation
to his custody, upbringing and residence.”4
3.
In the present case, the majority declared the complaint inadmissible on the ground of
non-exhaustion of domestic remedies. However, that majority did not consider whether an
exception to the exhaustion rule could apply, given the specific situation of the author (a
minor who had been refused free legal aid) and the available remedies themselves (judicial
review can be done only on narrow grounds and the remedies are not suspensive). The
arguments raised by the State that the author was 17 at the time of lodging her application
and that she had had no contact with her mother until the age of 16 are irrelevant and cannot
be used against the author. Quite the contrary, as highlighted by the Committee in El-Hichou
v. Denmark, the author cannot be blamed or sanctioned for her father’s refusal to allow her
mother to visit her.
4.
The majority’s position is also at odds with the unanimous international criticism of
the Danish domestic parliamentary and judicial practice on family reunification. In addition
to the European Court of Human Rights, the Parliamentary Assembly of the Council of
Europe, the Commissioner for Human Rights of the Council of Europe, the European
Commission against Racism and Intolerance, the Committee on the Elimination of Racial
Discrimination and the Human Rights Committee itself, in its 2016 concluding observations
on Denmark,5 have strongly criticized the Danish Aliens (Consolidation) Act, the regressive
1 Application No. 6698/18. In her communication, the author also referred to another important case,
Biao v. Denmark (see Application No. 38590/10, Judgment (Grand Chamber), 24 May 2016), which
is also relevant to understanding the legislative context.
2 M.A. v. Denmark, para. 135; the Court referred to previous judgments on similar issues.
3 M.A. v. Denmark, paras. 161–163.
4 El-Hichou v. Denmark (CCPR/C/99/D/1554/2007), para. 7.4.
5 CCPR/C/DNK/CO/6.
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rationale behind the text and the discriminatory consequences of many of its provisions.6 I
regret that the majority decided this communication not only without any regard to the
international standards applicable to family reunification in general, but also without any
consideration to the clear and universal denunciation of the Danish legislative framework
applied to the author’s and her mother’s claims.
5.
For all these considerations and those explained by my colleagues Ms. Bassim and
Mr. Santos Pais in relation to the facts, I am convinced that the communication should have
been declared admissible, and that, on the basis of the family life existing between the author
and her mother, the Committee should have concluded for a violation of articles 23 and 24
of the Covenant.
6 For references to such criticisms, see M.A. v. Denmark, paras. 49–60.
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GE.26-00417
Annex III
Individual opinion of Committee member Duncan Laki Muhumuza
(dissenting)
1.
The author claims that the rejection of her application for a residence permit for the
purpose of family reunification and the order for her to leave Denmark constitutes a violation
by the State Party of her rights to family life and protection, under articles 23 and 24 of the
Covenant. She also claims that the State Party violated her rights under articles 3 and 9 of the
Convention on the Rights of the Child.
2.
The application was rejected on the basis that no special grounds to grant a residence
permit could be established under the Aliens (Consolidation) Act; that denial of residence
did not violate the respect for the unity of the family, or the best interests of the author; that
the author’s mother had not submitted the application without delay, since she had
re-established contact with her daughter during the summer of 2013, but had applied for
family reunification only on 5 December 2014; and that there was no special relationship
between the mother and the daughter after having lived apart for more than 16 years.
3.
There need not be a “special relationship” between a mother and her child for purposes
of family. It is not in contention that H.B. is the biological mother of the author, and that fact
cannot be negated by lapse of time, or by distance or lack of proximity. The State Party seems
to imply that the absence of communication, and the 16 years they spent apart while the
author was in the care of her father’s family, nullify H.B.’s motherhood. Yet motherhood is
the most natural basis of family (with the mother being a child’s birth parent).
4.
The author’s needs for care and parental love might indeed be less than those of a
younger child, but the author has clearly expressed by whom she would like those needs to
be met; that is, by her mother. The State Party should reconsider that, since the author is older
now, her preferences and wishes can be better expressed with regard to whose care she should
be under. Continually denying that requirement would be a blatant violation of the author’s
best interests.
5.
On the submission by the State Party that no positive obligation can be derived from
articles 23 and 24 of the Covenant for countries other than the country where the child is a
citizen, and that neither do the articles include an independent immigration right for a child
for the purpose of obtaining better living conditions, even when the child has some
connection to the country as a temporary country of residence for the child:
(a)
It is important to note that the main basis of the application was family
re-unification, not pursuit of better living conditions;
(b)
The connection that the author seeks is with her birth mother, not the State
Party in whose territory the mother resides. The immigration right is thus incidental to her
right to family, in which case the State Party is obligated to take steps to allow for the
enjoyment of the latter right.
6.
The State Party submits that, in general, children are not considered to have developed
an independent attachment to Denmark until after six to seven years of uninterrupted stay in
Denmark with a residence permit. The most important attachment in this case is that of the
author to her mother. From the established facts, it is obvious that the separation was the
result of conditions beyond the control of the author and her mother. Natural justice leans
heavily towards the need to maintain the currently re-established mother-daughter
relationship.
7.
The State Party submits that the author has never received a residence permit in
Denmark, and that she stayed in Denmark illegally on a visitor’s visa and procedural stays.
The State Party finds that the author is not without a caregiver in her home country,
considering that her aunt, with whom she had lived before, is still living in Morocco and that
the author also has other family members. The State Party also notes that the author’s mother,
H.B., has visited the author in Morocco on several occasions and submits that nothing
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prevents the author and her mother from continuing to enjoy their family life through visits,
as they have done since re-establishing contact.
8.
It is unclear why the State Party should insist on family visits, when parental visits are
not the normal way of raising a child, and when such an approach is detrimental to a child’s
stability. It is unfortunate that the State Party would opt for parental visits as a preferred
method of family life, when there is a parent willing to care for her daughter. It is
inconsiderate of the essence of family and its contribution to the social fabric.
9.
For the State Party to state that its position is unchanged even by the fact that the
mother had been prohibited from having contact with her daughter by her ex-husband’s
family is quite absurd. The State Party observes that in some cases where the child is 15 years
of age or older the best interests of the child may lead to the obligation to grant a residence
permit to that child.
10.
Since the State Party acknowledges that in certain cases where the child is 15 years or
older the best interests of the child may lead to the obligation to grant a residence permit to
that child, my considered opinion is that the State Party should indeed proceed to grant the
permit as sought by the author.