CRC/C/96/D/169/2021

GE.24-09915 (E) 100125 130125

Committee on the Rights of the Child

Views adopted by the Committee under the Optional

Protocol to the Convention on the Rights of the Child on a

communications procedure, concerning communication

No. 169/2021*, **

Communication submitted by:

H.H. (represented by counsel, Neils-Erik

Hansen)

Alleged victims:

Sa.A.A. and Su.A.A.

State party:

Denmark

Date of communication:

20 December 2021 (initial submission)

Date of adoption of Views:

24 May 2024

Subject matter:

Deportation of two children and their mother to

Somalia, where one child would be subject to

female genital mutilation and one child would be

subject to male circumcision

Procedural issues:

Admissibility ratione materiae; substantiation of

claims

Substantive issues:

Prohibition of discrimination; best interests of

the child; right to be heard; protection from all

forms of physical and mental violence

Articles of the Convention:

3, 12 and 19

Articles of the Optional Protocol:

7 (c) and (f)

1.1

The author of the communication is H.H., a Somali national born in 1988. She submits

the communication on behalf of her daughter, Sa.A.A., and son, Su.A.A., born in Denmark

on 29 October 2018 and 21 September 2020, respectively. The author, Sa.A.A. and Su.A.A.

are subject to a deportation order to Somalia. The author claims that their forcible return to

their country of origin would amount to a violation of the rights of both children under articles

3, 12 and 19 of the Convention because they allegedly would be at risk of being subjected to

female genital mutilation and male circumcision, respectively. The Optional Protocol entered

into force for the State party on 7 January 2016.

1.2

On 27 December 2021, pursuant to article 6 of the Optional Protocol, the working

group on communications, acting on behalf of the Committee, requested the State party to

* Adopted by the Committee at its ninety-sixth session (6–24 May 2024).

** The following Committee Members participated in the examination of the communication: Suzanne

Aho, Aïssatou Alassane Moulaye Sidikou, Thuwayba Al Barwani, Hynd Ayoubi Idrissi, Mary Beloff,

Rinchen Chophel, Rosaria Correa, Bragi Gudbrandsson, Philip Jaffé, Otani Mikiko, Luis Ernesto

Pedernera Reyna, Ann Skelton, Velina Todorova, Benoit Van Keirsbilck and Ratou Zara.

United Nations

CRC/C/96/D/169/2021

Convention on the

Rights of the Child

Distr.: General

13 January 2025

Original: English

CRC/C/96/D/169/2021

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GE.24-09915

refrain from returning the family to Somalia while their case was under consideration by the

Committee. On 5 January 2022, the State party suspended the execution of the deportation

order against them.

Factual background

2.1

H.H. is from Eribley village, Baraawe District, Shabeellaha Hoose region of Somalia.

She entered the State party on 19 June 2014 and applied for asylum on 24 June 2014. She

was granted temporary residency and protection status on 7 January 2015. On 6 November

2016, H.H. applied for a renewal of her residence permit. On 12 March 2018, the Danish

Immigration Service decided not to renew the author’s permit on the grounds that the basis

of the residence permit no longer existed, as the conditions had changed in such a manner

that she no longer risked persecution, and that the personal statements put forward during the

proceedings of 7 January 2015 had not been accepted as facts, as they had been deemed not

credible.

2.2

On 29 October 2018, the author gave birth to Sa.A.A., and on 1 May 2019, she applied

for asylum on her behalf. On 7 May 2019, the Refugee Appeals Board decided to process the

author’s asylum application together with her daughter’s. On 31 January 2020, during the

author’s screening interview, she stated that she feared that her daughter would be forced to

undergo female genital mutilation, mostly likely by paternal relatives, if deported to Somalia,

and that there was also a risk of being killed, owing to the conflict with Al-Shabaab in the

local area. The author further argued that, in the author’s home country, her daughter would

be at risk of various types of abuse by members of society, as she would be regarded as an

uncircumcised girl coming from Europe. On 27 March 2020, the Danish Immigration Service

rejected the asylum request filed on behalf of Sa.A.A. The decision was upheld on appeal by

the Refugee Appeals Board on 31 July 2020. The Board dismissed the author’s arguments,

stating that it considered the author to be a resourceful person and that she would be able to

resist the pressure from the family and local community and protect Sa.A.A. from being

subjected to female genital mutilation. On 1 September 2020, the Refugee Appeals Board

extended the deadline for leaving the country because the author was again pregnant. On

18 January 2021, the author made a request to reopen Sa.A.A.’s proceedings, reiterating that

the latter would be at risk of being subjected to female genital mutilation if she were to be

deported to Somalia.

2.3

On 31 September 2020, Su.A.A. was born and, on 26 October 2020, the author applied

for asylum on behalf of her son, arguing that she feared the security situation in Somalia, that

upon return she could be killed by a man with whom she had had a previous conflict and that

the paternal grandmother could take her son away from her. On 29 January 2021, the Danish

Immigration Service refused to grant asylum to Su.A.A., referring to its decision of 27 March

2020 in which it had deemed the author’s statements to be not credible. It also considered

that the author’s fear of her son being taken away by his grandmother was an assumption and

that the general situation in Somalia was not of such nature as to place everyone at risk. The

decision was appealed on the grounds that, upon return to Somalia and following local

traditions, the author would be separated from her children, the paternal family would assume

their upbringing and the children’s paternal grandmother would have them circumcised,

whereas the author, as an uneducated woman who had never attended school, would not be

in a position to influence the decision on the circumcision of her children. On 11 March 2021,

the Refugee Appeals Board rejected the author’s request based on the findings made in its

decision of 31 July 2020 regarding her ability to resist social pressure and protect her children

from circumcision. On 10 December 2021, the Refugee Appeals Board upheld the decision

by the Danish Immigration Service, refusing the application for asylum that H.H. had

submitted on behalf of Su.A.A.

Complaint

3.1

The author claims that if Sa.A.A. and Su.A.A. were to be deported to Somalia, their

rights under articles 3, 12 and 19 of the Convention would be violated and the deportation

would not be in line with general recommendation No. 32 (2014) of the Committee on the

Elimination of Discrimination against Women, as they would be at risk of being subjected to

female genital mutilation and male circumcision, respectively. She further submits that the

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circumcision of children of both sexes is widespread in Somalia and deeply rooted in the

country’s cultural traditions. As regards female genital mutilation, 99 per cent of girls above

the age of 15 years have been subjected to such practices in their country of origin; the

majority of girls are subjected to the most severe type of female genital mutilation. As to the

possibility of avoiding female genital mutilation, the author alleges that available background

information differs on whether certain parents can resist having their daughters undergo such

practice. She notes that the Danish Immigration Service previously stated that such resistance

could be possible and that some women do manage to resist, but that it “would highly depend

on the personality of the mother and on whether or not she has the necessary commitment to

stand firm against [female genital mutilation] and the strong psychological pressure it entails,

both from family members and society alike”.1

3.2

The author further argues that, in the “Guidance note on refugee claims relating to

female genital mutilation”, the United Nations High Commissioner for Refugees states that

it considers female genital mutilation to be a form of gender-based violence that inflicts

severe harm, both mental and physical, and amounts to persecution; states that a girl at risk

of being subjected to female genital mutilation should be regarded as the principal applicant

in asylum proceedings, even if she is accompanied or represented by her parents;2 and

highlights the obligation of the authorities to assess the risk of female genital mutilation when

relevant.

3.3

The author claims that, although the State party authorities concluded that the author

would be able to resist family and social pressure and protect her children from the risk of

being subjected to female genital mutilation and male circumcision, the rights of the children

under articles 3 and 19 of the Convention cannot be made dependent on their mother having

that ability.3 In addition, the author claims that the domestic authorities failed to respect the

principle of precaution and the best interests of the child, relying on an unjustified conclusion

that she would be able to resist social pressure and protect her children from circumcision.

The author further alleges that she is a single mother with two children and no male family

member to protect them, that she is uneducated and that she was brought up in a rural area in

Somalia.4 All girls in the author’s family, including herself, have been subjected to female

genital mutilation and her children are the only children in the family who are not yet

circumcised. The author claims that there exists an imminent risk for the children of being

subjected to female genital mutilation and male circumcision, respectively, if they were to be

deported to Somalia, as their mother would not be able to resist social pressure and protect

them.

3.4

The author claims that all domestic remedies have been exhausted since, according to

the State party’s Constitution, unlike administrative decisions made by other public bodies,

decisions by the Refugee Appeals Board cannot be invoked before the courts.5 The Refugee

Appeals Board is an independent court-like body, and its decisions are final.

State party’s observations on admissibility and merits

4.1

On 27 June 2022, the State party presented its observations on admissibility and the

merits. The State party states that the author’s allegations based on the Convention on the

Elimination of all Forms of Discrimination against Women fall outside the jurisdiction of the

Committee to examine alleged violations of the Convention on the Rights of the Child. The

State party therefore requests the Committee to consider that part of the communication

inadmissible under article 7 (c) of the Optional Protocol, as those allegations are incompatible

with the provisions of the Convention.

4.2

In relation to the alleged violations of article 12 of the Convention, the State party

submits that Sa.A.A. and Su.A.A. are very young and would not be able to independently

1 Denmark, Danish Immigration Service, “Thematic paper: South Central Somalia – female genital

mutilation/cutting” (2016), p. 8.

2 See also K.Y.M. v. Denmark (CRC/C/77/D/3/2016), para. 11.8 (c); and European Court of Human

Rights, F.G. v. Sweden, Application No. 43611/11, Judgment, 23 March 2016, para. 126.

3 K.Y.M. v. Denmark, para. 11.8 (b).

4 The author refers to F.G. v. Sweden.

5 See also the Aliens (Consolidation) Act.

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GE.24-09915

make a statement regarding their grounds for asylum. It is therefore their parents’ statements,6

provided to the Danish immigration authorities on their behalf, that constitute the basis of the

proceedings and examination of their asylum application. Furthermore, the children’s views,

represented through their parents, have been included and given due weight in the Board

assessment, in accordance with article 12 of the Convention.

4.3

As to the author’s allegations of violations under article 19, the State party recalls the

Committee’s general comment No. 13 (2011)7 as well as its general comment No. 6 (2005),8

in which it stated that a violation occurred only if the child to be returned would be exposed

to a real risk of irreparable harm. The State party submits that the author has failed to establish

a prima facie case for the purposes of admissibility under article 7 (f) of the Optional Protocol

since it has not been sufficiently substantiated that Sa.A.A. and Su.A.A. would be exposed

to a real risk of irreparable harm if returned to Somalia.

4.4

According to the State party, the author did not provide any new specific information

on their situation to add to the information relied upon as the basis for the decisions made by

the Refugee Appeals Board on 31 July 2020 and 10 December 2021, and recalls the

Committee’s jurisprudence that it is generally for the organs of the States parties to review

and evaluate facts and evidence in order to determine whether a risk of serious violation of

the Convention exists upon return.9 The State party further states that the author has failed to

identify any irregularity in the decision-making process or any risk factor that the Board

failed to properly consider.

4.5

The State party further submits that the weakened credibility of the author’s statement

was included as part of the basis upon which the Refugee Appeals Board based its decision,

in particular, her conflict with Al-Shabaab and with a man from her home town who wanted

to marry her. According to the Board, the author had been asked about the village but she

had been unable to provide a precise description. The Board also observed that, during the

proceedings, the author had stated that Sa.A.A. and Su.A.A.’s paternal grandmother lived in

Qoryooley, whereas their father had stated that the paternal grandmother had left to stay in

Kenya for some months but that she lived in Mogadishu. The Board could not accept the

statement that the author had no male network in her area of origin. Furthermore, the State

party submits that the author did not mention her fear that Su.A.A. would undergo male

circumcision against her will to the Danish Immigration Service in the asylum interview on

15 January 2021 but only later in the Board hearing on 10 December 2021.

4.6

The State party submits that, while there is no dispute that female genital mutilation

is contrary to the Convention, the main issue remains whether the applicant would face a real

and concrete risk of being subjected to such practice upon her return to her home country.10

In its jurisprudence, the European Court has observed that, if the applicant’s mother showed

a considerable amount of strength and independence, she could be expected to protect her

daughter from being subjected to female genital mutilation.11 In the present case, the Refugee

Appeals Board concluded that the author was, in fact, against female genital mutilation, was

not without a male network in Somalia, was a resourceful person and, as a parent, would be

able to resist social pressure, thus finding that the author’s fear could not justify asylum under

section 7 of the Aliens (Consolidation) Act.

6 Although the children’s father was not residing in Denmark at the time, he was interviewed during the

asylum proceedings for Sa.A.A. and Su.A.A.

7 General comment No. 13 (2011) on the right of the child to freedom from all forms of violence,

paras. 11 and 29.

8 General comment No. 6 (2005), para. 27.

9 See A.Y. v. Denmark (CRC/C/78/D/7/2016), para. 8.8. See also European Court of Human Rights,

M.E. v. Sweden, Application No. 71398/12, Judgment, 8 April 2015; R.C. v. Sweden, Application

No. 41827/07, Judgment, 9 June 2010; and X. v. Sweden, Application No. 36417/16, Judgment,

9 April 2018.

10 European Court of Human Rights, Emily Collins and Ashley Akaziebie v. Sweden, Application

No. 23944/05, Judgment, 8 March 2007.

11 European Court of Human Rights, Sow v. Belgium, Application No. 27081/13, Judgment, 19 January

2016; and R.B.A.B. and others v. the Netherlands, Application No. 7211/06, Judgment, 7 June 2016.

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4.7

Concerning Su.A.A., the State party states that there are no precedents on whether the

expulsion of a boy who would face a real risk of circumcision against the parents’ will

constitutes a violation of the Convention and recalls that the author is, in any case, in a

position to ensure that her son is not subjected to circumcision against her will. The State

party further submits that the author did not mention the fear of circumcision during

Su.A.A.’s asylum screening interview with the Danish Immigration Service. The State party

recalls that the Refugee Appeals Board concluded that the author was a resourceful person

opposed to both female genital mutilation and male circumcision and that she would be able

to protect her children against such practices.

4.8

The State party further adds that the Refugee Appeals Board’s assessment of evidence

is based on the author’s statements to the police and the Danish Immigration Service, as well

as background information on the authors’ country of origin, including background material

on Somalia and the practice of female genital mutilation. According to the background

material, the provisional Constitution of Somalia states that female circumcision is a cruel

and degrading customary practice that is tantamount to torture and that the circumcision of

girls is prohibited but that there is currently no legislation to expressly criminalize and punish

the use of female genital mutilation. It is also stated in the background information, however,

that women can avoid having their daughters subjected to female genital mutilation

depending on the personality of the mother and whether or not she has the necessary

commitment to stand firm against such practice. The 2018 Danish Immigration Service

survey indicated that out of 65 per cent of women who had undergone female genital

mutilation, only 32.6 per cent had had their daughters undergo the procedure, which indicated

that many of the women had successfully chosen not to circumcise their daughters.12

4.9

The State party also states that the Refugee Appeals Board made the decisions of

31 July 2020 and 10 December 2021 after having conducted a comprehensive and thorough

examination of the evidence and maintains that the author has not demonstrated that Sa.A.A.

and Su.A.A. would be at risk if returned to Somalia. It adds that the fact that the Board failed

to expressly invoke the Convention in its decision13 cannot imply that the Board did not take

the Convention into account.

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

5.1

On 13 June 2023, the author presented her comments on the State party’s observations

on admissibility and the merits. Concerning the State party’s argument that the

communication should be declared inadmissible as manifestly ill-founded, the author alleges

that her personal circumstances and the situation in Somalia for women and girls substantiate

that Sa.A.A. would be exposed to a real risk of irreparable harm if returned to Somalia, where

99.2 per cent of women and girls are subjected to female genital mutilation. The author

further claims that, even if she were successful in shielding Sa.A.A. from the practice, there

was a strong risk that, as the girl grew older, pressure from friends or other persons would

result in female genital mutilation. Furthermore, the author has repeatedly explained that she

would not be able to protect her daughter upon return and provided evidence that her

immediate family represented an imminent danger to her daughter.

5.2

The author claims that the decisions of the Refugee Appeals Board are arbitrary and

contradictory to its jurisprudence, which adds uncertainty to the State party’s application of

the principle of precaution in cases involving children at risk of female genital mutilation.

Both the Board and the Danish Immigration Service have granted protection to Somali girls

who risk being subjected to female genital mutilation. The author further alleges that the

Board’s decision in the authors’ case is in direct conflict with the Committee’s

recommendations in similar cases against the State party.14

5.3

With regard to the merits, the author reiterates her arguments on the admissibility of

the communication and that she has sufficiently substantiated her claims. She adds that the

12 Denmark, Danish Immigration Service, “Country of origin information: FGM /kvindelig omskæring –

baggrund, tal og tendenser” (“FGM/female circumcision – background, numbers and tendencies”),

Notat, (Copenhagen, 2019), p. 9 (in Danish).

13 See A.Y. v. Denmark.

14 Y.A.M. v. Denmark (CRC/C/86/D/83/2019); and K.Y.M. v. Denmark.

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State party’s suggestion that the relevant background material supports the Refugee Appeals

Board’s decision runs contrary to the material provided by the State party itself and the most

recent data and reports. The Danish Immigration Service, in its 2019 country of origin

information report on female genital mutilation, noted several times that sources disagreed

on the extent to which parents could oppose female genital mutilation and protect their

daughters from circumcision.15 The author further states that the Danish Immigration Service,

in its own 2020 report on South and Central Somalia on the conditions for returnees, noted

the vulnerability, especially, of young girls, who might face female genital mutilation.16 The

author reiterates that sources indicate that girls in Somalia are at risk of being subjected to

female genital mutilation against their parents’ will. In addition, returnees from European or

other Western countries might be at particular risk in terms of subjection to female genital

mutilation upon return.17 According to the author, the arguments of the State party contradict

the official reports produced by the immigration authorities.

5.4

In relation to the alleged lack of credibility of her statements, the author argues that

the State party stands ready to believe the authors’ statements only when they work in favour

of its narrative. The State party granted total credibility to the author’s opposition to female

genital mutilation and built its dismissal on the grounds that she was a resourceful parent

willing and able to protect her daughter. According to the author, that is a selective approach

and directly contradicts the known facts of the situation for Somali women and girls, who are

unable to avoid such procedures.

5.5

The author argues that the three criteria for obtaining asylum have been met, namely:

(a) there is a real risk faced by Sa.A.A. of being subjected to female genital mutilation, given

the Somali context; (b) Sa.A.A. is at personal risk, insofar as the author has expressed her

inability to protect her if she is returned to Somalia; and (c) Sa.A.A. is at foreseeable risk,

insofar as all the women in the author’s family have been subjected to female genital

mutilation.

5.6

With regard to the principle of precaution, the author notes that the State party insists

that the crucial part of the assessment in cases such as the present one revolves around

whether the parents are considered resourceful and able to protect their children. The State

party relies, however, solely on the statements of the author, whom they otherwise consider

to lack credibility. The author highlights, as evidenced by the State party’s observations, that

the State party has not changed its practice in accordance with the Committee’s guidance to

adequately assess the best interests of the child and the principle of precaution.18 Deporting

a girl to a country in which 99 per cent of women have been subjected to female genital

mutilation, where the majority (64 per cent) are subjected to the Pharaonic type (cited by the

European Asylum Support Office as the worst type)19 and where Sa.A.A., given her age,

would be particularly vulnerable if returned to Somalia, is in itself a clear violation of the

Convention under articles 3 and 19, irrespective of speculations into the resilience of her

parents. The author notes that she did express her fear that Sa.A.A. would be subjected to

female genital mutilation in Somalia during the hearing before the Refugee Appeals Board.

Additional information

6.

On 17 May 2024, the State party submitted additional observations, reiterating the

inadmissibility of the communication as manifestly ill-founded, pursuant to article 7 (f) of

the Optional Protocol. The State party also notes some factual inconsistencies in the author’s

comments of 13 June 2023. In particular, the State party notes that the author refers to Sa.A.A.

15 “Country of origin information: FGM/kvindelig omskæring – baggrund, tal og tendenser”, p. 11.

16 Denmark, Danish Immigration Service, “Country of origin information: South and Central Somalia –

security situation, forced recruitment, and conditions for returnees, Brief Report (Naestved, Denmark,

2020), p. 33.

17 Denmark, Danish Immigration Service, “Country of origin information – Somalia, female genital

mutilation (FGM)”, Brief Report (Naestved, Denmark, 2021), p. 1.

18 See Y.A.M. v. Denmark; K.Y.M. v. Denmark; and CRC/C/DNK/CO/5, paras. 39 (c) and (d) and 40 (c)

and (d).

19 European Asylum Support Office, Somalia Targeted Profiles: Country of Origin Information Report

(Luxembourg, Publications Office of the European Union, 2021), p. 40; and Somalia, Directorate of

National Statistics, The Somali Health and Demographic 2020 (Mogadishu, 2020), p. 213.

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as having been born in 2020, whereas she was actually born in 2018. Similarly, the author

refers to real threats from the immediate family in the form of both grandmothers, one of

whom was recently responsible for the circumcision of the Sa.A.A.’s sister when, in the

present case, the maternal grandmother of Sa.A.A., according to H.H. herself, is dead, and

Sa.A.A. has no sister. Sa.A.A., however, has a brother, Su.A.A., who was not mentioned in

the author’s comments. Finally, the State party indicates that the author also referred to

incorrect dates for the Refugee Appeals Board decisions.

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 20 of the rules of procedure under the Optional Protocol,

whether the claim is admissible under the Optional Protocol.

7.2

The Committee first notes the State party’s additional observations signalling a

number of factual inconsistencies or errors in the author’s comments of 13 June 2023. The

Committee considers, however, that the factual errors contained in the author’s submissions

are minor and do not affect the facts of the case as summarized above. Such errors, therefore,

while unfortunate, do not preclude the Committee from considering the present

communication.

7.3

The Committee notes the State party’s argument that the author’s reference to the

Convention on the Elimination of all Forms of Discrimination against Women falls outside

the jurisdiction of the Committee to examine alleged violations of the Convention on the

Rights of the Child. The Committee recalls that, under article 5 (1) of the Optional Protocol,

it is competent to examine violations of the Convention on the Rights of the Child and its

two substantive Optional Protocols. In the light of the foregoing, the Committee finds that

the author’s claims based on the Convention on the Elimination of all Forms of

Discrimination against Women are incompatible ratione materiae with the provisions of the

Convention and declares those allegations inadmissible under article 7 (c) of the Optional

Protocol.20

7.4

The Committee notes the author’s argument that domestic remedies have been

exhausted, as decisions by the Refugee Appeals Board are not subject to judicial review (see

para. 3.4 above). Accordingly, and given that the State party has not raised any objections in

that regard, the Committee considers that all available domestic remedies must be deemed to

have been exhausted and concludes that article 7 (e) of the Optional Protocol does not

constitute an obstacle to the admissibility of the communication.21

7.5

The Committee notes the author’s allegations under article 12 of the Convention. The

Committee also notes the State party’s argument that Sa.A.A. and Su.A.A. are very young

and could not independently make a statement regarding their grounds for asylum and that

their parents’ statements constituted the basis of the proceedings and examination of their

asylum application, in compliance with article 12 of the Convention. The Committee recalls

that article 12 guarantees the right of every child who is capable of forming his or her own

views to be heard in any judicial or administrative proceedings affecting him or her, either

directly or through a representative. The Committee further recalls that article 12 imposes no

age limit on the right of the child to express her or his views and that it discourages States

parties from introducing age limits either in law or in practice that would restrict the child’s

right to be heard in all matters affecting her or him.22 In the present case, however, the

Committee notes that both Sa.A.A. and Su.A.A. were under two years of age at the time of

the proceedings before the migration authorities and that they were therefore incapable of

forming their own views with regard to their return to Somalia. The Committee therefore

considers that that part of the communication is insufficiently substantiated and declares it

inadmissible under article 7 (f) of the Optional Protocol.

20 See, mutatis mutandis, H.F. v. Luxembourg (CRC/C/93/D/138/2021), para. 6.3.

21 K.Y.M. v. Denmark, para. 10.2; and Y.A.M. v. Denmark, para. 7.2.

22 Y.B. and N.S. v. Belgium (CRC/C/79/D/12/2017), para. 8.7.

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7.6

The Committee takes note of the author’s allegations that Su.A.A.’s deportation to

Somalia would expose him to the risk of being subjected to male circumcision and that the

State party failed to take his best interests into account when deciding on Su.A.A.’s asylum

application, in violation of articles 3 and 19 of the Convention.

7.7

The Committee notes that it has not yet determined whether exposing a child to

non-medically required male circumcision may amount per se to a violation of rights

enshrined in the Convention. Consequently, it has not determined either whether a risk of

being subjected to non-medically required male circumcision could engage a State party’s

non-refoulement obligations under the Convention. Notwithstanding the above, the

Committee notes that, in the present case, the author has failed to provide any specific

information that could justify that Su.A.A.’s return to Somalia would expose him to a real

and personal risk of being forcibly subjected to male circumcision against his parents’ will.

It further notes the argument of the State party that the author did not mention the risk for

Su.A.A. to be forcibly circumcised in case of return during his asylum screening but only

later in the proceedings. In the light of all the above, the Committee considers that the author

has failed to sufficiently justify that claim and declares it inadmissible pursuant to article 7 (f)

of the Optional Protocol.

7.8

The Committee considers, however, that the author’s claims under articles 3 and 19

of the Convention and relating to the risk that Sa.A.A. would be subjected to female genital

mutilation in case of return, in the light of the general and family context, and the failure to

take her best interests as a primary consideration in the context of her asylum proceeding

have been sufficiently substantiated for the purposes of admissibility.23 The Committee also

considers that the author’s allegations concerning the alleged risk of subjecting Sa.A.A. to

female genital mutilation in case of return to Somalia also raise issues in substance under

article 37 (a) of the Convention.

7.9

The Committee therefore declares those claims admissible and proceeds to its

examination of the merits.

Consideration of merits

8.1

The Committee has considered the communication in the light of all the information

made available to it by the parties, in accordance with article 10 (1) of the Optional Protocol.

8.2

The Committee must determine whether Sa.A.A.’s return to Somalia would expose

her to a risk of being subjected to female genital mutilation, in violation of articles 19

and 37 (a) of the Convention, and whether the State party failed to take her best interests into

account when deciding on Sa.A.A.’s asylum application, in violation of article 3 of the

Convention.

8.3

In that regard, the Committee recalls its general comment No. 6 (2005), according to

which States are not to return a child to a country where there are substantial grounds for

believing that there is a real risk of irreparable harm to the child, such as, but by no means

limited to, those contemplated under articles 6 and 37 of the Convention, and that such

non-refoulement obligations apply irrespective of whether serious violations of those rights

guaranteed under the Convention originate from non-State actors or whether such violations

are directly intended or are the indirect consequence of action or inaction.24 The assessment

of the risk of such serious violations should be conducted in an age-sensitive and

gender-sensitive manner. 25 In that regard, the Committee advises that, when assessing

refugee claims, States should take into account the development of, and formative

relationship between, international human rights and refugee law, including positions

developed by the Office of the United Nations High Commissioner for Refugees (UNHCR)

in exercising its supervisory functions under the Convention relating to the Status of

23 S.M.F. v. Denmark (CRC/C/90/D/96/2019), para. 7.2; Y.A.M. v. Denmark, para. 7.3; and K.Y.M. v.

Denmark, para. 10.4.

24 General comment No. 6 (2005), para. 27.

25 Ibid. and Committee on the Elimination of Discrimination against Women, general recommendation

No. 32 (2014) on the gender-related dimensions of refugee status, asylum, nationality and

statelessness of women, para. 25.

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Refugees (1951 Convention).26 In particular, the refugee definition in the 1951 Convention

must be interpreted in an age-appropriate and gender-sensitive manner, taking into account

the particular motives for, and forms and manifestations of, persecution experienced by

children. Persecution of kin, under-age recruitment, the trafficking of children for prostitution

and sexual exploitation or subjection to female genital mutilation are some of the

child-specific forms and manifestations of persecution that may justify the granting of

refugee status if such acts are related to one of the grounds under the 1951 Convention. States

should, therefore, give the utmost attention to such child-specific forms and manifestations

of persecution as well as gender-based violence in national refugee status determination

procedures.27

8.4

In the light of all the above and considering, in particular, the harmful and violent

nature of the practice of female genital mutilation and the long-term health consequences for

children, the Committee considers that a risk of being subjected to the practice clearly

constitutes a protected ground for non-refoulement that may engage States parties’

obligations under article 37 (a) of the Convention.

8.5

In the present case, the Committee takes note of the author’s allegations that she would

be unable to protect Sa.A.A. from being subjected to female genital mutilation in a country

where over 90 per cent of women have been subjected to that practice. The author has also

argued that returning from a Western country makes Sa.A.A. particularly vulnerable on

account of the extra attention that will be paid to her since it will be expected that she will

not have undergone the procedure abroad. The author alleges, in particular, that she was

herself subjected to female genital mutilation and that, following local traditions, the author

would be separated from her children, the paternal family would assume their upbringing and

the children’s paternal grandmother would have Sa.A.A. circumcised, and that the author, as

an uneducated woman, would not be in a position to influence the decision regarding

Sa.A.A.’s circumcision.

8.6

The Committee takes note of the State party’s argument that, according to several

reports, a mother can protect her daughter from being subjected to female genital mutilation

in Somalia if she is able to resist family or community pressure. The Committee also takes

note of the State party’s argument that, following regional jurisprudence, the crucial part of

the assessment in cases concerning female genital mutilation is whether the family is in a

position to ensure that their child is not subjected to the practice. The State party also argues

that the Refugee Appeals Board thoroughly assessed the alleged risk of Sa.A.A.’s return and

duly considering her best interests, and that the author has failed to identify any irregularity

in the decision-making process or any risk factors that were not properly taken into account.

The Committee takes note of the State party’s argument that the author’s credibility was

weakened, which was the basis upon which the Board made its decision regarding the

purported fear of female genital mutilation.

8.7

The Committee recalls that the best interests of the child should be a primary

consideration in decisions concerning the deportation of a child and that such decisions

should ensure, within a procedure with proper safeguards, that the child concerned will be

safe and provided with proper care and ensured the enjoyment of his or her rights.28 In the

present case, the Committee has considered the arguments and information submitted to it,

including the assessment of the author’s assumed ability to resist social pressure on the basis

of her expressed opposition to the practice and reports on the situation of female genital

mutilation in Somalia. The Committee observes, however, that:

26 Committee on the Elimination of Discrimination Against Women, general recommendation No. 14

(1990) on female circumcision; Official Records of the General Assembly, Fifty-second Session,

Supplement No. 12A (A/52/12/Add.1), para. 20; and E/CN.4/2002/83, paras. 12–20. See also

UNCHR, “Guidance note on refugee claims relating to female genital mutilation”, paras. 7 and 9.

27 General comment No. 6 (2005), para. 74.

28 S.M.F. v. Denmark, para. 8.7; Y.A.M. v. Denmark, para. 8.7; K.Y.M. v. Denmark, para. 11.8; S.H.K. v.

Denmark (CRC/C/93/D/140/2021), para. 7.7; and joint general comment No. 3 of the Committee on

the Protection of the Rights of All Migrant Workers and Members of Their Families/No. 22 of the

Committee on the Rights of the Child (2017), paras. 29 and 33.

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GE.24-09915

(a)

The Refugee Appeals Board’s assessment was limited to a general statement

that the author would be able to resist the pressure of the surrounding environment to

circumcise Sa.A.A. Yet such statement was made without properly assessing or justifying

why or how the author could resist such pressure in practice, without evaluating the specific

and personal context to which the author and Sa.A.A. would be returned and without taking

the best interests of the child into account. In that regard, the Committee recalls its consistent

jurisprudence on cases of non-refoulement to Somalia on the basis of an alleged risk of

female genital mutilation, according to which the rights of the child under article 19 of the

Convention cannot be made solely dependent on the mother’s ability to resist family and

social pressure, especially in the light of the reported context, and that States parties should

take measures to protect children from all forms of physical or mental violence, injury or

abuse in all circumstances.29 The Committee takes note of the State party’s argument that it

is relying on its interpretation of regional jurisprudence in other similar cases. The Committee

recalls, however, that that interpretation cannot exempt the State party from complying with

its obligations under the Convention, nor can that interpretation justify non-compliance with

the Committee’s Views under the Optional Protocol.30 The Committee also considers that

there does not appear to be any contradiction between the referenced regional jurisprudence

and its previous Views, in particular given that they relate to different States, which are

known to have different contexts than that of Somalia, and that, while the Committee

acknowledges that the capacity of a child’s parents to protect him or her might be crucial, it

asserts that it is not in itself sufficient without a complete analysis of the specific, individual

context;

(b)

The Refugee Appeals Board based its decision on the author’s weakened

credibility regarding the purported fear of female genital mutilation after making an overall

assessment of her various statements during the author’s asylum applications. The

Committee recalls, however, that determining the best interests of children requires that their

situation be assessed separately, notwithstanding the reasons for which their parents made

their asylum application.31 In particular, the Committee observes that the Board did not

conduct further inquiries as to the specific family context and the ways in which that context

could have affected the assessment of the individual risk faced by Sa.A.A.;

(c)

The evaluation of the risk that a child may be subjected to an irreversible

harmful practice such as female genital mutilation in the country to which he or she is being

deported should be carried out following the principle of precaution and, where reasonable

doubt exists that the receiving State cannot protect a child against such practices, States

parties should refrain from deporting the child concerned.32 The Committee observes that the

State party has not demonstrated that that standard was met in the present case.

8.8

The Committee therefore concludes that the State party failed to consider the best

interests of the child when assessing Sa.A.A.’s alleged risk of being subjected to female

genital mutilation if returned to Somalia, in violation of article 3 of the Convention. The

Committee further concludes that, in the light of the information on file, including the general

context and the specific circumstances of the case, the return of Sa.A.A. to Somalia would

amount to a violation of articles 19 and 37 (a) of the Convention.

9.

The State party is under an obligation to refrain from returning Sa.A.A. and the author

to Somalia. The State party is also under an obligation to take all steps necessary to prevent

similar violations from occurring in the future. In that regard, the State party is requested, in

particular, to ensure that asylum proceedings affecting children include a best interests

assessment and that, where a risk of such a serious violation as female genital mutilation is

invoked as grounds for non-refoulement, the specific circumstances in which the children

would be returned are duly taken into account.

29 S.H.K. v. Denmark, para. 7.7 (a); S.M.F. v. Denmark, para. 8.7 (a); Y.A.M. v. Denmark, para. 8.7 (b);

and K.Y.M. v. Denmark, para. 11.8 (b).

30 Y.A.M. v. Denmark, para. 8.7 (b).

31 S.H.K. v. Denmark, para. 7.7 (b), E.A. and U.A. v. Switzerland (CRC/C/85/D/56/2018), para. 7.3; and

S.M.F. v. Denmark, para. 8.7 (b).

32 S.H.K. v. Denmark, para. 7.7 (c); S.M.F. v. Denmark, para. 8.7 (c); Y.A.M. v. Denmark, para. 8.7 (c);

and K.Y.M. v. Denmark, para. 11.8 (c).

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10.

In accordance with article 11 of the Optional Protocol, the Committee wishes to

receive from the State party, as soon as possible and within 180 days, information about the

measures it has taken to give effect to the Committee’s Views. The State party is requested

to include information about any such measures in its reports to the Committee under article

44 of the Convention. The State party is also requested to publish the present Views and to

disseminate them widely.