CCPR/C/124/D/2734/2016 Annex III [Original: Spanish] Individual opinion (dissenting) of Tania María Abdo Rocholl 1. The author, Fahmo Mohamud Hussein, arrived in Italy in 2008 from Somalia, her country of origin, and stayed in an asylum centre until 2009, when the Italian authorities granted her subsidiary protection and a residence permit valid until 2012, meaning she had to leave the reception centre. Her residence permit was subsequently extended to 2015. In all the time she was in Italy, the author was unable to maintain minimal decent living conditions or secure stable and legal employment. She survived on handouts and her situation was aggravated by occasional violent incidents. 2. It is important not to forget that the author submitted the communication not only on her own behalf, but also on behalf of her child. The child was born in Denmark in 2015, after the author had left Italy on learning that her family – her father, mother and six siblings – were residing legally in that country. Her family really supported her, taking her in and helping to take care of her child in a loving family environment, in contrast to the behaviour of the father in Italy, who never created a bond with his child. However, when her asylum application was examined, the authorities disregarded these circumstances. 3. Clearly, such events have led to uncertainty over the future of the author and her child, who, at the age of 3, has only ever known life in Denmark with all his family and who is in need of protective measures appropriate to his status, as required under article 24 of the Covenant. Furthermore, the child enjoys strengthened legal recognition as a subject of law in line with the Convention on the Rights of the Child. He is therefore entitled to protection distinct from that for adults, to ensure that his best interests are given precedence over other legitimate interests when making decisions and resolving conflicts. 4. Unfortunately, the child has been treated as an extension of the author’s legal personality and not as a subject of law. The administrative decisions taken during the asylum process did not give priority to the best interests of the author’s son, whereas any measures that might affect a child must take account of the possible repercussions, whether positive or negative, on the child. 5. The State party has failed to comply with the obligation not to extradite, deport, expel or otherwise remove a person from its territory where there are substantial grounds for believing that there is a real risk of irreparable harm, as set out in paragraph 12 of general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant. Accordingly, the State party should have considered, among other circumstances, the general human rights situation in Italy. As it is, the State authorities failed to verify the vulnerable situation in which the author and the child would find themselves if they were to return to Italy. 6. Nor was due consideration given to the imminent uprooting of the mother and her son upon separation from their extended family, the difficulties they would face in the procedure for entering and taking up legal residence in Italy, their uncertain socioeconomic situation, or the negative impact on the development of the child’s identity and personality. Crucially, no assessment was made of the Italian Government’s current migration policy (protection of vulnerable migrants, humanitarian protection, expulsion criteria, criteria for staying in immigrant reception centres, and so on). It can thus be concluded that there are no minimum guarantees for the return to Italy of the author and her son. 7. It should be noted that the present communication is very similar to previous cases in which the Committee found that there had been a violation of article 7 of the Covenant. Nevertheless, while the Committee has exclusive authority to depart from its own jurisprudence, to do so in this case is, in my view, to set a worrying precedent to say the least. 16 GE.19-02298