CCPR/C/125/D/2948/2017 Annex Joint opinion (dissenting) of José Manuel Santos Pais and Gentian Zyberi 1. We regret that we are unable to support the Committee’s decision to consider this communication inadmissible (see para. 7 of the decision), as the Canadian authorities have not given sufficient consideration to the best interests of the children in this case. 2. The authors of the communication are Mr. H.S. and Ms. A.K., both nationals of India who arrived in Canada in 2008. The authors are acting on their own behalf and on behalf of their minor children, J.S., born in 2009, and R.K., born in 2010, both of whom are Canadian citizens (para. 1.1). 3. The adult authors’ asylum claim was rejected in 2015, and their application for a pre-removal risk assessment was rejected in 2016 (para. 2.7). Having been ordered to leave Canada, they would likely already have done so if the Committee had not requested that Canada stay their removal while their complaint was being considered (para. 1.2). 4. For the State party, the decision to expel the adult authors appears to have already been taken and consequently the situation of the children, who are Canadian citizens, has not been duly taken into account. The Canadian authorities contacted the Indian authorities in order to obtain the travel documents necessary for the deportation of the adult authors, as well as 180-day tourist visas for the children (para. 2.10). 5. In October 2016, the adult authors submitted an application for permanent residence on humanitarian and compassionate grounds, especially regarding the best interests of their children. However, this procedure, which normally takes between 30 and 42 months, would not prevent the authors’ deportation (para. 2.8). Their application was processed unusually quickly, and was denied in March 2017. 6. The authors therefore submitted to the Federal Court an application for judicial review. That application remains pending, as acknowledged by Canada (paras. 4.3, 5.3 and 6.4). An out-of-court settlement was reached on 7 November 2017 between the authors and the State party, which agreed to reconsider the application before a hearing was held before the Court (para. 5.3). It therefore appears that Canada is prepared to continue consideration of this case. 7. It is true that, while the authors were entitled to apply to the Federal Court of Canada for a judicial review of the decisions to reject their asylum application, their counsel at the time had advised them not to do so (para. 2.9). 8. This led Canada to consider the claims of the adult authors inadmissible, since they had not exhausted all available domestic remedies (para. 4.3), and led to the Committee’s inadmissibility decision (para. 7). 9. However, such reasoning is based exclusively on the behaviour of the adult authors. What about their children? Should they be victims of their parents’ choices? 10. It appears that, for Canada (para. 4.7), the deportation of the adult authors would also entail the deportation of their children, even though, unlike their parents, they are Canadian citizens. Although they are minors, no measures appear to have been taken to ensure that they could remain in Canada, including under a guardianship or equivalent arrangement. In this regard, the State party merely states that the interests of the children have been taken into account, since they are not themselves subject to a removal order (paras. 4.4 and 4.7). 11. However, the State party does not explain how it would provide for the needs of the two children if they were to remain in Canada after the deportation of their parents, let alone how due consideration was given to the family relations of the adult authors during the proceedings, in connection with article 23 of the Covenant (para. 4.7). GE.19-08918 9