CCPR/C/125/D/3041/2017
9.
I concur with the Committee (para. 7.7) that the deportation order against the author
and her two eldest children, but not her other minor children and her husband, constitutes
interference in the family, within the meaning of article 17 of the Covenant. However,
unlike the Committee, I consider that this interference, while lawful, is arbitrary, in the
sense that the notion of arbitrariness includes elements of inappropriateness, injustice, lack
of predictability and due process of law, as well as elements of reasonableness, necessity
and proportionality (para. 7.8).
10.
In the present case, I do not think the interference in family life is appropriate,
reasonable, necessary or objectively justified in the light, on the one hand, of the
significance of the State party’s reasons for the removal of the person concerned and, on the
other hand, of the degree of hardship the family and its members will encounter as a
consequence of such removal. I am even less convinced that it is proportionate to the
legitimate aim pursued. In fact, since the State party itself recognizes the pending process
relating to the author’s husband may allow a future application for permanent residence in
Canada on behalf of the author and her elder children, why not wait for its outcome?
Family unity would thus be guaranteed in the meantime and the best interests of all the
children duly respected.
11.
Accordingly, I consider the deportation order, if implemented, while the process of
the author’s husband is still pending, not proportionate and therefore arbitrary, violating the
author’s and her elder children’s rights under articles 17 (1), 23 (1) and 24 (1) of the
Covenant.
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