CCPR/C/114/D/2360/2014 Appendix II Individual opinion of Committee members Yuval Shany and Konstantine Vardzelashvili (concurring) 1. We agree that, in the circumstances of the case, deporting the author and her children to Italy without undertaking an individual assessment of their personal circumstances and without considering the need to obtain proper assurances from the Italian authorities that they will be able to access the most basic social services would violate article 7 of the Covenant. Still, we wish to clarify an aspect that was not sufficiently explained in the Committee’s Views. We believe that the Committee’s approach should have been based more explicitly on the unique status of the author and her children as asylum seekers entitled to subsidiary protection and not merely on the economic destitution that she had experienced and may experience again if deported to Italy. For us, it is this unique status that gives rise to the obligation of the State party not to the deport the author and her children to Italy. 2. The status of asylum seekers entitled to subsidiary or complementary protection is specifically regulated in Executive Committee (ExCom) Conclusion No. 103(LVI) (2005) of the United Nations High Commissioner for Refugees (UNHCR)a and governed, for most European Union member States, including Italy, by the system of allocation of responsibilities introduced by Council Regulation (EC) No. 343/2003 (Dublin II Regulation) as amended by Council Regulation (EC) No. 604/2013 (Dublin III Regulation).b According to these instruments, persons entitled to subsidiary protection must not be returned to their countries of origin or to ‘unsafe’ third countries (non-refoulement);c and according to the relevant UNHCR interpretative guidelines d and Council directives, they should also be able to enjoy basic economic and social rights in the receiving countries.e In fact, these two entitlements appear to be, at least in some cases, closely interrelated, as the inability to exercise the most basic economic and social rights, which would enable asylum seekers to stay in the country of asylum, may eventually leave them no choice but to return to their country of origin, effectively rendering illusory their right to non-refoulement under international refugee law. f The same logic applies to the nona b c d e f 14 UNHCR, ExCom Conclusion No. 103(LVI) (2005), Conclusions on the provision on international protection through complementary forms of protection. Council of the European Union, Council Regulation (EC) No. 343/2003 of 18 February 2003 (Dublin II Regulation); and European Parliament and Council of the European Union, Regulation (EU) No. 604/2013 of 26 June 2013 (Dublin III Regulation). See UNHCR, ExCom Conclusion No. 103 (LVI) (2005) (note a above), para. (m); Dublin II Regulation, preambular para. 2 and art. 2 (c); and Dublin III Regulation, preambular paras. 3 and 10. UNHCR, Complementary Forms of Protection: Their Nature and Relationship to the International Refugee Protection Regime, 9 June 2000 (EC/50/SC/CRP.18), para. 17. Council of the European Union, Council Directive 2004/83/EC of 29 April 2004 (the Qualification Directive), arts. 28-29, as amended by European Parliament and Council of the European Union, Directive 2011/95/EU of 13 December 2011 (the recast Qualification Directive), arts. 29-30, which confers basic benefits on those entitled to subsidiary protection. These provisions resemble Council Directive 2003/9/EC of 27 January.2003 (the Reception Directive), art. 13, as amended by European Parliament and Council of the European Union Directive 2013/33/EU of 26 June 2013 (the recast Reception Directive), arts. 17-19, which confers basic benefits on asylum seekers. See, for example, Penelope Mathew, Reworking the Relationship between Asylum and Employment (New York, Routledge, 2012), p. 88; and James C. Hathaway and Michelle Foster, The Law of Refugee Status, 2nd ed. (Cambridge, Cambridge University Press, 2014) 348.