CCPR/C/112/D/2243/2013
accordance with the provisions, aims and objectives of the Covenant and should be
reasonable in the particular circumstances. 19 In that regard, the Committee reiterates that, in
cases where one member of a family must leave the territory of a State party, while the
other members would be entitled to remain, the relevant criteria for assessing whether or
not the specific interference with family life can be objectively justified must be
considered, on the one hand, in the light of the significance of the State party’s reasons for
the removal of the person concerned and, on the other hand, the degree of hardship that the
family and its members would suffer as a consequence of such removal.20
9.5
The Committee notes that the State party justifies the author’s removal from the
country by the fact that he has been repeatedly convicted of several serious offences which
can lead, in the case of aliens who have been lawfully residing in Denmark, to expulsion.
The State party is furthermore of the view that “the expulsion decision is necessary in the
public interest and to protect [public] safety from further criminal activity by the author and
[is] thus in furtherance of a legitimate State interest”. The Committee takes note of the
author’s argument that his children cannot be expected to follow him to Afghanistan, as
they are Danish nationals who do not speak Pashto, have no ties with the country and have
been living with their mother since the divorce. The Committee also notes that if the author
were to be deported to Afghanistan – a country that he left at the age of five – the nature
and quality of his family relationships could not be adequately maintained through regular
visits, due to the permanent re-entry ban imposed on him.
9.6
The Committee notes that the communication was submitted on behalf of the author
as well as his children, who were born after the decision to expel the author became final. It
also notes that the State party has not reviewed those new circumstances and, in particular,
never examined to what extent the deportation of the author was compatible with the right
of his children to such measures of protection as required by their status as minors (art. 24
of the Covenant). The Committee further notes that the material before it does not allow it
to conclude, in the present case, that due consideration was given by the State party to the
right of the family to protection by society and the State nor to the right of children to
special protection. Under those circumstances, the Committee is of the view that removing
the author and separating his children from their father, without reviewing those new
personal circumstances, would amount to a violation of article 23, paragraph 1, read in
conjunction with article 24 of the Covenant.
9.7
In the light of the above finding of a violation of article 23, paragraph 1, read in
conjunction with article 24 of the Covenant, the Committee will not consider whether the
circumstances of the case constitute a separate violation of article 13, for the same facts.
10.
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of the view that the
author’s removal to Afghanistan would violate his and his children’s rights under article 23,
paragraph 1, read in conjunction with article 24 of the Covenant.
11.
In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is
under the obligation to provide the author with an effective remedy by proceeding to a
review of the decision to expel him with a permanent re-entry ban, taking into account the
State party’s obligations under the Covenant. The State party is also under an obligation to
take steps to prevent similar violations in the future.
19
20
Human Rights Committee, general comment No. 16 (1988) on the right to respect of privacy, family,
home and correspondence, and protection of honour and reputation, para. 4.
See Communications No. 1222/2003, Byahuranga v. Denmark; and No. 1011/2001, Madafferi v.
Australia, para. 9.8.
15
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