CCPR/C/112/D/2243/2013
considers that the author has not sufficiently substantiated his claim and consequently finds
that this part of the communication is inadmissible under article 2 of the Optional Protocol.
8.5
As to the author’s claim under article 2 of the Covenant in relation to the expulsion
decision, the Committee recalls its jurisprudence, which indicates that the provisions of
article 2 of the Convention lay down general obligations for State parties and they cannot
give rise, when invoked separately, to a claim in a communication under the Optional
Protocol.17 The Committee therefore considers that the author’s claims in that regard are
incompatible with article 2 of the Covenant, and inadmissible under article 3 of the
Optional Protocol.
8.6
The Committee notes that the State party has objected to the admissibility of the
communication, arguing that it is insufficiently substantiated for the purposes of
admissibility. The Committee considers that the author has sufficiently substantiated his
claim, for the purposes of admissibility, and that the facts of the communication raise issues
under articles 13, 23 and 24 of the Covenant that should be considered on their merits.
8.7
The Committee notes that the State party has not raised any other objections to
admissibility and proceeds to the consideration of the merits.
Consideration of the merits
9.1
The Human Rights Committee has considered the communication in the light of all
the information made available to it by the parties, as provided for under article 5,
paragraph 1, of the Optional Protocol.
9.2
As to the author’s claims under article 23, the Committee observes that to separate
the author from his children and the rest of his family in Denmark may give rise to issues
under article 23, paragraph 1, of the Covenant. The Committee reiterates its jurisprudence
that there may be cases in which a State party’s refusal to allow one member of the family
to remain in its territory would involve interference in that person’s family life. However,
the mere fact that one member of the family is entitled to remain in the territory of a State
party does not necessarily mean that requiring other members of the family to leave
involves such interference.18
9.3
In the present case, the Committee considers that the decision of the State party to
deport the father of two small children from a divorced family, coupled with a permanent
re-entry ban, is “interference” with the family, at least in circumstances where, as in the
present case, substantial changes in family life would follow. In that regard, the Committee
observes that although the author’s family life has been subjected to significant restrictions
during his incarceration and subsequent custody in remand pending deportation, he has
been able to maintain a close relationship with his family through regular visits to and from
his children and ex-wife.
9.4
The issue thus arises as to whether or not such interference is arbitrary and contrary
to article 23, paragraph 1, of the Covenant. The Committee observes that the decision to
expel the author was upheld by the Eastern High Court on 22 January 2008, but could not
be implemented until 13 May 2013, that is, five years later, during which the author’s
children were born. The Committee recalls that even interference by the law should be in
17
18
14
See Communications No. 2202/2012, Castañeda v. Mexico, decision adopted on 29 August 2013,
para. 6.8; No. 1834/2008, A.P. v. Ukraine, decision adopted on 23 July 2012, para. 8.5; and
No. 1887/2009, Peirano Basso v. Uruguay, Views adopted on 19 October 2010, para. 9.4.
Communications No. 1222/2003, Byahuranga v. Denmark, Views adopted on 1 November 2004;
No. 930/2000, Winata v. Australia, Views adopted on 26 July 2001, para. 7.1; No. 1011/2011,
Madafferi v. Australia, Views adopted on 26 July 2004, para. 9.7.
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