CCPR/C/112/D/2243/2013
party’s interpretation of the Danish Supreme Court ruling in case No. 194/2009. The author
claims that, under section 50 of the Aliens Act, there is “only one opportunity to review a
case on its merits, but a request regarding the review under section 50 in the Aliens Act can
be done several times, if it earlier on has been dismissed due to the fact that the time
conditions ha[ve] not been met to let the case undergo a review on its merit[s]”.
6.2
The author notes that the State party has not addressed the claims submitted on
behalf of his children. He reiterates that they are victims of a violation of articles 23 and 24
of the Covenant, and argues that the deportation would inflict irreparable damage not only
on him, but also on his children and their family life. In addition, the author considers that
the security risks in Afghanistan are currently high and that the Afghan authorities would
not be in a position to guarantee his safety. He claims that there is a significant risk of
irreparable damage that might have far-reaching consequences for his children.
6.3
On 6 January 2014, the author provided further comments on the State party’s
observations and reiterates his claims. He notes that he has still not been confirmed as an
Afghan citizen and that this increases the risk of statelessness.
6.4
In view of the his present circumstances, the author maintains that the decision of
the Eastern High Court to uphold the expulsion order and the application of a permanent reentry ban should be considered as arbitrary, unreasonable or disproportionate, and therefore
contrary to articles 2, 23 and 24 of the Covenant, keeping in mind the relevant provisions of
the Convention of the Rights of the Child.
6.5
As to his and his ex-wife’s expectation of being able to have a family life in
Denmark since the expulsion decision in 2005, the author does not agree that “this is an
important or decisive criteri[on] in the assessment [of] this case”.
6.6
The author notes that the case of Stewart v. Canada is different from the present
case, in which subsequent circumstances should give rise to a re-assessment of the
deportation order, especially in view of the time elapsed. The author also argues that he
keeps in close contact with his father, stepmother and five siblings and has a strong family
life with his children and ex-wife, despite him being in prison or facing significant
restrictions. He reiterates that he is prevented from presenting relevant information about
his current circumstances, which was not considered during the review under section 50 of
the Aliens Act, in particular the fact that he is not registered as an Afghan national and
about his close relation with his two children.
6.7
If the Committee does not prima facie find that the lack of a legal remedy itself
constitutes a violation of article 13 of the Covenant, and that, thereby, articles 2, 23 and 24
are violated, the author requests the Committee not to confine itself to ‘procedural
arbitrariness’ as in the case of Stewart v. Canada, but rather to carry out a detailed
assessment/balancing of the proportionality of the entry ban. The author recalls that in the
case of Amrollahi v. Denmark, the European Court of Human Rights considered it decisive
that the applicants’ wife and children could not be expected to go to Iran, and concluded
that the expulsion of the applicant to that country would have been disproportionate to the
aims pursued. In the present context, the author claims that although he has committed
serious crimes several times, he cannot be considered a serious threat to national security or
public order.
State party’s additional comments
7.1
On 14 February 2014, and with reference to the author’s further submission of 6
January 2014, the State party provided additional comments in relation to the author’s
claim on behalf of his children.
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