CRC/C/86/D/83/2019- advance unedited version
been exhausted. Therefore, the Committee considers that there is no obstacle to the
admissibility of the communication under article 7 (e) of the Optional Protocol.
7.3
The Committee takes note of the State party’s argument that the author has not
sufficiently substantiated her claim that her daughter would be at risk of being subjected to
female genital mutilation if deported to Somalia. However, the Committee considers that, in
the light of the author’s allegations regarding the general situation of prevalence of female
genital mutilation in Somalia and the circumstances under which she would be returned, as a
single mother, the author’s claims based on articles 3 and 19 of the Convention have been
sufficiently substantiated for purposes of admissibility.
7.4
The Committee therefore declares admissible the author’s claims concerning the
obligation of the State party to: (a) act in the best interests of the child; and (b) take measures
to protect the child from all forms of physical or mental violence, injury or abuse, and
proceeds to their examination on the merits.
Consideration of the merits
8.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 10 (1) of the Optional Protocol.
8.2
The Committee takes note of the author’s allegations that her daughter’s deportation
to Somalia would expose her to the risk of being subjected to female genital mutilation, and
that the State party failed to take the best interests of the child into account when deciding on
the author’s asylum application, in violation of articles 3 and 19 of the Convention.
8.3
In that respect, the Committee recalls its general comment No. 6, according to which
States shall not return a child to a country where there are substantial grounds for believing
that there is a real risk of irreparable harm to the child, such as, but by no means limited to,
those contemplated under articles 6 and 37 of the Convention; and that such non-refoulement
obligations apply irrespective of whether serious violations of those rights guaranteed under
the Convention originate from non-State actors or whether such violations are directly
intended or are the indirect consequence of action or inaction. The assessment of the risk of
such serious violations should be conducted in an age- and gender-sensitive manner.21 In that
sense, the Committee advises that, “when assessing refugee claims…, States shall take into
account the development of, and formative relationship between, international human rights
and refugee law, including positions developed by UNHCR in exercising its supervisory
functions under the 1951 Refugee Convention. In particular, the refugee definition in that
Convention must be interpreted in an age- and gender-sensitive manner, taking into account
the particular motives for, and forms and manifestations of, persecution experienced by
children. Persecution of kin; under-age recruitment; trafficking of children for prostitution;
and sexual exploitation or subjection to female genital mutilation, are some of the childspecific forms and manifestations of persecution which may justify the granting of refugee
status if such acts are related to one of the 1951 Refugee Convention grounds. States should,
therefore, give utmost attention to such child-specific forms and manifestations of
persecution as well as gender-based violence in national refugee status-determination
procedures.”22
8.4
In the joint general recommendation No. 31 of the Committee on the Elimination of
Discrimination against Women/general comment No. 18 of the Committee on the Rights of
the Child, the Committees noted that female genital mutilation may have various immediate
and/or long-term health consequences.23 They recommend that the legislation and policies
relating to immigration and asylum should recognize the risk of being subjected to harmful
practices or being persecuted as a result of such practices as a ground for granting asylum
21
22
23
8
See the Committee’s general comment No. 6, para. 27; and the Committee on the Elimination of
Discrimination against Women general recommendation No. 32 (2014) on the gender-related
dimensions of refugee status, asylum, nationality and statelessness of women, para. 25.
See the Committee’s general comment No. 6, para. 74.
See the joint general recommendation No. 31 (2014) of the Committee on the Elimination of
Discrimination against Women/general comment No. 18 (2014) of the Committee on the Rights of
the Child on harmful practices, para. 19.