CRC/C/87/D/86/2019 Author’s comments on the State party’s additional observations 9.1 In his comments of 22 July 2020, the author notes that article 55 of the Federal Act on Administrative Procedure does not specify the grounds on which the appellate authority may restore suspensive effect to an appeal and that it must weigh the interests, over which it has broad discretion. It will only restore the suspensive effect if it is prima facie clear that the first authority did not consider or clearly misjudged overriding interests or if the solution adopted inadmissibly prejudges the final judgment and thus circumvents federal law. Specifically, there must be compelling reasons for immediate enforcement of the decision, such as the threat of significant harm, without requiring there to be extraordinary circumstances. Furthermore, the withdrawal of suspensive effect must be proportionate. The author asserts that, in the present case, it is hypocritical for the State party to argue that the author only had to request suspensive effect, in the absence of any assurance that suspensive effect would be granted. The author notes that the State Secretariat for Migration considers that, in the jurisprudence of the European Court of Human Rights, asylum appeals do not offer effective protection against deportation in the absence of suspensive effect. 13 9.2 The author argues that it was appropriate to present the annual cost of G.R.’s treatment since economic considerations are central to the issue of access to this treatment. He reiterates that, in view of the serious and irremediable risks to G.R.’s health, the absence of any guarantee of access to medical treatment for G.R. constitutes a violation of article 3 of the Convention and the principle of non-refoulement. Issues and proceedings before the Committee Consideration of admissibility 10.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol, whether the communication is admissible under the Optional Protocol. 10.2 The Committee notes the State party’s argument that the communication is inadmissible under article 7 (e) of the Optional Protocol in the absence of an appeal to the Federal Administrative Court against the decision of the State Secretariat for Migration of 24 April 2019. The Committee also notes that the lodging of such an appeal would not have automatically suspended the execution of the decision of the State Secretariat for Migration. It further notes that, according to the State party, the author and his family could have requested the Court to grant suspensive effect to such an appeal or to suspend the execution of the removal. However, it follows from the information submitted by the author, which has not been refuted by the State party, that the Court has discretion over such a request. Furthermore, the Committee notes that the State party has not provided any concrete evidence that such a request could have been granted in this case. In addition, the State party argues that the decision of the State Secretariat for Migration is duly reasoned and does not contain any formal defects. Thus, the Committee considers that there is no concrete indication that the lodging of an appeal against such a decision, taken on formal grounds, could have led to the suspension of the execution of the removal decision. Such a remedy, therefore, cannot be considered effective. 14 Furthermore, the Committee notes that, in the case before the Committee against Torture invoked by the State party, the author did not in any way justify his failure to refer the matter to the Federal Administrative Court, which is not the case here, where the author did justify his inability to lodge such an appeal within the five-day time limit on account of his lack of means to pay for a lawyer and the refusal to draft an application for legal aid by the free legal aid office to which he had applied. In the light of the foregoing, the Committee considers that article 7 (e) of the Optional Protocol does not constitute an obstacle to the admissibility of the communication. 10.3 As to the allegations of violations of the author’s and his wife’s rights on the basis of the consequences that their removal would have on their health, the Committee recalls that the Convention protects the rights of children and not those of adults and considers that this 13 14 8 State Secretariat for Migration, “Le recours contre les décisions négatives en matière d’asile”, p. 14. N.B.F. v. Spain (CRC/C/79/D/11/2017), para. 11.3; A.D. v. Spain (CRC/C/83/D/21/2017), para. 10.3.