CCPR/C/121/D/2594/2015
threat against the authors by the sister’s former husband, the Board reached the same
conclusion regarding the lack of credibility of such allegations. It added that, according to
new information, the sister’s son had been present during K.S.’s interview with the Danish
Immigration Service, rendering even more unlikely that K.S. had been unaware of his
sister’s situation. With regard to the situation of Afghan returnees, the Board noted that
several returns had taken place in collaboration with Afghan authorities since the issuance
of the note verbale referred to by the authors. Finally, with regard to the health situation of
M.S., the Board considered that such information was not itself relevant to the asylum
process and fell outside the competence of the Board as it was of a humanitarian nature and
should therefore be considered by the Ministry of Immigration, Integration and Housing in
the context of an application on humanitarian and compassionate grounds.
4.3
The State party argues that the authors have failed to establish a prima facie case for
the purpose of admissibility and that their allegations concerning an alleged risk of a
violation of the rights enshrined under article 7 are manifestly unfounded and therefore
inadmissible.
4.4
On the merits, the State party contends that the authors’ return to Afghanistan would
not violate article 7 of the Covenant. The State party recalls that the risk of irreparable harm
must be personal and that there is a high threshold for providing substantial grounds for
establishing such a risk. 13 The authors have not disputed the assessment made by the
Refugee Appeals Board that the grounds for their request for asylum had been based on the
authors’ fear of the Taliban but had not included the information contained in their
communication to the Committee. With regard to the other grounds, the authors have failed
to provide any new and specific information about their situation other than that already
assessed by the national authorities. The Board assessed thoroughly the facts and evidence
produced by the authors and the background information available on conditions in
Afghanistan, and concluded that no humanitarian grounds existed contrary to the
international obligations of Denmark. The authors disagree with the Board in its assessment
of evidence and background information, and purport to use the Committee as a fourth
instance.
4.5
With regard to M.S.’s health circumstances, the State party notes that the European
Court of Human Rights has in its decisions adopted a restrictive approach in cases where it
was submitted that article 3 of the Convention for the Protection of Human Rights and
Fundamental Freedoms would be violated in case of return of persons with health issues.
The State party notes that a case must present exceptional circumstances and compelling
humanitarian considerations for a return to be contrary to article 3 of the Convention. 14 The
State party maintains that the present case presents no such exceptional circumstances or
compelling humanitarian considerations as to render the refusal of residence on
humanitarian grounds contrary to the international obligations of Denmark, as considered
by the Ministry of Immigration, Integration and Housing in its decision of 14 November
2014. M.S. does not suffer from very serious physical or mental disorder requiring therapy
and, consequently, she fails to meet the criterion for being granted discretionary leave to
remain on medical grounds. Also, the State party’s practice to grant residence to Afghan
women who have no male family members or social network in Afghanistan owing to the
very harsh living conditions and limited possibility of survival for single women is not
applicable to M.S. since she would be returned together with her adult son, who has lived in
Afghanistan for many years.
4.6
With regard to K.S.’s religious stance, the State party contends that, as concluded by
the Refugee Appeals Board, he would not risk abuse contrary to article 7 of the Covenant in
Afghanistan owing to his agnostic persuasion and on the basis of background information
and his activities before and after his departure from Afghanistan. This is particularly true
when considering that K.S. originated from the city of Mazar-e Sharif — the third largest
13
14
The State party cites communication No. 2007/2010, J.J.M. v. Denmark, Views adopted on 26 March
2014, para. 9.2.
The State party cites the European Court of Human Rights decisions in D. v. the United Kingdom
(application No. 30240/96), adopted on 2 May 1997, and Bensaid v. the United Kingdom (application
No. 44599/98), adopted on 6 February 2001.
5