CCPR/C/119/D/2681/2015
cruel, inhuman or degrading treatment in violation of article 7 of the Covenant must be
based not only on assessment of the general conditions in the receiving country, but also on
the individual circumstances of the persons in question. These circumstances include
vulnerability-increasing factors relating to such persons, which may transform a general
situation that is tolerable for most removed individuals to intolerable for some individuals.
They should also include, in cases pertaining to the Dublin II Regulation, indications of the
past experience of the removed individuals in the country of first asylum, which may
underscore the special risks they are likely to be facing and may render their return to the
country of first asylum a particularly traumatic experience for them.
7.8. In the present case, the Committee considers that the State party’s position, as
reflected in the decisions of Danish Immigration Service and Refugees Appeals Board, did
not adequately take into account the particular situation of vulnerability of the authors and
their family and the information they provided about their own personal experience that,
despite being granted a residence permit in Italy, they faced intolerable living conditions
there. In that connection, the Committee notes that the State party does not explain how, in
case of a return to Italy, the residence permits would protect them and their four children
from the severe same hardship and destitution, which the authors had already experienced
in Italy, if they and their children were to be returned to that country.
7.9
The Committee recalls that States parties should give sufficient weight to the real
and personal risk a person might face if deported 27 and considers that it was incumbent
upon the State party to undertake an individualized assessment of the risk that the authors
and their four very young children would face in Italy, rather than rely on general reports,
which do not all support the State party’s assessment, and on the assumption that, as the
authors had benefited from subsidiary protection in the past, they would still, in principle,
be entitled to housing, work and receive social benefits in Italy. The Committee considers
that the State party failed to take into due consideration the special vulnerability of the
authors and their children. Notwithstanding their formal entitlement to subsidiary protection
in Italy, they faced homelessness and they lived in an abandoned building, were not able to
find work, F.H.M. had serious difficulties in gaining access to health care during her
pregnancy and birth of their two children in Italy, and, after the authors went to Finland and
were returned to Italy, they were not offered access to housing, medical care, social benefits
or an integration programme by the Italian authorities. The Committee considers that,
although the State party claims that it has obtained the consent of the Italian authorities to
admit the authors into Italy following the failed attempt to deport the authors to Italy on
8 April 2014, the State party has failed to seek proper assurances from the Italian
authorities that the authors and their four children will be received in conditions compatible
with their status as international protection seekers entitled to protection and the guarantees
under article 7 of the Covenant, which include undertakings by Italy: (a) to renew the
authors’ and their children residence permits so that they would not be deported from Italy;
(b) to issue resident permits to the authors’ two youngest children, who were born in
Denmark; and (c) to receive the authors and their children in conditions adapted to the
children’s age and the family’s situation of vulnerability, which would enable them to
remain in Italy and to enjoy there international protection de facto.28 Consequently, the
Committee considers that, in the light of the particular circumstance of the case and given
the shortcoming of the decisions of the Danish authorities, the removal of the authors and
their four children to Italy, without the aforementioned assurances, would amount to a
violation of article 7 of the Covenant.
27
28
12
Ibid.
See Warda Osman Jasin v. Denmark (footnote 16 above), para 8.9; and Abdilafir Abubakar Ali et al
v. Denmark (see footnote 20 above), para.7.8.