CCPR/C/114/D/2360/2014
Appendix II
Individual opinion of Committee members Yuval Shany and
Konstantine Vardzelashvili (concurring)
1.
We agree that, in the circumstances of the case, deporting the author and her
children to Italy without undertaking an individual assessment of their personal
circumstances and without considering the need to obtain proper assurances from the Italian
authorities that they will be able to access the most basic social services would violate
article 7 of the Covenant. Still, we wish to clarify an aspect that was not sufficiently
explained in the Committee’s Views. We believe that the Committee’s approach should
have been based more explicitly on the unique status of the author and her children as
asylum seekers entitled to subsidiary protection and not merely on the economic destitution
that she had experienced and may experience again if deported to Italy. For us, it is this
unique status that gives rise to the obligation of the State party not to the deport the author
and her children to Italy.
2.
The status of asylum seekers entitled to subsidiary or complementary protection is
specifically regulated in Executive Committee (ExCom) Conclusion No. 103(LVI) (2005)
of the United Nations High Commissioner for Refugees (UNHCR)a and governed, for most
European Union member States, including Italy, by the system of allocation of
responsibilities introduced by Council Regulation (EC) No. 343/2003 (Dublin II
Regulation) as amended by Council Regulation (EC) No. 604/2013 (Dublin III
Regulation).b According to these instruments, persons entitled to subsidiary protection must
not be returned to their countries of origin or to ‘unsafe’ third countries (non-refoulement);c
and according to the relevant UNHCR interpretative guidelines d and Council directives,
they should also be able to enjoy basic economic and social rights in the receiving
countries.e In fact, these two entitlements appear to be, at least in some cases, closely
interrelated, as the inability to exercise the most basic economic and social rights, which
would enable asylum seekers to stay in the country of asylum, may eventually leave them
no choice but to return to their country of origin, effectively rendering illusory their right to
non-refoulement under international refugee law. f The same logic applies to the nona
b
c
d
e
f
14
UNHCR, ExCom Conclusion No. 103(LVI) (2005), Conclusions on the provision on international
protection through complementary forms of protection.
Council of the European Union, Council Regulation (EC) No. 343/2003 of 18 February 2003 (Dublin
II Regulation); and European Parliament and Council of the European Union, Regulation (EU) No.
604/2013 of 26 June 2013 (Dublin III Regulation).
See UNHCR, ExCom Conclusion No. 103 (LVI) (2005) (note a above), para. (m); Dublin II
Regulation, preambular para. 2 and art. 2 (c); and Dublin III Regulation, preambular paras. 3 and 10.
UNHCR, Complementary Forms of Protection: Their Nature and Relationship to the International
Refugee Protection Regime, 9 June 2000 (EC/50/SC/CRP.18), para. 17.
Council of the European Union, Council Directive 2004/83/EC of 29 April 2004 (the Qualification
Directive), arts. 28-29, as amended by European Parliament and Council of the European Union,
Directive 2011/95/EU of 13 December 2011 (the recast Qualification Directive), arts. 29-30, which
confers basic benefits on those entitled to subsidiary protection. These provisions resemble Council
Directive 2003/9/EC of 27 January.2003 (the Reception Directive), art. 13, as amended by European
Parliament and Council of the European Union Directive 2013/33/EU of 26 June 2013 (the recast
Reception Directive), arts. 17-19, which confers basic benefits on asylum seekers.
See, for example, Penelope Mathew, Reworking the Relationship between Asylum and Employment
(New York, Routledge, 2012), p. 88; and James C. Hathaway and Michelle Foster, The Law of
Refugee Status, 2nd ed. (Cambridge, Cambridge University Press, 2014) 348.
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