CRC/C/77/D/3/2016 advance unedited version

3.3
The author states that, under article 19 of the Convention, State parties are obliged to
protect children against any harm or violence. In doing so, they must always take into
consideration the best interests of the child.
3.4
The author claims that her daughter was discriminated against, in violation of article
2 of the Convention, because her case was only handled by the RAB without any access to
appeal. This was the result of her daughter being born in Denmark to a Somali mother and
no other child in Denmark could be subjected to a similar lack of fair trial guarantees.
3.5
The author notes that the RAB did not make any reference to the Convention on the
Rights of the Child in its decision.
State party’s observations on the admissibility and merits of the communication
4.1
In its observations dated 16 August 2016, the State party informs the Committee that
the RAB decision dated 2 February 2016 was replaced by a new RAB decision dated 14
March 2016, were the Board specified that the author and her daughter were to be deported
to the Puntland State of Somalia –where the author originated from- and no other part of
Somalia. However, the time limit for such deportation was suspended in light of the
Committee’s request for interim measures (see para. 1.2 above).
4.2
The State party informs the Committee that, pursuant to article 53a of the Danish
Aliens Act, decisions of the DIS are automatically appealed to the RAB unless the application
has been considered to be manifestly unfounded. The RAB is an independent, quasi-judicial
body that is considered as a “court or tribunal” within the meaning of article 46 of the Council
Directive on common procedures for granting and withdrawing international protection
(2013/32/EU). The chair and vice-chair of the RAB are required to be judges and other
members must be attorneys and serve with the central administration of the Ministry of
Foreign Affairs or the Ministry of Immigration, Integration and Housing. Its members
appointed by the Executive Committee of the RAB upon nomination by the Danish Court
Administration (in case of its judges) or by the Danish Refugee Council, the Minister of
Foreign Affairs and Minister of Immigration, Integration and Housing (in case of other
members). RAB members cannot seek instructions from the appointing or nominating
authority or organisation and they can only be suspended or dismissed by the Special Court
of Indictment and Revision (like judges serving in Danish courts). Decisions by the RAB are
final so there is no avenue for judicial appeal.
4.3
The State party further notes that, pursuant to section 7 (1) of the Danish Aliens Act,
a residence permit will be issued to an alien upon application if they fall within the
Convention Relating to the Status of Refugees (“the Geneva Convention”). Pursuant to
section 7(2) of the Aliens Act, a residence permit will also be issued to an alien if they risk
being subjected to death penalty or torture or ill treatment. The Refugee Appeals Board will
consider the conditions for issuing a residence permit under section 7(2) of the Aliens Act to
be met when there are specific and individual factors substantiating that the asylum- seeker
will be exposed to a real risk of death penalty or torture in case of return to their country of
origin. The Aliens Act further requires that any refusal of an asylum request be accompanied
by a decision on the existence of this risk. To ensure that the RAB makes its decision in
accordance with Denmark’s international obligations, the RAB and the DIS have jointly
drafted a number of memoranda describing in detail the legal protection of asylum-seekers
afforded by international law, in particular the Geneva Convention, the Convention against
Torture, the European Convention on Human Rights, and the International Covenant on Civil
and Political Rights.
4.4
Proceedings before the RAB include an oral hearing, where the asylum-seeker is
allowed to make a statement and answer questions. Decisions by the RAB are based on an
individual and specific assessment of the relevant case. The asylum seeker’s statements
regarding his grounds for asylum are assessed in light of all relevant evidence, including what
4

Select target paragraph3