CCPR/C/116/D/2409/2014
diagnosed. The authors allege that they were exposed to violence. In February or March
2012, for example, Abubakar Ali was attacked by three persons who kicked him until he
fell to the floor. The police intervened but did not take any measure against the aggressors.
They just told the authors not to sleep at the train station. The authors did not file a
complaint because they could not speak Italian.
2.4
Because of the very bad conditions they were facing, the authors decided to leave for
Denmark, where they arrived on 20 June 2012 and applied for asylum. On 24 April 2013,
the Danish Immigration Service decided that, even though the authors were in need of
subsidiary protection, they should be transferred to Italy, as it was their first country of
asylum. On 7 October 2013, the Refugee Appeals Board upheld the decision of the Danish
Immigration Service, finding that the case of the authors fell under section 7 (2) of the
Aliens Act 4 and, consequently, that the question was if Italy could serve as their first
country of asylum, in accordance with section 7 (3) of that Act. 5 The Board indicated that,
for a country to be considered as the first country of asylum, it must, at a minimum, be a
place where the authors were protected against refoulement, were able to enter and stay
lawfully, and had their personal integrity and safety protected. Taking into account the
information provided by the Italian authorities and by the authors,6 the Board considered as
a fact that both authors had been granted residence in Italy under the Convention relating to
the Status of Refugees. The Board further stated that the concept of protection comprises
certain social and financial elements that allow asylum seekers to enjoy basic rights and
that the authors would be able to obtain, including rights affecting their socioeconomic
conditions in Italy, their first country of asylum.
2.5
On 21 May 2013, the authors’ son underwent heart surgery in Denmark after the
doctors diagnosed him with a congenital heart defect. According to the authors, the doctors
also concluded that the baby had not been sufficiently examined at the hospital in Italy
when he was born. In November 2013, Mayul Ali Mohamad gave birth to Abdilafir
Abubakar Ali, in Denmark.
2.6
The authors claim that they have exhausted all available domestic remedies, as the
decision of the Refugee Appeals Board of 7 October 2013 is final and cannot be appealed.
They contend that the Board based its negative decision on the fact that they had received a
temporary residence permit in Italy, that they could enter and reside there legally, and that
they may obtain adequate socioeconomic conditions there as well.
The complaint
3.1
The authors submit that, by forcibly returning them and their children to Italy, the
Danish authorities would violate their rights under article 7 of the Covenant. 7 They submit
that, since they were asked to leave the asylum centre early in 2012, they have not been
4
5
6
7
GE.16-10042
Section 7 (2) reads: “Upon application, a residence permit will be issued to an alien if the alien risks
the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in
case of return to his country of origin …”.
Section 7 (3) reads: “A residence permit under subsections (1) and (2) may be refused if the alien has
already obtained protection in another country, or if the alien has close ties with another country
where the alien must be deemed able to obtain protection.”
In its decision, the Refugee Appeals Board does not specify what information was received from the
Italian authorities. It highlights that the authors made contradictory statements regarding whether they
requested help from the Italian authorities in relation to their situation, in particular regarding their
son’s health.
The authors cite the following: European Court of Human Rights, M.S.S. v. Belgium and Greece,
application No. 30696/09, judgment adopted on 15 December 2010, and Samsam Mohammed
Hussein and Others v. the Netherlands and Italy, application No. 27725/10, decision adopted on 2
April 2013.
3