Z.D. v. Sweden

The author of the communication is Z.D., who states that she is a Burundian citizen born in 1987. She submits the application on her own behalf and on behalf of her daughter, M.M., born in 2020. Their application for asylum has been denied in the State party and they are facing deportation to Zambia. The author claims that their rights under the Covenant would be violated if they were deported to Zambia.⁴ The Optional Protocol entered into force for the State party on 23 March 1976. The author is not represented by counsel.

4. The author does not indicate under which articles of the Covenant she is submitting her claims. ↩

On 13 June 2019, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, requested the State party to refrain from removing the author to Zambia while her case was under consideration by the Committee.

On 18 October 2021, pursuant to rule 93 (1) of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, denied the State party’s request to examine the admissibility of the communication separately from the merits. On the same date, the Committee, acting through its Special Rapporteurs on new communications and interim measures, following a request from the author, joined the author’s daughter to the communication. The Committee decided not to accede to the State party’s request to lift the interim measures and the State party was requested to refrain from removing the author and her daughter to Zambia while the communication was pending before the Committee. Likewise, on 16 January 2024, the Committee, acting through its Special Rapporteurs on new communications and interim measures, rejected the State party’s renewed request to lift the interim measures.

The author was born in Rwanda. Her parents were both nationals of Burundi, but they had fled to Rwanda at the time of the author’s birth, in 1987. The family had to repeatedly flee their home due to war and unrest and they fled Rwanda and went to the Democratic Republic of the Congo in 1994, and eventually returned to Burundi.

The author claims that in Burundi she had problems with the Imbonerakure, the youth wing of the ruling party in Burundi, as they wanted her to join their activities. Her maternal uncle was a general in the army in Burundi and he had urged the President not to run for a third term in office. Because of this, he was fired from his position and forced out of the ruling party. He was accused of participating in a failed coup attempt in 2015. After this event, the Imbonerakure started threatening the author, telling her that she no longer had anyone who could protect her. She was attacked several times, including at her home, by militia. She managed to escape and, fearing being killed, tortured or imprisoned, she fled to Zambia.

In Zambia, a friend helped her obtain a Zambian passport and a visa for Sweden. The author arrived in Sweden in 2015 and applied for asylum as a Burundian citizen based on her Burundian identification card. Her asylum interview was held in Kirundi, an official language of Burundi. The Migration Agency rejected her application for asylum on 14 December 2017. It noted her claims that she had been threatened by the Imbonerakure and that the family had been attacked following her uncle’s alleged participation in the failed coup attempt in 2015. It noted that she claimed to have obtained a false Zambian passport on which she had travelled to Sweden. It also noted that, in support of her identity, she had submitted a copy of her birth certificate, on which her nationality was indicated as Burundian, and a Burundian identification card. The Agency, however, noted that a check of her fingerprints in the Visa Information System showed that she had applied for, and obtained, a visa for Sweden at the Swedish Embassy in Lusaka, Zambia. The visa had been obtained under the identity Z.N. and under Zambian citizenship. The Agency stated in its findings that the identification card and birth certificate that the author had submitted to prove her identity were of a simple nature and that they were easy to manipulate and reproduce. It found that the documents were therefore of low probative value. The Agency noted the information from the Embassy in Lusaka that, in support of the visa application, a copy of the author’s Zambian identification card had also been submitted. It noted that, according to the Embassy, a copy of the Zambian passport had not been retained in the visa application file. In addition, the Embassy had informed the Agency that three other persons had applied for a visa at the same time as the author. Two were later arrested by Zambian police as they did not have Zambian identification cards, only passports. After an investigation it had become clear that they obtained the passports by bribing Zambian authorities. The Migration Agency concluded, however, that the fact that those two passports were false did not mean that the author’s passport was also false, and it noted in this regard that the author had had a Zambian identification card, unlike those who had been arrested. It found her details about how she had obtained the alleged false passport to be vague and lacking in detail, and that she had only stated that she obtained help in Zambia in order to acquire it but that she did not know how it was accomplished, only that her photograph and fingerprints had been taken. The Agency noted that the author had not submitted the Zambian passport to the immigration authorities and that it had therefore been unable to verify the authenticity of the passport. It concluded, based on the Visa Information System and the fact that the author had not been able to explain how she had obtained a false passport and the visa, that her claims would be assessed against conditions in Zambia as she had not substantiated being a Burundian citizen. It noted that she had not raised any asylum claims regarding Zambia and it rejected her application for asylum.

The author appealed the decision to the Migration Court. In her appeal she also submitted a copy of her baptism certificate from Burundi, her parents’ marriage certificate from Rwanda, on which it was indicated that they were Burundian refugees, and a letter from an opposition political leader from Burundi, according to which the author was a member of the opposition party. The Court found the documents to be easy to falsify and of low probative value. It upheld the decision of the Migration Agency in a decision of 23 August 2018. The author’s appeal to the Migration Court of Appeal was rejected on 2 October 2018.

The author argues that she has done everything possible to substantiate her claim that she is a Burundian citizen and that the documents submitted by her during the asylum proceedings clearly indicate that she is Burundian. She did all her asylum interviews in the official language of Burundi, Kirundi; she could not be fluent in Kirundi if she were a Zambian national as it is not a language spoken in Zambia. She notes that she obtained the false Zambian passport to be able to flee to Sweden as she feared for her life and had no other options, and that she has no connections to Zambia.

On 26 October 2018, the author made an application for impediment to enforcement of the deportation decision against her. She made the application on the basis of having obtained a copy of her old Burundian passport, issued in 2006. After having obtained the original passport, she submitted it to the Migration Agency on 18 February 2019. The Agency rejected the application on 18 March 2019. It noted that the Burundian passport had expired in 2011, that it was unsigned and that that type of passport was no longer being issued by Burundi. It found that the fact that the author had submitted an expired Burundian passport did not substantiate that she was not a Zambian citizen. The author, however, notes that she acquired the Burundian passport at a time when that type of passport was still being issued. The rejection of her application was upheld by the Migration Court and the Migration Court of Appeal on 4 April and 8 May 2019, respectively.

The author claims that, together with a friend, she contacted the Zambian Embassy in Stockholm in order to enquire about what would happen if she were to be removed to Zambia, and she states that a staff member at the Embassy confirmed that she would be removed to Burundi, if deported to Zambia. She also claims that, in a meeting on 25 April 2019, the First Embassy Secretary at the Zambian Embassy told her that she would be imprisoned and deported to Burundi upon her return to Zambia.

The author claims that, if she is deported to Zambia, she will be removed to Burundi as she is not a Zambian citizen and she would be unable to receive international protection in Zambia. She claims that, in Burundi, she would be at risk of being killed, tortured or raped by members of the Imbonerakure or the authorities.

The author also claims that, if deported to Zambia, she would be at risk of being detained there before her removal to Burundi. She notes that asylum-seekers in Zambia are detained in overcrowded, unsanitary and unsafe conditions. They are detained together with convicted criminals and are at risk of assault and abuse, including sexual assault.

On 12 August 2019 and 16 January 2020, the State party submitted its observations on the admissibility of the communication. It submits that the author’s claims should be found inadmissible as insufficiently substantiated for the purpose of admissibility.

The State party notes that the author first came into contact with Swedish authorities when she applied for a visa at the Swedish Embassy in Lusaka. On 29 May 2015, she was granted a visa to visit Sweden between 10 June and 29 July 2015. She subsequently travelled to Sweden and applied for asylum on 16 June 2015.

The State party provides information regarding the Swedish migration authorities’ investigation and examination of an applicant’s cited identity and citizenship. On 27 June 2019, the Migration Agency issued three legal position papers regarding the requirement of proving one’s identity and methods to investigate a cited identity. The Agency’s position papers are general recommendations developed in order to achieve a uniform application of law within the Agency. When a person applies for asylum in Sweden, the Migration Agency is to examine whether the asylum-seeker would risk being exposed to treatment suggesting that there is a need for international protection within the meaning of the Aliens Act upon return to the country of citizenship or, for a stateless person, to the habitual place of residence. The country, or part of a country, from which a person originates can be a deciding factor in whether the person is to be granted a residence permit or not. Furthermore, the burden of proof lies with the applicant, who must establish his or her identity, citizenship, residence or habitual place of residence and cited need for protection. However, the Migration Agency has a duty to fully investigate the circumstances that need to be clarified in matters regarding asylum. This means, inter alia, that the Agency is to assist the applicant by giving him or her the opportunity to plausibly demonstrate the cited grounds for protection. The Migration Court of Appeal has furthermore stated the following regarding the evidentiary requirement for identity in matters of asylum: it is a fundamental principle that the asylum-seeker must plausibly demonstrate his or her need for international protection to be granted a residence permit. From this follows that the asylum-seeker must also plausibly demonstrate his or her identity. An asylum-seeker can prove his or her identity by submitting identity documents. The Migration Agency may, if the applicant lacks such documents, assess whether he or she can plausibly demonstrate the cited identity, citizenship, residence or habitual place of residence on account of his or her oral submissions.

The State party notes that, in the present case, the migration authorities have not conducted an examination of the author’s cited need for protection against any alleged threat in Burundi or because of the general situation there, as she was assessed to be a Zambian citizen. The State party stresses that the domestic authorities have conducted a thorough investigation of the author’s identity and citizenship, finding that she is a Zambian citizen. Furthermore, it argues that the author has not, to any extent, shown that the domestic authorities’ evaluation of the submitted facts and evidence regarding her identity was manifestly arbitrary or amounted to a denial of justice. The State party also stresses that no expulsion order to Burundi exists, and it argues that nothing has emerged in the complaint to indicate that the author would risk deportation from Zambia to Burundi. The State party therefore submits that the communication should be declared inadmissible as being manifestly unfounded.

Regarding the domestic proceedings, the State party notes that the Migration Agency held an introductory interview with the author in connection with her asylum application on 17 June 2015, during which the Agency informed her that her registered identity would be changed in accordance with the information that emerged from the supporting documents that were submitted as part of her visa application in Zambia. She was also informed that her identity needed to be investigated further, which is why the Agency had invited her to provide additional evidence in that regard. The minutes from the interview were communicated to the author’s public counsel on 2 September 2015. On 4 January 2016, an extensive asylum interview, lasting more than two hours, was held in the presence of the public counsel. During the interview, the author was, inter alia, invited to account for her identity, how she had travelled to Sweden and how she had acquired the Zambian passport and the visa. The minutes from the investigation were subsequently communicated to the public counsel. On 27 January 2017, a supplementary asylum interview, again lasting for more than two hours, was held in the presence of the public counsel. The author was again invited to account for her identity and any corroborating evidence, as well as her reasons for seeking asylum. The interviews were all conducted with the assistance of interpreters, whom the author confirmed that she understood well. Through her public counsel, the author has been invited to scrutinize and submit written observations on, inter alia, the minutes from the interviews and to make written submissions and appeals. It follows from this background that she has had ample opportunities to explain the relevant facts and circumstances in support of her claim and to argue her case, orally as well as in writing, before the Migration Agency and in writing before the Migration Court. It must thus be considered evident that the Migration Agency and the Migration Court, with the available facts and documentation in the case, made a wellinformed, transparent and reasonable evaluation concerning the author’s identity and accordingly assessed her need for protection.

The State party notes that the domestic migration authorities stressed the importance to the author of substantiating her cited identity and explained that she was required to plausibly demonstrate her identity by submitting identification documents or by providing a reliable and credible oral account. The domestic authorities furthermore clarified that the burden of proof lies with the asylum-seeker, who must plausibly demonstrate his or her cited identity, which is generally done by submitting a valid passport or other valid identification documents. In the author’s case, the Migration Agency contacted the Swedish Embassy in Zambia and requested copies of the information and identification documents that had been submitted as part of her visa application. From those documents, it emerged that she had had a Zambian passport and a Zambian national registration card when she applied for the visa. The documents also stated that the Embassy’s First Secretary had concluded that her Zambian national registration card was authentic and had been issued by the Zambian Department of National Registration, Passport and Citizenship. The Agency considered the author’s oral account regarding her citizenship to be vague and lacking in detail as she could not describe how she was able to obtain a forged Zambian passport or explain how it had been issued. The Agency also held that she was unable to explain why the passport had been issued 12 days before she claimed to have arrived in Zambia. Against that background, the Agency found reason to question the reliability of the author’s account regarding her cited identity. In accordance with the information in the documentation that was submitted as part of the visa application, the Migration Agency registered the author as a Zambian citizen. Her cited need for international protection in Sweden was accordingly assessed with regard to the prevailing situation in Zambia. Since she had not invoked any grounds for protection against Zambia, the Agency decided to reject her application for asylum in Sweden and to expel her to Zambia.

After the expulsion order had become final and non-appealable, the author submitted an application for a new examination of the issue. In support of her application she submitted a Burundian passport, allegedly sent to her by an acquaintance in Burundi. On 17 April 2019, the Migration Agency’s Identification Unit examined the authenticity of the submitted Burundian passport and concluded with certainty that the passport was not an authentic Burundian passport. It emerged, inter alia, that the passport was missing pages, lacked verifiable details and a signature and had also expired. Furthermore, according to the Agency’s database, that particular kind of passport was no longer issued by Burundian authorities. In the light of the information, the Migration Agency and the Migration Court considered that the passport was insufficient to substantiate the author’s claim that she was a Burundian citizen. The State party submits that there is nothing to indicate that the evaluation of the submitted facts and evidence in the author’s case was manifestly arbitrary or amounted to a denial of justice.

The State party notes that it does not contest the fact that all available domestic remedies have been exhausted regarding the circumstances that have been submitted in the domestic proceedings concerning the author’s application for asylum. However, it notes that the author, in her complaint before the Committee, has alleged new information regarding her need for protection in relation to Zambia that has previously not been examined by the State party’s migration authorities. During the domestic asylum proceedings, the author stated that she would be in need of international protection upon her return to Zambia since Burundians are not granted asylum and can be abused there. However, in her complaint before the Committee, she also claimed that she would be imprisoned and tortured in Zambia. The State party notes that it may be argued that this claim should be disregarded by the Committee as domestic remedies have not been exhausted. The State party stresses, regarding the author’s statement that refugees and asylum-seekers are imprisoned in overcrowded prisons in Zambia, that the State party’s migration authorities deemed the author to be a Zambian citizen. Accordingly, her cited need for protection was assessed on that basis and not on the basis that she, upon return there, would be regarded as an asylum-seeker or a refugee. It reiterates its position that there is no reason to deviate from the domestic authorities’ assessments of the author’s citizenship. Consequently, there is not sufficient support for her claim that she will be treated as anything other than a Zambian citizen upon her return to Zambia.

As to the author’s and her friend’s alleged conversation with a staff member at the Zambian Embassy in Sweden, the State party argues that the author has not provided any information as to this claim and it notes that there is no mention of who the friend is, when and where the conversation took place or who the staff member was. It submits that this claim is therefore insufficiently substantiated. It notes that the author claims that, during a meeting at the Zambian Embassy in Sweden on 25 April 2019, the First Embassy Secretary told the author that she would be imprisoned and deported to Burundi upon her return to Zambia. The State party argues that this claim is unsupported by any evidence and is in fact contradicted by the Migration Agency’s official note dated 26 April 2019. In this note, the following is stated: the First Embassy Secretary noted that the Zambian passport and national registration card, which formed the basis for the author’s visa application at the Swedish Embassy in Lusaka, were authentic documents issued by the Zambian Department of National Registration, Passport and Citizenship. When asked by the author about what would happen to her upon her return to Zambia, the First Secretary stated that he did not know. When the author explained that the people who acquired visas at the same time as her were later arrested at the airport, the First Secretary stated that, since Zambia was a democratic country, people could be arrested for committing an offence. That might lead to ordinary criminal proceedings, similar to those in Sweden. When asked by the author if the Government of Zambia would assess whether she was a Zambian citizen, the First Secretary replied that, since she had Zambian identity documents and Sweden had investigated her case and decided that she should return to Zambia, the Zambian authorities would not oppose the Swedish decision and would issue travel documents for the author in accordance with the Swedish authorities’ request.

On 17 February 2022, the State party submitted its observations on the merits and further observations on the admissibility of the communication. It reiterates its submission that the communication should be found to be inadmissible as being manifestly unfounded. The State party argues that the complaint does not contain any relevant new circumstances that have not already essentially been assessed by the domestic authorities. The State party argues that the author has not shown that there is any reason to conclude that the rulings by the domestic authorities – which are specialized bodies with particular expertise in the field of asylum law and practice – were inadequate, or that the outcome of the domestic proceedings was in any way arbitrary or amounted to a manifest error or denial of justice. It submits that the author has therefore not established that she and her daughter run a foreseeable, present, personal and real risk of treatment contrary to article 7 of the Covenant if returned to Zambia.

On 12 October 2020, the author submitted her comments on the State party’s observations on admissibility. She maintains that the communication is admissible.

The author reiterates her argument that she would be arrested in Zambia if she was returned there as she used a false Zambian passport in order to travel to Sweden and that she would, after her detention, be deported to Burundi. She notes that, in order to establish her Burundian nationality, she has submitted her birth certificate, identification card, passport and baptism card, her parents’ marriage certificate and letters in Kirundi, all to no avail as the State party authorities are still relying on a fraudulently obtained passport. She stresses that the migration authorities have made no attempt to establish her identity with the Burundian authorities, and she argues that there is no further evidence or documents that it would be possible for her to obtain, considering all the documents that she has already submitted to the migration authorities. She notes that her visa for Sweden was granted one day after her application was submitted, and that this fact was questioned by the State party’s migration officials during her asylum proceedings as they noted that normally it would take three months to process a visa application. She argues that this fact also substantiates her claim that her Zambian passport and the subsequent visa were fraudulently obtained by intermediaries in Zambia.

The author states that her daughter, M.M., was born on 30 April 2020 in Sweden. On 8 March 2021, the author’s request for a residence permit for her daughter was denied by the Migration Agency as her protection needs were found to be covered by those of the author. The decision was upheld by the Migration Court and the Migration Court of Appeal on 11 May and 30 June 2021, respectively.

On 9 January 2023, the author submitted her comments on the State party’s observations on the merits. She reiterates her argument that if she is deported to Zambia she will be removed from Zambia to Burundi, as she is not a Zambian citizen and used a false passport to travel to Sweden.

On 15 March 2024, the State party submitted further observations on the complaint. It notes that, on 2 October 2022, the author’s expulsion decision became statute-barred. On 17 October 2022, the author submitted a new application for asylum, maintaining that she was a Burundian citizen and claiming that she risked being killed in Burundi because of her political opinion. She claimed that she could not travel to Zambia because Burundian citizens were ill-treated there and had no possibility of being granted asylum. On 4 September 2023, the Migration Agency rejected the author’s application and decided to expel her to Zambia. As regards the author’s identity and place of residence, the Agency noted that it had encouraged her to visit the Burundian Embassy to apply for a new passport and informed her that the Agency would only change her identity information if she submitted a valid passport. However, at the time of the Agency’s decision, she had not submitted a passport. The Agency noted that the author had submitted an email with an audio file, stating that it was from her visit to the Zambian Embassy. The Agency noted that her visit to the Embassy had previously been documented in her case, and that it had not emerged that there were any errors in the information previously documented. An audio file from the visit did therefore not change the Agency’s previous assessment.

The State party notes that, in her application, the author also submitted a copy of a certificate from the Burundian Embassy in Germany, claiming that it had established that she was a Burundian citizen. The Agency found that the copy was of low probative value. It also notes that, in the letter, it was not stated whether the author was a citizen of Burundi or not, but only that the Embassy could not issue a passport on the basis of the documents in her possession. The Migration Agency did not find reason to make a different assessment regarding the author’s identity than the one previously made. The information previously registered would therefore remain. The Agency noted that the author had not plausibly demonstrated her identity, nor her alleged residency in Burundi. Since she was registered as a Zambian citizen, her need for protection would be examined with regard to the prevailing situation there. As to the author’s need for protection, the Agency found that she had not plausibly demonstrated that she would risk ill-treatment in Zambia.

The author appealed the Agency’s decision to the Migration Court, which rejected the appeal on 13 December 2023. As regards her identity, the Court noted that her citizenship had been examined during the first asylum proceedings and that it had been considered established that she had been registered under the correct identity information. The Court therefore agreed with the Agency that she was required to present valid identity documents in order to change the previous assessment. The Court noted that the author had submitted written evidence which, as such, spoke in favour of her having a Burundian citizenship. However, she had still not presented any valid and acceptable identity documents demonstrating her alleged identity. Against this background, the Court did not find reason to make a different assessment than that made by the Agency in that respect. On 8 February 2024, the Migration Court of Appeal refused leave to appeal, and the author’s second expulsion decision became final and non-appealable.

On 16 March 2024, the author submitted her comments on the State party’s additional observations. She notes that, in October 2022, she was informed by the migration authorities that the expulsion order against her had become statute-barred. She therefore submitted a renewed request for asylum on the same ground as her previous one, namely the fear of being returned to Burundi. During the renewed proceedings, the question of her cited citizenship was once again brought up and she was informed by the Migration Agency that, in order for her to prove her identity, she would need to submit a valid Burundian passport. She explained that this was impossible as passports could only be issued if a person was physically in Burundi. She again reiterated that she had submitted several other documents establishing her identity, but it became clear to her that the Agency would never accept those documents and she had therefore decided to contact the Burundian Embassy in Germany. She was informed by letter from the Embassy that, since passports were biometric, Burundian embassies were unable to issue them and that they could only be issued to applicants in Burundi. Despite this information, her application was once again rejected by the migration authorities on the same grounds as in the previous decisions.

Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the State party’s submission that the author’s claims regarding her alleged risk of imprisonment and ill-treatment in Zambia should be found to be inadmissible for failure to exhaust domestic remedies as this claim was not raised by the author during the domestic proceedings. The Committee, however, notes that, in the examination of the author’s renewed application for asylum, submitted in October 2022, the State party’s authorities, in their assessment of the author’s claims, concluded that she had not established that she would be at risk of ill-treatment in Zambia on account of her Burundian citizenship and that she had not plausibly demonstrated that she would risk illtreatment in Zambia on any other ground. The Committee therefore finds, based on the grounds raised by the author in her renewed application for asylum, that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining said claim.

The Committee also notes the State party’s submission that the communication should be found to be inadmissible as being manifestly ill-founded. It further notes, however, the author’s claim that, if removed to Zambia, she would be deported to Burundi as she is a Burundian, not a Zambian, citizen and she would have no possibility of obtaining international protection in Zambia. It notes her claim that, in Burundi, she would risk being killed or subjected to ill-treatment and imprisonment due to her and her family’s perceived political opinion and standing. The Committee considers that the author has sufficiently substantiated these claims, which raise issues under articles 6 and 7 of the Covenant, for the purpose of admissibility. Accordingly, the Committee declares the communication admissible as concerns the author’s claims under articles 6 and 7 of the Covenant and proceeds to its examination on the merits.

The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee notes the author’s claims that, if removed to Zambia, she would be deported to Burundi as she is a Burundian, not a Zambian, citizen and she would have no possibility of obtaining international protection in Zambia. It also notes her claim that, in Burundi, she would risk being killed or subjected to ill-treatment and imprisonment due to her and her family’s perceived political opinion.

The Committee recalls its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, in which it referred to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory when there were substantial grounds for believing that there was a real risk of irreparable harm such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed (para. 12). The Committee has also indicated that the risk must be personal⁵ and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists.⁶ All relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin.⁷ The Committee recalls that it is generally for the organs of States parties to examine the facts and evidence of the case in question in order to determine whether such a risk exists,⁸ unless it can be established that the assessment was clearly arbitrary or amounted to a manifest error or denial of justice.⁹

5. For example, X v. Denmark (CCPR/C/110/D/2007/2010), para. 9.2; P.T. v. Denmark (CCPR/C/113/D/2272/2013), para. 7.2; K v. Denmark (CCPR/C/114/D/2393/2014), para. 7.3; Q.A. v. Sweden (CCPR/C/127/D/3070/2017), para. 9.3; and A.E. v. Sweden (CCPR/C/128/D/3300/2019), para. 9.3. ↩
6. For example, X v. Denmark, para. 9.2; Q.A. v. Sweden, para. 9.3; and A.E. v. Sweden, para. 9.3. ↩
7. Ibid. ↩
8. For example, Pillai et al. v. Canada (CCPR/C/101/D/1763/2008), para. 11.2; and Z.H. v. Australia (CCPR/C/107/D/1957/2010), para. 9.3. ↩
9. For example, K v. Denmark, para. 7.4; Rezaifar v. Denmark (CCPR/C/119/D/2512/2014), para. 9.3; Y.A.A. and F.H.M. v. Denmark (CCPR/C/119/D/2681/2015) para. 7.3; Q.A. v. Sweden, para. 9.3; and A.E. v. Sweden, para. 9.3. ↩

The Committee notes that it is undisputed in the present case that the State party authorities have not assessed the author’s claims regarding the alleged risk that she and her daughter would face if they were to be removed to Burundi after their arrival in Zambia. In this connection, it also notes the State party’s information that the migration authorities did not conduct an examination of the author’s cited need for protection against any alleged threat in Burundi or because of the general situation there, as she was assessed to be a Zambian citizen and would therefore not be at any risk of removal from Zambia upon return. It further notes the author’s argument that she is not a Zambian national and would therefore be deported from Zambia to Burundi, if returned to Zambia, and her argument that in Burundi she would be at risk of treatment contrary to articles 6 and 7 of the Covenant.

The Committee also notes that, during the asylum proceedings, the author applied for asylum as a Burundian citizen on the basis of her Burundian identification card, birth certificate, baptism certificate, her parents’ marriage certificate from Rwanda on which it was indicated that they were Burundian refugees, an expired Burundian passport and a letter from an opposition political leader from Burundi according to which the author was a member of the opposition party. It further notes, however, that the migration authorities found that the documents were of a simple nature, that they were easy to manipulate and reproduce and were therefore of low probative value, and thus did not substantiate the author’s claim that she was not a Zambian citizen. The migration authorities thus concluded that the author had not plausibly demonstrated that she was a Burundian citizen nor, consequently, that she would be ill-treated in Zambia on account of her Burundian citizenship or risk removal to Burundi from Zambia. The Committee notes the author’s assertion that she has done everything possible to substantiate her claim that she is a Burundian citizen and would thus be at risk of being deported to Burundi if she were to be removed to Zambia.

The Committee further notes that the author has submitted numerous documents indicating her citizenship as Burundian. Said documents were, however, dismissed by the migration authorities, which concluded that the author had not demonstrated that she was not a Zambian national and could therefore be removed to Zambia. In her renewed application for asylum, the author was informed that she should submit a Burundian passport in order to establish her identity. It notes that the author explained to the migration authorities that that would not be possible as Burundian passports are not issued at its embassies abroad. The Committee also notes that the author nonetheless tried to establish said claim by submitting a letter from the Burundian Embassy in Germany, which informed her that passports could not be issued at embassies. The letter was, however, dismissed by the migration authorities as being of low probative value. The Committee further notes in this connection that the migration authorities do not appear to have made any attempt to verify the author’s identity with Burundian authorities or investigated whether passports could be issued at Burundian embassies. In addition, as concerns the author’s attempt to establish her nationality, the Committee notes that her asylum interviews were conducted in the official language of Burundi, Kirundi, a language not spoken in Zambia. Furthermore, the Committee notes the information from the parties that two other persons who had applied for visas in Zambia at the same time as the author were later arrested by Zambian police and that, after an investigation, it became clear that said persons had obtained Zambian passports by bribing Zambian authorities. The Committee also notes that, consequently, the author’s claim of being a Burundian, not a Zambian, national is supported by several documents submitted by her, by interviews in her mother tongue and by the described circumstances under which she claims to have obtained a fraudulently issued Zambian passport.

In the light of the facts noted above, the Committee considers that said facts should have led the migration authorities to conduct an assessment as to whether the author would be at risk of removal from Zambia to Burundi, if she were deported to Zambia. The authorities should have also taken into account her claims that she would be subjected to persecution if returned to Burundi and her claim that it would not be possible for her to obtain international protection in Zambia. The Committee notes that no such assessment was conducted by the migration authorities and that, further, no attempt appears to have been made by the migration authorities to verify the author’s cited identity, despite all the evidence submitted by her supporting her claim of being a Burundian national. The Committee thus concludes that, by failing to assess the author’s protection claims concerning Burundi, the State party authorities failed to conduct an individualized assessment of the author’s case sufficient to determine whether there are substantial grounds for believing that there exists a real and personal risk of irreparable harm, as contemplated by articles 6 and 7, if the author and her daughter were to be removed to Zambia, with a subsequent risk of removal to Burundi.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the author’s and her daughter’s removal to Zambia, if carried out, would violate their rights under articles 6 and 7 of the Covenant.

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated to review the author’s and her daughter’s applications for asylum, taking into account the State party’s obligations under the Covenant and the Committee’s findings in the present Views, and to provide the author with adequate compensation. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official language of the State party.

We are unable to agree with the conclusion of the majority of the Committee that the State party’s denial of the author’s application for asylum constitutes a violation of the author’s rights under articles 6 and 7 of the Covenant. At issue in the present communication is whether the author has demonstrated that the assessment made by the State party of her situation and decision to remove her to Zambia was clearly arbitrary or amounted to a manifest error or a denial of justice. The majority concluded that the State party was in breach of its obligations by failing to conduct an assessment as to whether the author would be at risk of removal from Zambia to Burundi, if she were deported to Zambia. The effect of the majority views is to require a State party to assess risks an author would face if returned to a third country to which she is not being returned, and for which there is no credible evidence that she would be sent. Conversely, we conclude that the facts of this communication do not reveal a manifest error or a denial of justice by the State party and thus do not constitute a violation.

Under chapter 13 of the Swedish Aliens Act of 2005, the burden of proof to establish their identity, citizenship, residence or habitual place of residence, by submitting identity documents, lies with the applicants. The Migration Agency may also assess the demonstration of cited identity on account of oral submissions.¹⁰ The State party’s decision to reject the author’s asylum application and expel her to Zambia was based on a thorough investigation by the authorities, including written and oral testimony, and evidence submitted by the author (paras. 4.4, 4.5, 4.7 and 6.3 above), who had the legal assistance of public counsel during the process. In particular, the State party assessed the author’s Burundian identification card, birth certificate, baptism certificate, the author’s parents’ Rwandan marriage certificate, an expired Burundian passport and a letter from an opposition political leader from Burundi (the political party of which the author was a member) (paras. 2.4 and 9.5 above). Upon examining this evidence, the State party concluded that the documents were potentially manipulated, and of a simple nature with low probative value, and thus that they did not substantiate the author’s claim that she was a citizen of Burundi (paras. 2.3, 2.4 and 6.2 above).

10. See M.L.A. v. Sweden (CCPR/C/135/D/3216/2018). ↩

The State party checked the information provided by the author against that gathered by the Swedish Embassy in Zambia, which confirmed that the author’s Zambian passport and Zambian national registration card were authentic and had been issued by the Zambian Department of National Registration, Passport and Citizenship (paras. 4.6 and 4.9 above). The Migration Agency ultimately considered the author’s oral account regarding her Burundian citizenship and found it to be vague (paras. 2.3 and 4.6 above). The author’s need for international protection in Sweden was accordingly assessed with regard to the prevailing situation in Zambia, in view of her proven citizenship (paras. 4.4, 4.6 and 4.8 above). In October 2022, the State party determined the author had not established that she would be at risk of ill-treatment in Zambia, upon consideration of new documents and evidence submitted, including an invalid Burundian passport. The State party determined through thorough domestic investigative proceedings, including decisions by the Migration Court and Migration Court of Appeal, that the author and her daughter had not established any foreseeable, present, personal or real risk of treatment contrary to articles 6 or 7 of the Covenant if they were to be returned to Zambia.

Our views follow the Committee’s well-established jurisprudence that considerable weight should be given to the assessment conducted by the State party and that it is generally for the organs of the States parties to the Covenant to review and evaluate facts and evidence unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice.¹¹ This deferential approach takes into account the Committee’s general practice of considering communications based exclusively on the written information provided by the author and the State party.¹² The high threshold reinforces the long-held position that the Committee is not a fourth-instance review mechanism that re-evaluates findings of fact or the application of domestic legislation.¹³ If the State party’s decision was made under law in furtherance of a legitimate State interest and due consideration was given to the author’s application, the domestic decision is not considered to be unlawful or arbitrary.¹⁴ It is incumbent upon the author to identify specific circumstances demonstrating that the proceedings in the State party, or the decision itself, were arbitrary or manifestly erroneous or amounted to a denial of justice.¹⁵

11. M.M. v. Denmark (CCPR/C/125/D/2345/2014), para. 8.4; A.S.M. and R.A.H. v. Denmark (CCPR/C/117/D/2378/2014), para. 8.3; K v. Denmark (CCPR/C/114/D/2393/2014), para. 7.4; Z.H. v. Denmark (CCPR/C/119/D/2602/2015), para. 7.4; O, P, Q, R and S v. Sweden (CCPR/C/134/D/2632/2015), annex, para. 3; Z v. Denmark (CCPR/C/137/D/2795/2016), para. 6.8; J.S. v. Australia (CCPR/C/135/D/2804/2016), para. 7.5; Murne et al. v. Sweden (CCPR/C/137/D/2813/2016), para 10.5 and annex I, paras. 15 and 16; Elezaj v. Denmark (CCPR/C/137/D/2858/2016), annex, para. 5; S v. Australia (CCPR/C/137/D/2999/2017), annex, para. 4; Isley v. Australia (CCPR/C/138/D/3208/2018), annex, para. 5; Kisileva v. Sweden (CCPR/C/140/D/3245/2018), annex III, para. 2; Falzon v Australia (CCPR/C/140/D/3646/2019), annex I, para. 4; C.C.N. v. Sweden (CCPR/C/136/D/3701/2020), para. 6.7; and Rudurura v. Sweden (CCPR/C/136/D/3706/2020), paras. 8.2 and 8.7. ↩
12. Office of the United Nations High Commissioner for Human Rights, “Individual complaint procedures under the United Nations human rights treaties”, Fact Sheet No. 7, Rev. 2 (New York and Geneva, 2013), p. 10. See also Pillai et al. v. Canada (CCPR/C/101/D/1763/2008) para. 11.2; and Z.H. v. Australia (CCPR/C/107/D/1957/2010), para. 9.3. ↩
13. Arenz et al. v. Germany (CCPR/C/80/D/1138/2002), para. 8.6; F et al. v. Denmark (CCPR/C/119/D/2530/2015), annex, para. 2; and A.G. v. Netherlands (CCPR/C/130/D/3052/2017), para. 10.4. ↩
14. Stewart v. Canada (CCPR/C/58/D/538/1993), para. 12.10; Canepa v Canada (CCPR/C/59/D/558/1993), para. 11.4; Budlakoti v Canada (CCPR/C/122/D/2264/2013), para. 9.6; and Gnaneswaran v. Australia (CCPR/C/133/D/3212/2018), para. 9.3. ↩
15. J.I. v. Sweden (CCPR/C/128/D/3032/2017), para. 7.7; and M.R. v. Denmark (CCPR/C/133/D/2510/2014), para. 7.9. ↩

Based on the facts of the case and for the reasons set out above, we are of the opinion that the author has not proved that the domestic authorities’ evaluation of the submitted facts and evidence was manifestly arbitrary or amounted to a denial of justice. The State party logically concluded that no expulsion order to Burundi existed, and no information could be found to indicate that the author would risk deportation from Zambia to Burundi, given the lack of credible evidence proving her Burundian identity. Furthermore, an author’s disagreement with the factual conclusions drawn by a State party, including with regard to an alleged risk of harm, do not demonstrate that such conclusions are arbitrary or manifestly unreasonable, or that the asylum proceedings in question amounted to a denial of justice.¹⁶

16. See, for example, I.K. v Denmark (CCPR/C/125/D/2373/2014), para. 9.3; P.T. v. Denmark (CCPR/C/113/D/2272/2013), para. 7.4; and M.P. et al. v. Denmark (CCPR/C/121/D/2643/2015), para. 8.7. ↩

We are of the view that the State party provided an adequate assessment of the facts and circumstances and acted reasonably in deciding to remove the author and her daughter. We do not find that the decision to deny the author’s asylum claim was arbitrary or amounted to a manifest error or denial of justice. As such, we conclude that there has not been a violation of article 6 or 7 of the Covenant.