K.S. v. Denmark

The author of the communication is K.S., a Somali national born in 1964, who risks deportation to Somalia because her asylum application in Denmark has been rejected. She claims that her deportation would constitute a violation by Denmark of articles 1, 2, 12 and 15 of the Convention on the Elimination of All Forms of Discrimination against Women. The author is represented by counsel, Niels-Erik Hansen. The Convention and the Optional Protocol thereto entered into force for Denmark on 21 May 1983 and 22 December 2000, respectively.

When registering the communication on 20 August 2014, pursuant to article 5 (1) of the Optional Protocol and rule 63 of its rules of procedure, the Committee decided to accede to the author’s request for interim measures of protection in order to stay her deportation pending the examination of her case. Subsequently, on 27 April 2015, the Working Group on Communications under the Optional Protocol lifted its request for interim measures in the light of the State party’s observations of 23 February 2015 and the author’s comments thereon.

The author comes from a town in Somalia. Several years ago, she was sexually assaulted by four men who attempted to rape her. She suffered a sharp blow to her head and severe shock, leading to subsequent physical and psychological problems. Because of this incident she was considered not suitable for marriage. In 1998, she went through an arranged wedding and, in 2000, gave birth to a daughter.

In 2013, the author began working as a cleaner for a widower in her town. On 20 January 2014, she was informed by a neighbour that rumours were being spread that the author was having an affair with her employer. As a consequence, she was beaten by her husband on several occasions. At the end of January, her neighbour threatened her when she was on her way home and told her that it would be better if she were dead. On the same day, when she arrived at her home, she overheard a conversation between a man, who she assumed to be from Al-Shabaab because he had a long beard and wore special clothing, and her husband. The former requested her husband to kill her and said that, if he failed to do so, they would kill her themselves. Fearing for her life, the author immediately ran away to her maternal uncle, who also lived in her town. On 2 February, she left Somalia illegally with his assistance.

On 10 February 2014, the author arrived in Denmark and, on 12 February, requested asylum there. On 22 May 2014, the Danish Immigration Service rejected her request and referred the decision to the Danish Refugee Appeals Board. On 6 August 2014, the Board upheld that refusal. According to the Board, the author provided imprecise explanations about the rumours of her alleged infidelity, the enquiries made by local community members about those rumours, how long the rumours had circulated and Al-Shabaab’s enquiry to her spouse. The Board also noted that Al-Shabaab had been displaced from the author’s town and the overall security situation was not such that the author would be at real risk of persecution if she were returned to the area.

The author affirms that she has exhausted all domestic remedies and notes that the decision of the Refugee Appeals Board is final and not subject to further appeal.

The author claims that, by deporting her to Somalia, Denmark would breach its obligations under articles 1 and 2 of the Convention and, in the light of the background information on the situation of women in the country, there are substantial grounds to believe that her life would be in danger should she return to Somalia. Adultery is punishable by stoning and, by fleeing, she has de facto “confessed” that she has been unfaithful. The author claims that even if Al-Shabaab has been displaced from the area, she is at risk of being stoned by local people and that the Somali authorities would not protect her.

The author also claims a violation of articles 12 and 15 of the Convention, without providing any substantiation.

By a note verbale dated 23 February 2015, the State party provided its observations on admissibility and the merits, claiming that the complaint should be declared inadmissible. Should the Committee find the communication admissible, the State party believes that no violation of the Convention will occur should the author be returned to Somalia.

The State party recalls the facts of the case: the author, a Somali national born in 1964, entered Denmark on 10 February 2014 without valid travel documents and applied for asylum on 12 February. On 22 May, the Danish Immigration Service refused to grant her asylum. On 6 August, the Danish Refugee Appeals Board upheld that decision. The majority of the members of the Board found the author’s statements in support of her grounds for asylum to be vague and inconsistent. In the light of the current background information on the author’s town, the Board has accepted as fact that Al-Shabaab has now been driven out of the area and the general security situation is thus not such that anybody returning there could be deemed to be at real risk of abuse in violation of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. On that basis, the Board could not accept as facts that the author, who has close family in her town, was persecuted at her departure, that she risks persecution upon return or that it could be assumed that she would be at real risk of being subjected to inhuman or degrading treatment or punishment falling within part 1, section 7 (2), of the Aliens Act upon return.

The evidence and information on the specific facts of the case and the background information have been assessed in accordance with the provisions of the Aliens Act. The State party submits that, according to part 1, section 7 (2), of the Act, a residence permit will be issued to an applicant if the applicant is at risk of the death penalty or being subjected to torture or inhuman or degrading treatment or punishment should he or she return to his or her country of origin. The conditions for issuing a residence permit are met if the individual factors render it probable that the asylum seeker would be at real risk of torture should he or she return to his or her country of origin.

The State party submits that such assessments are made by the Refugee Appeals Board, which makes a decision on the basis of all relevant evidence, including information on the situation in the asylum seeker’s country of origin. The Board has a comprehensive collection of general background material on the situation in the countries from which the State party receives asylum seekers. It makes its decisions in accordance with the international obligations of Denmark.

The State party notes that the communication concerns only circumstances that the author may risk should she be returned to Somalia and that, according to the Committee, the Convention on the Elimination of All Forms of Discrimination against Women has extraterritorial effect only when the woman, if returned, would be exposed to a real, personal and foreseeable risk of serious forms of gender-based violence.¹ In the present case, the author has not sufficiently established that she would be exposed to such a risk. Therefore, the communication should be declared inadmissible because the author has failed to establish a prima facie case for the purpose of admissibility.

1. The State party refers to communication No. 30/2011, M.N.N. v. Denmark, decision of inadmissibility adopted on 15 July 2013. ↩

Should the Committee find the author’s communication to be admissible, the State party submits that the author has not sufficiently established that she would be at risk of persecution if returned to Somalia. During the asylum proceedings, she made vague statements about the existence of rumours about her infidelity, the manner in which the rumours had been spread,² how she had learned of those rumours and how her husband had learned of them. Moreover, she made inconsistent statements about her spouse’s alleged violence towards her and his reaction to the rumours in general. At the asylum screening interview, on 3 March 2014, the author stated that she did not know how her spouse had learned about the rumours of her special relationship with her employer, that he had become angry when he had learned of the accusations, that he had asked her directly whether they were true and that she had denied them, but he nevertheless had remained angry. At the interview conducted by the Danish Immigration Service on 15 May 2014, the author first stated that her spouse had learned of the rumours in either late December 2013 or early January 2014. Later during the same interview, she stated that she was unsure but it had been around 25 January 2014 and that she did not know how he had come to learn of them. Moreover, she stated that he had become angry, but had not threatened her; he had simply walked out and she did not know where he had gone. Her spouse had changed after the rumours; he had stopped sleeping and eating with her because he believed the rumours to be true. At the Board hearing on 6 August 2014, the author stated that some time had elapsed from when her spouse had first heard the rumours to when she had told him about them and that he had become very angry when he first heard of them. She repudiated the statement reproduced in the interview report of 15 May 2014 and contended that her spouse had threatened to kill her and had beaten her three times on three separate occasions within one month, which was the real reason why she had left Somalia. When informed that she had never made such statements previously, the author stated that the translation was incorrect.

2. At the asylum screening interview on 3 March 2014, the author stated that a friend of her employer had begun the rumour, that Al-Shabaab had learned of the rumours of her infidelity in January and that a member of Al-Shabaab had contacted her uncle after prayers at the mosque and told him that she had been having an extramarital affair. At an interview conducted by the Danish Immigration Service on 15 May 2014, the author stated that it was someone other than the friend of the author’s employer who had begun the rumours, that she had been told on about 20 January 2014 that there were rumours all over the town about her relationship with her employer and that she had been threatened by that person on her way home in late January 2014. When informed that she had stated nothing at the interview on 3 March about that person or the threats received, the author stated that, at that interview, she had not been asked about that and that she had not been herself. At the Board hearing on 6 August, the author stated that she had been confronted by different people for several days over the rumours and that she feared everyone in her home town because they considered her to be a prostitute. ↩

The author has been unable to convincingly explain why she has made vague and inconsistent statements about her grounds for asylum, even though those statements concerned crucial parts of those grounds and she has been given the opportunity to do so. She claims that her statements appear vague and inconsistent because they were translated incorrectly and the Danish immigration authorities did not ask her directly about the various circumstances. In this connection, the State party observes that, when the author was interviewed by the Danish Immigration Service on 3 March and 15 May 2014, the representative of the Service had asked her to spell out her grounds for asylum and that, at the conclusion of each interview, the interview report was reviewed with her and she was given the opportunity to comment thereon. The author made no comments on the report of either 3 March or of 15 May 2014 and signed the final reports after her review.

Moreover, during the asylum proceedings, the author made inconsistent and incoherent statements about the enquiry made by the Al-Shabaab member to her spouse. At her interview on 3 March 2014, she stated that an Al-Shabaab member had come to her home one night before her departure and she had not been at home because she had been taking milk to her mother. When she returned, she discovered that the Al-Shabaab member was at her home. In contrast, at the interview on 15 May 2014, she stated that she and her spouse had said evening prayers in separate rooms on the night when the Al-Shabaab member had come to their home and that she had seen a bearded man in special clothing through the door after she had taken out the rubbish. At the hearing before the Refugee Appeals Board on 6 August 2014, she maintained that she had been at home when her spouse had been contacted by the Al-Shabaab member. When interviewed on 3 March 2014, she stated that she had not been at home when the member contacted her spouse, and added that she had a poor memory.

In that respect, the State party observes that the enquiry by the Al-Shabaab member is a crucial part of the author’s grounds for asylum and, according to the information provided by the author, a contributory and even triggering factor for her departure from Somalia. The State party finds that the inconsistent and incoherent statements about the incident made by the author during the asylum proceedings have weakened her credibility. It furthers notes that the author’s reference to her poor memory before the Refugee Appeals Board cannot lead to a different assessment of the matter, given that she had not previously referred to her poor memory as a reason for the inconsistency, not even when informed of the inconsistency at the interview conducted by the Danish Immigration Service on 15 May 2014.

The State party agrees with the assessment of the author’s credibility made by the Refugee Appeals Board that the author’s statement in support of her grounds for seeking asylum cannot be considered to be fact. The State party therefore cannot accept as fact that the author has had or, if returned to Somalia, would have, a conflict with her family, the local population or the local authorities.

The State party points out that the most recent background information on the general situation in southern and central Somalia³ confirms the information that was already in the possession of the Refugee Appeals Board when it made its decision on 6 August 2014. That the author is a woman from a certain town cannot in itself lead to a different assessment of the matter. In that respect, the State party observes that the author would not be considered a single woman upon her return to Somalia because, according to her statement, she has several family members in her home town, including her spouse, daughter, mother, sisters and uncle.

3. The State party refers to the position of the Office of the United Nations High Commissioner for Refugees (UNHCR) on returns to southern and central Somalia of 17 June 2014, which has been referred to by the author’s counsel, and the report of the Secretary-General on Somalia (S/2014/699), submitted to the Security Council on 25 September 2014. ↩

In relation to the claim by the author in her statement before the Refugee Appeals Board on 6 August 2014 that she had been subjected to sexual violence many years ago and, as a result, was now mentally stressed, the State party agrees with the Board’s assessment that that cannot in itself form a basis for asylum.

As regards the submission made by the author’s counsel that the Refugee Appeals Board, in its decision of 6 August 2014, did not expressly refer to the provisions of the Convention, the State party argues that the Board always takes into account the international obligations of Denmark when making decisions in asylum cases, regardless of whether this is expressly spelled out in its decisions.

In the opinion of the State party, the author’s communication to the Committee merely reflects that the author disagrees with the assessment of her credibility made by the Refugee Appeals Board. The author has failed to provide any new, specific details about her situation in her communication and to identify any irregularity in the decision-making process or any risk factors that the Refugee Appeals Board has failed to take properly into account. The State party emphasizes that the national authorities are best placed to assess the credibility of the author because they have had the opportunity to see her, hear her and assess her demeanour.

In the State party’s view, there is no basis for doubting the assessment made by the Refugee Appeals Board, according to which the author has failed to sufficiently prove that there are substantial grounds for believing that she would be at risk of being subjected to persecution or asylum-relevant abuse if returned to Somalia.

On 10 September 2015, the author provided comments on the State party’s observations. She indicates that, while the majority of Refugee Appeals Board members refused to grant her asylum on 6 August 2014, a minority voted for her protection in Denmark. She emphasizes that she has been living in constant fear of forcible removal since the interim measures were lifted and that her fear is real in the light of the situation in southern and central Somalia.⁴

4. The author refers to the UNHCR position on returns to southern and central Somalia of June 2014. ↩

With regard to admissibility, the author submits that this issue is closely linked to the merits of the communication. She claims that, taking into consideration that she is a single woman being deported to a country that has not even signed the Convention, and in the light of the aforementioned background information, it is clear that she has a prima facie case under articles 1, 2, 12 and 15 of the Convention. Regarding the request that her asylum claim should have been considered in the light of the Convention, the author notes that the Refugee Appeals Board did not mention the Convention in its decision even though her counsel raised this issue both in writing and orally during the Board hearing.

With regard to the merits, the author agrees that she has provided no additional information in her communication to the Committee. She emphasizes that there is no guarantee that the Convention has been taken into account in the decision-making process. She also emphasizes that she is unaware of any decisions of the Refugee Appeals Board in which the Convention has been expressly mentioned. The author submits that the Convention is not considered to be a relevant international instrument for the asylum process in Denmark. The decision of the Board is therefore in breach of the law, there being no indication that the Convention was taken into account in the decision-making process.

Regarding her credibility, the author recalls that a minority of the Refugee Appeals Board members consider that she would be at risk of being subjected to persecution if returned to Somalia. Given that the minority disagree with the majority’s opinion, the State party should have relied on the principle of “benefit of the doubt”, as prescribed in the UNHCR Guidelines on International Protection.⁵

5. The author refers to section III, on procedural issues, of UNHCR, “Guidelines on international protection No. 1: gender-related persecution within the context of article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees”, document HCR/GIP/02/01. Available from http://www.refworld.org/docid/3d36f1c64.html. ↩

The author emphasizes that the fact that she is a woman and travelled alone to Europe proves that she would have no protection if returned to her home town. Even if Al-Shabaab may not, for the moment, be in power in that region, it still has an important influence. Members of Al-Shabaab remain in the town, the government troops and the troops of the African Union Military Observer Mission in Somalia (AMISOM) are not even able to secure themselves, and no adequate security can therefore be provided to the local population. As a single woman, it is unlikely that she would be protected by the authorities from gender-based violence. Consequently, the author claims that she would be at risk of persecution in Somalia.

On 3 February 2016, the State party provided observations in response to the author’s additional comments. The State party reiterates that the author has not provided any new information and has failed to identify any irregularity in the decision-making process or any risk factors that the Refugee Appeals Board failed to take properly into account. It is thus clear that the author is seeking to use the Committee as an appellate body and have the factual circumstances of her case reassessed.

With respect to the reference to the Convention in the decision-making process, the State party reiterates that the Danish Immigration Service and the Refugee Appeals Board always take into consideration the international obligations of Denmark, including under the Convention, in all asylum cases, regardless of whether a specific reference is made in the decision. The annex to which the author refers in her most recent comments is not a printout from the website of the Service. Moreover, the translation provided is incorrect; a correct translation would be: “Here you can find links to some of the international conventions within the field of immigration with which Denmark has undertaken to comply.” That implies that the list is not exhaustive and, therefore, cannot in any way be taken to mean that the Danish immigration authorities do not take the Convention into account when deciding on asylum and other immigration cases to which the Convention is relevant. The State party further observes that the Board publishes an annual report on its activities every year, which is publicly accessible. The report includes a chapter on cases brought before international bodies, which comprises a general paragraph on the relevant conventions, including the Convention on the Elimination of All Forms of Discrimination against Women, and a review of any decisions made by treaty bodies in cases against Denmark during the reporting year.

With regard to the remarks regarding the minority of the members of the Refugee Appeals Board, the State party notes that the author repeatedly speculated about the facts and findings on which the dissenting members of the Board based their opinion. It observes that, pursuant to rule 40 of the rules of procedure of the Board, decisions of the Board are made by a simple majority of votes and that the Board’s deliberations are confidential. Pursuant to rule 41 of the rules of procedure, a case note on the result of the deliberations must be prepared immediately after the end of the deliberations and is not confidential. The State party notes that the Convention does not impose an obligation to make public the opinion held by the minority of the Board members and no such obligation follows from Danish law either.

With respect to the author’s situation if she were to return to Somalia, the State party observes that the author stated during the asylum proceedings that her spouse, daughter, mother, uncle and sisters and their spouses remained in her home town. It cannot therefore be accepted as fact that the author would be considered to be a single woman without a male network upon her return to Somalia. It is further observed that, according to the author, the Sheekhaal clan, to which she has claimed to belong, is one of the three most dominant clans in her home town.⁶ The State party thus maintains that there is no basis for doubting the assessment made by the Refugee Appeals Board in its decision of 6 August 2014 on the author’s asylum application.⁷

6. The State party outlines the difference between this case and that of R.H. v. Sweden (application No. 4601/14, judgment of the European Court of Human Rights adopted on 10 September 2015), in which the Court stated that, “in the Court’s view, it may be concluded that a single woman returning to Mogadishu without access to protection from a male network would face a real risk of living in conditions constituting inhuman or degrading treatment under Article 3 of the Convention”. ↩
7. The State party refers to communications No. 2272/2013, P.T. v. Denmark, views adopted by the Human Rights Committee on 1 April 2015, paragraph 7.3, No. 2393/2014, K. v. Denmark, views adopted by the Human Rights Committee on 19 May 2014, paragraph 7.4, and No. 2426/2014, N. v. Denmark, decision adopted by the Human Rights Committee on 13 June 2014, paragraph 6.6. ↩

The author submitted comments on the State party’s additional observations on 28 April 2016. She takes note of the State party’s reference to decisions on deportation to Somalia by the Human Rights Committee and the European Court of Human Rights and adds that many asylum proceedings have been reopened so as to be assessed in the light of the decision of the European Court of Human Rights in R.C. v. Sweden. In January 2016, the Refugee Appeals Board stated the following: The various reports attest to the difficult situation of women in Somalia, including Mogadishu. The UNHCR has identified women and girls as a particular risk group […]. While there has been legislative progress in the form of the development of a sexual offences bill, there are several concordant reports about serious and widespread sexual and gender-based violence in the country […]. Not only civilians but also members of SNAF, AMISOM and other armed forces are perpetrators of abuse against women. Women are unable to get protection from the police and the crimes are often committed with impunity, as the authorities are unable or unwilling to investigate and prosecute reported perpetrators. It is also clear that women are generally discriminated against in Somali society and that they hold a subordinate position to men. As shown by the report of the Swedish Migration Board, women are reliant on men in many aspects of societal life (paragraph 30). In the Court’s view, it may be concluded that a single woman returning to Mogadishu without access to protection from a male network would face a real risk of living in conditions constituting inhuman or degrading treatment under article 3 of the Convention.

The author notes that, in R.C. v. Sweden, asylum was granted. Given that she comes from the same area, she does not understand why her case has not been reopened. She further states that she has no network and that her town is not a safe place because there is no safe transportation and one may have to cross front lines and pass through roadblocks set up by government forces, AMISOM or Al-Shabaab. She reiterates that, even though the majority of the board members are of the view that Al-Shabaab is no longer in power in her home town, Al-Shabaab is in power in the countryside around the town and members of the organization remain in the town.

On 23 June 2016, the State party provided additional observations. It reiterates its observations of 23 February 2015 and 3 February 2016.⁸ Regarding the author’s submission on the judgment delivered by the European Court of Human Rights on 10 September 2015 in R.H. v. Sweden, the State party refers to its observations of 3 February 2016. In addition, it observes that the jurisprudence of the Refugee Appeals Board relating to women from Somalia does not imply that a network is required to be in or available from Mogadishu.

8. The State party attached statistics on the jurisprudence of the Danish immigration authorities, which show, among other things, the recognition rates for asylum claims from the 10 largest national groups of asylum seekers decided by the Refugee Appeals Board between 2013 and 2015. ↩

With regard to the reopening of the case, the State party notes that cases are reopened when essential new information or points of view have been added to the case beyond the information available at the initial hearing, which is not the situation here. The State party submits that the author’s case is not comparable to R.H. v. Sweden or any of the cases that have been reopened by the Refugee Appeals Board.

The State party maintains that the author has failed to establish a prima facie case for the purpose of admissibility under article 4 (2) (c) of the Optional Protocol and that the communication should therefore be declared inadmissible as manifestly ill-founded. Should the Committee find the communication admissible, the State party further maintains that it has not been established that there are substantial grounds for believing that the author’s return to Somalia would constitute a violation of the Convention.

In accordance with rule 64 of its rules of procedure, the Committee must decide whether the communication is admissible under the Optional Protocol. Pursuant to rule 66, it may decide to consider the admissibility of the communication separately from its merits.

The Committee observes that the State party did not challenge the admissibility of the communication on the grounds of non-exhaustion of domestic remedies and is also satisfied that it is not precluded from examining the communication by the requirements of article 4 (1) of the Optional Protocol.

The Committee notes the author’s claim that her deportation to Somalia would constitute a violation by Denmark of articles 1, 2, 12 and 15 of the Convention. The Committee also takes note of the State party’s argument that the communication should be declared inadmissible under article 4 (2) (c) of the Optional Protocol for lack of substantiation.

In terms of substantiation, the author has claimed that she fears being killed if returned to Somalia because of rumours about her infidelity, because she has no male network to protect her and because there are still members of Al-Shabaab in her home town.

The Committee notes that the Danish immigration authorities have duly examined the author’s allegations and have concluded that the author has failed to sufficiently substantiate them, in particular regarding her spouse’s alleged violence and threats from Al-Shabaab. It also notes the author’s explanation that her statements appeared incoherent and vague because of translation problems and her bad memory. In this regard, the Committee notes that all the interview reports throughout the asylum proceedings were reviewed with the author, who was given the opportunity to comment on those reports, and that she never objected to their content.

The Committee further observes that none of the material on file indicates that, in reaching the conclusion that the author’s allegations lacked credibility, the Danish immigration authorities have failed, in any manner whatsoever, in their duties or acted in a biased or otherwise arbitrary manner. The Committee notes that the author has provided no additional information or documentation to substantiate her claims about any risk that she would face should she return to Somalia. In addition, she has completely failed to substantiate her claims of violations of articles 12 and 15 of the Convention.

The Committee also takes note of the author’s claims that the Danish immigration authorities have failed to consider her case from the perspective of the Convention and to mention the Convention in their decision, even though this matter was raised both orally and in writing by her counsel during the Refugee Appeals Board hearing. The Committee takes note of the State party’s reply that the Convention is a source of law in Denmark and forms an integral part of the assessments made by the Board in asylum cases. The Committee observes that the author’s lawyer requested the immigration authorities to consider her asylum claim in the light of the Convention, without referring to specific provisions of the Convention and without substantiating her claims under any specific articles of the Convention.

Regarding the author’s claim that the fact that she is a single woman constitutes a supplementary factor of risk for her in Somalia, the Committee points out, in the light of the information contained on file, notably the UNHCR position on return to southern and central Somalia of June 2014, on which both the State party and the author rely, that the author in fact has a network in Somalia because she has several close relatives in her town, including her daughter, mother, sisters and the uncle who helped her to go to Europe. The Committee therefore considers that the author cannot be considered to be a single woman if returned to her home town.

In the light of these considerations, the Committee is of the view that the author’s claim that her removal to Somalia would expose her to a real, personal and foreseeable risk of serious forms of gender-based violence is insufficiently substantiated for the purposes of admissibility. Accordingly, it declares the communication inadmissible under article 4 (2) (c) of the Optional Protocol as insufficiently substantiated.

The Committee therefore decides that: (a) The communication is inadmissible under article 4 (2) (c) of the Optional Protocol;