View Adopted: 2019.03.26
The authors are two Afghan nationals who submitted on their own behalf, and on the behalf of their two children born in the Netherlands.
The authors fled Afghanistan because of the Taliban and arrived in the Netherlands in August 2001. They initially filed a requested for asylum which was denied in Febrary 2003, subsequent appeals were also denied. They later filed an application to postpone the order requiring them to leave due to one of the authors' pregnancy, which was granted allowing the authors to remain in the Netherlands until 6 weeks after the delivery of the child. The authors filed a second request for asylum in January 2009, which resulted in a temporary asylum residence permit on appeal in 2014.
The author's child experienced a number of health issues throughout this process. The authors noted that they applied in numerous instances for general child benefits ('GCB') however these were declined as the authors did not have a valid residence permit. They claim that the denial of their application for child benefits is based on their residence status and therefore discriminatory and constitutes a violation by the state party of article 23, 24(1) and 26 of the Covenant.
The Committee recalled that under article 24, every child has a right to special measures of protection due to his or her status as a minor. Further, state parties have a positive obligation to protect children which may include guaranteeing subsistence in order to comply with the requirements or article 24(1).
The Committee considered that in this specific case, the authors had not established a link between their daughters health condition and the authors’ exclusion from receiving the GBC, as they did not demonstrate that the alternative financial assistance available to them materially disadvantaged Rozita’s health, in comparison to the GCB scheme.
However in light of the totality of the circumstances, the Committee concluded that the facts before it do not constitute a violation of Rozita’s rights under article 24 (1) of the Covenant. In that manner, the Committee did not deem it necessary to further examine the author’s claims, concerning the same matter, under articles 23 and 26 of the Covenant.
Individual Opinion of Mr. José Santos Pais (dissenting)