ICCPR Case Digest

CCPR/C/125/D/2489/2014

Communication

2489/2014

Submission: 2013.07.19

View Adopted: 2019.03.26

Jamshed Hashemi and Maryam Hashemi v. The Netherlands

Alleged discrimination based on residency status for child benefit payments, no violation as no established link between health of the child and exclusion from payments

Substantive Issues
  • Non-discrimination
  • Right to social security
Relevant Articles
  • Article 2 - OP1
  • Article 23
  • Article 24.1
  • Article 26
Full Text

Facts

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.

Merits

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.

Separate Opinions

Individual Opinion of Mr. José Santos Pais (dissenting)

  • Mr. José Santos Pais refused to join the majority on the basis that he felt the denial of GCB, as an intended child benefit scheme designed to contribute to the costs of caring and raising children, did not take duly into account the protection of the children’s best interests.
  • Mr. José Santos Pais concluded the State party, by denying the authors’ application for GCB, violated Rozita’s rights under article 24 (1) of the Covenant, according to which every child has a right to special measures of protection due to her or his status as a minor.

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