Deportation of author and child to Nigeria would violate principles of non-refoulement and best interests of the child owing to a real and personal risk of exposure to FGM

Facts

The author submits this communication on behalf of herself and her minor daughter (2 years old). She claims that the State party's decision to deport her to Nigeria would be a violation of her rights under articles 7 and 24 (1) of the Covenant, since it would put her and her daughter at risk of female genital mutilation (FGM). She claims that the Dutch Immigration and Naturalisation Services (IND) failed to properly assess the real and personal risks faced by the author and her daughter, as it (i) provided insufficient reasons for finding her alleged marriage incredible, and (ii) did not properly consider the risk of FGM (either the personal risk of the mother or daughter being subjected to FGM, the general situation in Nigeria as it pertains to FGM, and the possibility for the author and her daughter to find an alternative place of residence in Nigeria). 

Admissibility

The Committee found the communication admissible on the following grounds: (i) the Committee was not precluded under article 5 (2) (b) of the Optional Protocol from being seized of the complaint, and (ii) the author had sufficiently substantiated her claim under article 7 alone, and in conjunction with article 24 (1) of the Covenant. 

Merits

The Committee held that the author and her daughter's removal to Nigeria, absent a proper assessment of the real and personal risk they would face, would violate their rights under article 7, read alone, and article 7 in conjunction with article 24 (1) of the Covenant. It stated that there is no question that subjecting a woman or child to FGM would violate article 7 of the ICCPR. The Committee found that the State party had not properly assessed the author's claims regarding the personal risk she and her daughter faced upon deportation, amounting to a manifest error or denial of justice. 

Recommendations

The Committee noted the State Party's obligation to review the author's case, and requested it to refrain from deporting the author and her daughter until a proper assessment has been conducted. 

Separate Opinions

Three Committee members (Furuya, Kran, and Zyberi) were unable to concur with the Committee's view, as they found that the author had failed to demonstrate that the State party's assessment was clearly arbitrary, or amounted to a manifest error or denial of justice. They found that the State party had conducted an individualized assessment of the personal risks faced by the author and her daughter, and that the author failed to meet the legal threshold necessary to rebut the State party's findings. 

Implementation

13 April, 2022