Outline of the substantive and procedural issues
The present case concerns the rejections of the asylum application of a Chinese single mother with three children by Denmark. The applicant fears that she and her daughters will be subjected to irreparable harm upon return to China. The basis for this claim is that she will not be able to register her children in the Chinese Hukou household registration system. In this case note, we first describe the facts of the case and the Danish domestic procedure. Then we discuss the findings of the Committee. In our commentary, we discuss the applicable legal framework under the CRC concerning the prohibition of non-refoulement enshrined in the CRC. Then we analyse the self-standing procedural violation of Article 3(1) CRC. Subsequently, we investigate the substantive violation of Articles 6 and 8 CRC.
Facts and domestic procedure
The applicant is a Chinese woman who fled from her country of origin to Denmark in 2012. In China, she was forced to undergo an abortion and her father was killed in an incident involving the police. Her mother passed away after heart failure. In Denmark, the applicant gave birth to three children in 2014, 2015 and 2018. The father of the children is an asylum seeker who does not appear on the children’s birth certificate. The role of the father in the family is not discussed in the communication. In her initial asylum application, she fears she would be forced into an abortion if she was returned to China while pregnant. The applicant later added to her asylum application that she fears persecution for being a single mother. She is also afraid that her children will be forcibly taken away from her and that it would not be possible to register them in the Hukou household registration system.
The Danish Immigration Service decided to process the asylum application in a procedure for manifestly unfounded applications. In September 2015, the asylum application was rejected. The applicant appealed that decision to the Danish Refugee Appeals Board. The applicant was not heard because the Immigration Service accepted the credibility of the applicant’s account of the facts. On the request of the Refugee Appeals Board, the Danish Ministry of Foreign Affairs contacted a local lawyer in the Fujian province to obtain background information. Among other information, this lawyer reported that the applicant would have difficulties to obtain Hukou registration for her children, as she is unmarried and the children were born abroad. In March 2017, the Refugee Appeals Board rejected the appeal. By majority, the Board concluded that it would be difficult to register the children in the Hukou system, thereby limiting their access to medical aid, education and social services. Even though the Refugee Appeal Board acknowledged this might seem unfair from a Danish context, it ruled that this is not sufficiently serious to qualify as persecution. As there are no further possibilities to appeal a negative decision of the Refugee Appeals Board in Denmark, the applicant petitioned to the Committee on the Rights of the Child.
Findings of the Committee
The Committee declares the complaints concerning violations of Article 2 CRC (the prohibition of discrimination) and Article 7 CRC (the right to birth registration) to be inadmissible. It proceeds on the merits with the complaints concerning Articles 3(1), 6 and 8 CRC. The Committee refers to its General Comment No. 6, in which it held that states shall not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child. The determination of the real risk of irreparable harm should be conducted in an age and gender sensitive matter (General Comment No. 6, para. 26). Where reasonable doubts exist that the receiving state cannot protect the child, the Committee holds that following the principle of precaution, the host state should refrain from deporting the child (see I.A.M. v Denmark, para. 11.8 and the Commentary by Sloth-Nielsen I.A.M. v. Denmark).
In the application of this legal framework, the Committee finds the burden of proof is shared by the applicant and the respondent state. The Committee holds that Denmark has not carefully verified whether the Danish birth certificates would be sufficient to register in the Chinese Hukou register and which other procedures would be open to the applicant and her children to guarantee effective access to the rights of the children to education and health care. Consequently, the Committee finds that Denmark failed to duly consider the best interests of the child (Article 3(1) CRC) when assessing the risk that the children could not be registered in the Hukou system.
Substantively, the Committee observes that Hukou registration is required to access health care, education and social services and this is the only means to prove identity in China. It refers to a report by the Canadian Immigration and Refugee Board stating that a birth certificate cannot attest legal identity or nationality and that a Hukou is the only document that can be used to attest birth registration in China. Furthermore, the Committee refers to a report of the UK Home Office, reporting that many children born to single/unmarried parents have been denied Hukou registration. The Committee states that children born to unmarried parents face numerous difficulties obtaining the Hukou registration. Based on this, the Committee concludes that the deportation of the children would amount to a violation of their right to life, survival and development under Article 6 CRC and their right to preserve their identity under Article 8 CRC. The Committee holds that the state party is under an obligation to refrain from deporting the applicant and her children to China.
Commentary
Assessing non-refoulement for children
In its previous communication on individual complaints, the Committee has established a non-refoulement test that differs from the standards used by other UN human rights tribunals. For the purpose of this case note, the comparison is made between the Committee’s approach and that of the Committee Against Torture (CAT Committee) and the Human Rights Committee (HRC). Article 3 of the Convention Against Torture (CAT) requires substantial grounds for believing that a person would be in danger of being subjected to torture after removal (see Committee Against Torture, General Comment No. 1, Implementation of Article 3 of the Convention in the Context of Article 22 (Refoulement and Communications), para. 6-7). The CAT Committee has established that there must be a personal and foreseeable risk. The existence of a pattern of gross, flagrant or mass violations of human rights does not as such constitute sufficient reasons to assume a personal risk (see, for instance, Committee Against Torture 15 December 2015, Communication No. 613/2014, F.B. v Netherlands, para 8.3). For finding a violation of the prohibition of refoulement under Article 7 of the International Covenant on Civil and Political Rights, there must be a real risk of irreparable harm (see Human Rights Committee, General Comment No. 31, para 12). The HRC has indicated that the risk must be personal and that there is a high threshold for providing substantial grounds to establish a real risk. It held that it is generally for the state party to examine the facts and evidence on the existence of a real risk, unless the assessment was arbitrary or amounted to a manifest error or denial of justice (See for instance Human Rights Committee 16 July 2015, Communication No. 2393/2014, K. v. Denmark, para. 7.3-7.4).
The reasoning of the Committee in General Comment No. 6 is rather similar to the test used by the CAT Committee and the HRC. In case there are substantial grounds for believing that there is a real risk of irreparable harm to the child, this results in the finding of a breach of Articles 6 or of Article 37(a) CRC, which includes the principle of non-refoulement. The assessment of the risk of such serious violations should be conducted in an age and gender-sensitive manner and should take into account the particularly serious consequences for children of the insufficient provision of food or health services. Access to health care is at stake in the present case. In its communications in individual cases, the Committee goes a step further and adds additional requirements for the state parties. It has now held in both views in individual cases concerning non-refoulement that the assessment of the real risk of irreparable harm should be carried out following the principle of precaution and that state parties should refrain from deportation where reasonable doubts exist that the receiving state will not protect the child (see the previously cited I.A.M. v. Denmark views and the analysis by Julia Sloth-Nielsen and by the present authors).
The principle of precaution and the use of reasonable doubts are not commonplace in refugee law. The assessment of the risk that a person will suffer ill-treatment upon removal is the essence of the prohibition of refoulement. The precautionary principle is most widely used in international environmental law and it emphasises a need for caution when changes to the environment might be brought about (see, for instance, E. Hey, The Precautionary Concept in Environmental Policy and Law: Institutionalizing Caution, Georgetown International Environmental Law Review, 4, 1992, p. 305). The use of the precautionary principle in asylum law is innovative. The Committee is making use of this concept in combination with the reasonable doubts consideration. This makes the threshold for non-refoulement for minors lower than it is for adults. From the perspective of the aims of the CRC, this makes sense. However, the CRC does not provide further guidance on the use of the precautionary principle and the benefit of the doubts. This makes it difficult for state parties and individual applicants alike to assess the implications of these concepts in concrete cases.
In the application of the prohibition of refoulement, the concept of doubt is used in determining on which party the burden of proof lies. In Saadi v Italy, the European Court of Human Rights held that if the applicant adduces evidence capable of proving that there are substantial grounds for believing that he would be subject to treatment contrary to Article 3 ECHR upon removal, the state must dispel any doubts about it. The Committee seems to use the concept of ‘reasonable doubt’ in a similar manner. Based on the principle of precaution, as it is used by the Committee, it is up to the host state to refrain from deporting a child if reasonable doubt exists as to whether the country of destination can protect the child against irreparable harm. Does the Committee with this formulation require states to dispel any doubts that a child will suffer from irreparable harm upon return? Further guidance from the Committee on these concepts would be useful.
Procedural violation of Article 3(1) CRC
In China, birth registration is closely linked with the realization of social and economic rights of children. This includes the right to education, health care and social support. Children from single mothers who are not able to register in the Hukou system are invisible in Chinese society as they have no social identity. For the present case, it is unclear whether Hukou registration is still possible and, if so, how long it will take. With respect to the right to education, China has a series of laws and administrative regulations aiming at providing 9-year free compulsory education for all school-age children without any kind of discrimination. Without Hukou registration, however, it is hardly possible to enrol in a school. Furthermore, children who are not registered are excluded from higher education and development opportunities. Similarly, such children will meet barriers in taking vaccines and in accessing basic health care, which can be life-threatening, particularly under the COVID 19 pandemic. They are also excluded from national social protection and support polices because of their unregistered status.
Regarding the Hukou registration of the children in the present case, the Committee recalls that the burden of proof does not rest solely on the author of the communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to the relevant information (para. 8.6). It is uncertain to what extent Hukou registration is still possible on the basis of the Danish birth certificates and how much time this will take. The Committee therefore concludes that the State party failed to duly consider the best interests of the child when assessing the alleged risk that the author’s children would face of not being registered in the Hukou household register if deported to China and to take proper safeguards to ensure the child’s well-being upon return, in violation of Article 3(1) of the Convention (para. 8.8).
Article 3(1) CRC on the best interest of the child is one of the four guiding principles of the CRC. In 2013, the Committee published General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration. This is an important General Comment because domestic immigration judges and authorities find this principle rather vague and hard to operationalize. According to the General Comment, the child's best interests is a threefold concept. Firstly, it is a substantive right. Secondly, it functions as a fundamental, interpretative legal principle. Thirdly, it offers a rule of procedure. In the present communication, Article 3(1) CRC is not connected to one of the other rights of the CRC. Related to the prospect of the children to register in the Hukou system, Article 3(1) CRC could have been read in conjunction with the right to education (Article 28 CRC), health care (Article 24 CRC) and social protection (Article 26 CRC). In other decisions of the Committee, we do see this connection between Article 3(1) and (one of) the other rights of the Convention (see CRC 5 November 2018, Communication No. 12/2017, Y.B. and N.S. v Belgium, para 8.9). In the present communication, the connection with substantive provisions is not made, positioning Article 3(1) CRC as a procedural right. The legitimation to make no connection with other relevant rights of the CRC could be that the Committee views the best interest of the child as having only a procedural implication to assessing the real risk of irreparable harm. If that reading is correct, the Committee could have been more explicit, providing clarity over the state obligations to take into account the best interests of the child in their assessment of the prohibition of refoulement. In our view, connecting Article 3(1) CRC with substantive provisions would be in line with Article 3(1) as a guiding principle underpinning the CRC and would have made clear that the prohibition of refoulement is enshrined in the substantive provisions of the CRC.
Substantive violations of Articles 6 and 8 CRC
The consequences of the lack of a Hukou registration are determined by the CRC on the basis of reports of the Home Office and the Canadian Immigration and Refugee Board. Furthermore, the Committee refers to its own Concluding Observations on China. These reports state that children born to unmarried parents face numerous difficulties to be registered in the Hukou. Based on this, the Committee concludes that the deportation of the children would amount to a violation of their right to life, survival and development under Article 6 CRC and their right to preserve their identity under Article 8 CRC. The Committee does not further clarify how these substantive rights are impacted and whether a minimum level of severity applies in the assessment of whether these rights would be violated. Although the Committee is restricted in its views to the claims of the author, it could have connected Article 3(1) CRC to the substantive grounds in the author’s communication, as was mentioned earlier. In section 8.3, the Committee refers to General Comment No. 6 and mentions that the principle of non-refoulement is related to Articles 6 and 37(a) CRC. This reference offers the possibility to further explain the real risk of irreparable harm to the children in the concrete case. Which aspect of Article 6 was at stake, life or development or both and what role does the right to identity of Article 8 play? To understand where the prohibition of refoulement is derived from, it is important to know exactly which of the CRC provisions are considered by the Committee. In our view, not all potential interferences with the rights under Articles 6 and 8 CRC can be considered sufficiently serious to amount to a real risk of irreparable harm. Furthermore, in discussing the obligations Denmark has in the context of non-refoulement, the Committee implicitly rules that the access to the Chinese Hukou system is incompatible with the CRC. Providing more clarity in the assessment of compliance with the stated provisions would have been beneficial for both the assessment of future asylum claims as well as for the development of children’s rights in the context of domestic Chinese practices regarding Hukou registration.
We understand the Committee’s findings from a children's rights perspective, but we think that in the interest of the development of the non-refoulement jurisprudence of the Committee, more attention should be devoted to the explanation and substantiation of the arguments.