Introduction

The authors of the complaint were two siblings aged 9 months and 5 years respectively at the time of the complaint in September 2019, and the issue was deportation leading to family separation. Their father was Egyptian, their mother Nepalese and the children both had Egyptian citizenship. The family’s various asylum claims had been rejected by the Refugee Appeals Board. Due to their different backgrounds and the circumstances of their marriage, the mother and father could not be returned together to any of the two countries. As they had not been married before entering Denmark, the Danish authorities held that they were under no obligation under national law to keep the family together. The question was whether in rejecting their asylum claims the Danish immigration authorities had violated the children’s rights under article 3, article 7 and article 9 of the UN Convention on the Rights of the Child (CRC). The UN Committee on the Rights of the Child (Committee) found violations of Articles 3 and 9 because the children’s best interests were not assessed in relation to the decision leading to family separation and did not examine it under Article 7. 

Facts

The mother of the children entered Denmark in 2012 on a student visa valid until July 2015. She gave birth to her first child in July 2014 and married the father in April 2015. In June 2015 she applied for asylum, claiming a risk of violence upon return to Nepal due to conflicts with her family and former spouse. It was rejected. The father had arrived in Denmark in 2010 and applied for asylum in late 2011, arguing that he might face problems in Egypt due to his conflict with an Egyptian family. In December 2014 his asylum claim was rejected, and the decision was upheld by the Refugee Appeals Board. 

After they married in a religious ceremony, the mother submitted an asylum application on his behalf, which was also rejected and the decision upheld by the Refugee Appeals Board.

In 2019 there was an exchange between the Danish National Police and the Refugee Appeals Board about whether the family could be deported separately – the father to Egypt and the mother, with the children, to Nepal – or whether a joint deportation was necessary to uphold their right to private and family life. According to the Danish authorities, they were under no obligation to keep the family together. Danish law prohibits rejected asylum-seekers from marrying in Denmark (para. 2.4), and the authorities do not order joint deportation of families if marriage has occurred after entering Denmark. 

In the meantime, in 2019, the municipality decided to forcibly remove the children from the asylum centre where they lived with their parents. The reason was threats by their mother to commit suicide and kill her eldest child. The children were placed in an observation centre where the family was reunited some weeks later. The observation centre issued an opinion concerning the children’s well-being, finding that the children had a very strong reaction to the first separation from their parents and had a setback in development. Another period of separation would have a significant effect on their development and could be harmful for them, and the centre concluded that the children needed the family to stay together. Still, the Refugee Appeals Board maintained its decision to deport the father separately, without reassessing the situation in the light of the report.

The Danish Refugee Council, Denmark’s largest NGO,¹ formally requested a reconsideration, emphasizing articles 3 and 9 of the CRC. The request was declined on the grounds that there was no new information. The father was scheduled to be deported in September 2019 and detained a week before. A few days later, however, the time limit for the family’s departure was suspended until further notice.

In February 2020, the case was reopened due to new information about the nationality of the children. In June 2021, the family’s applications again were rejected. Neither of the parents were considered to face a risk of persecution in their respective countries. Based on information from the MFA, the immigration authorities found that the family could be removed jointly to Egypt after all, including the mother who could apply for family reunification there. The possibility that the father might be imprisoned for failing to complete compulsory military service in Egypt, and the fear that his wife and children would be unable to cope in his absence, did not form a basis for granting asylum, neither for him nor her.

After several rounds of appeals and decisions nationally, the children and their parents were refused residence permits for Denmark on the grounds that there were no exceptional reasons.

Complaint

The children claimed that their father’s deportation to Egypt would violate their rights under articles 3, 7 and 9 of the CRC, whether he went alone or was accompanied by them. In their view, family separation would seriously harm their well-being and development and would be contrary to their best interests. By not assessing the need for a joint removal of the family, the immigration authorities did not give due weight to their best interests. 

They submitted that as their father was considered a military evader in Egypt, he risked imprisonment upon return. This would prevent him from caring for his children, constituting a violation of article 7 of the CRC. The separation would not be temporary but could become indefinite, which had not been considered by the immigration authorities, contrary to article 9 of the CRC. Neither parent could legally travel to the other parent’s country. The father and the children could be deported together to Egypt, but the mother could not because the parents were not legally married. Marriage under Egyptian law would require the father to prove that he had completed military service, which he had not. Neither could the father travel to Nepal. 

In responding to the complaint, Denmark argued that that the communication should be declared inadmissible as manifestly ill-founded. When parents of different nationalities marry after entering Denmark, the country has no obligation to deport them together. The State further held that the father would not be at risk of imprisonment upon his return to Egypt for failure to complete his military service, because this would be a disproportionate punishment according to Danish legal tradition. Thus, the children had not sufficiently substantiated that they would face a real risk of irreparable harm if deported to Egypt with their father and without their mother.

The Committee’s views

The Committee found that the children had sufficiently substantiated their claims and the complaint was not manifestly ill-founded.

On the merits, the Committee observed that the authorities based their decisions primarily on individual protection grounds and socioeconomic considerations. It was uncontested that the Danish immigration authorities had not taken into account the effect of the potential family separation, the risk of instability in the children’s caregiving environment and the possible harm to their development and well-being.

The Committee took note of the report from the Observation Centre that the children had had strong emotional reactions to the first separation from their parents, resulting in developmental setbacks. Referring to article 9 (1) of the CRC, the Committee recalled the obligation of States to ensure that children are not separated from their parents against their will, unless such separation is necessary in the best interests of the children. The Committee underlined that the legal duty to assess the best interests of the child applies to all decisions and actions that affect the child, even if they are not the direct target of the measure. If a decision could lead to a child and the parents being separated, including detention or expulsion of parents, a best interests assessment and determination is indispensable. There should be routines for assessing the best interests of the child at the different stages of migration and asylum procedures that might result in separation. 

The lack of consideration of the “likely prolonged” separation of the family members in this particular case (7.5), and the consequences of such separation on the children, amounted to a violation of articles 3 and 9. Considering the potentially significant impact of the decisions, and their young age, there should have been a detailed assessment of their best interests. It was not considered necessary to examine the complaint under article 7 separately. 

Denmark’s obligations of follow-up to this decision were twofold. First, the State must ensure a reassessment of the children’s claims, taking their best interests into consideration, and refrain from separating the family. Second, the State must prevent similar violations in the future by ensuring that children’s best interests are always considered in proceedings affecting them directly or indirectly. In particular, decisions concerning separation of children from their parents should include a careful consideration of its impact on the children. The Committee emphasised that this should be done in the light of the children’s specific circumstances, while also considering all possible alternatives to such a separation.

Commentary

The case in many ways is similar to O.M. against Denmark (CRC/C/94/D/145/2021) which Collinson comments on in case note 2023/08. Both cases deal with Danish deportation decisions and the Committee in both cases found that articles 3 and 9 had been violated. In O.M., however, the father was the complainant. He would be deported to Nigeria alone because the mother had a residence permit in Denmark due to her chronic illness, and the children would stay with her. In the present case (NMIA and NuMIA), the children were the complainants. The whole family would be deported due to the rejection of their asylum claims. It seems unclear whether the children would be deported to Egypt with their father or to Nepal with their mother. The decision mentions that they complained about “their deportation to Egypt, separately from their mother” (para. 1.1), but elsewhere “their father’s deportation to Egypt, whether alone or accompanied by them” (para. 3.1). However, the Committee at para. 7.6 speaks about the “authors’ deportation to Egypt” and the separation from their mother that this would entail.

The reasoning in the two decisions is to some extent the same, the present case at para. 7.4 repeating O.M., at para. 8.6 on the States parties’ legal obligations almost word by word. The paragraphs specify the obligation under article 9 (1) to avoid separation of children from their parents unless necessary in the best interests of the children, and the general obligation under article 3 to assess the best interests of children in any decision affecting them. Where the two decisions differ is regarding the proportionality of the return order. As described by Collinson, the Committee in O.M. accepts that the children’s right not to be separated from their parents is balanced against the State’s interest in enforcing its criminal and migration laws and decisions. In the present case there is nothing about proportionality, probably because the case deals with the decisions about the children’s own deportation, not that of the father. O.M. is described by Collinson as “an example of a case in which the domestic authorities viewed the entirety of the human rights issue through the lens of whether the adult can maintain their own family life, rather than through the lens of the children’s best interests”.  In NMIA and NuMIA, on the other hand, the right to family life only occurs as part of the obligation not to separate the family under article 9 of the CRC.

In relation to the discussion about procedural or substantive outcomes in case note 2023/08 on O.M., the Committee in NMIA and NuMIA repeats that it is “not for the Committee to interpret domestic law or to assess the facts of the case and the evidence in place of the national authorities but to ensure that their assessment was not arbitrary or tantamount to a denial of justice and that the best interests of the children were a primary consideration in that assessment” (para. 7.4). The outcome of the case was procedural in that Denmark was asked to reassess the children’s claims, considering their best interests (para. 8). In the light of the facts of the case being unclear, the Committee might have stopped there. There was, for example, varying information regarding the possibility of the mother to enter Egypt as well as the potential imprisonment of the father. 

However, the Committee added to its conclusion on the State’s obligations “and to refrain from separating the family” (para. 8). This is a substantive outcome as the obligation was not made subject to the reassessment of the children’s best interests. Although no further reasoning is provided at that point, the Committee earlier noted the opinion of the observation centre that “a renewed separation could significantly affect the children’s development and potentially be harmful to their well-being” (para. 7.3). The Committee may have found this convincing. In addition, a joint deportation did not seem impossible, and the Danish authorities had already discussed it among themselves. Perhaps the outcome is also related to the above-mentioned distinction between decisions regarding the children themselves and those regarding a parent. 

In the absence of any explicit reasoning, we do not know why the Committee concluded as it did on the obligation to refrain from separation. Nevertheless, it is a welcome indication that article 9 (1) of the CRC provides not only a procedural right. 

The Committee keeps open what non-separation would mean in practice, whether the State would have to let the whole family stay in Denmark or whether a joint deportation to Egypt would be feasible. That would have to be left to the national authorities and their reassessment of the children’s best interests.