The author of the communication was OM, a Nigerian national resident in Denmark. The complaint arose out of a decision by the Danish authorities to deport OM – a father and stepfather to three children – after he was convicted of a minor criminal offence.
The negative impacts on children of enforced separation from a parent because of immigration enforcement – including emotional, social, psychological, financial, and educational impacts – are well documented (Grant et al; Children’s Commissioner). However, despite this, the deportation of foreign nationals is now a ‘normalized’ (Bloch and Shuster) part of immigration control across Europe as ‘an almost automatic consequence of criminal conviction’ (Aliverti and Bosworth). Many individuals facing deportation rely on human rights protections from international human rights bodies, such as the Committee on the Rights of the Child (the Committee), as the last legal recourse for them and their families.
It is not surprising, then, that a large number of pending cases before the Committee are concerned with deportation. Given also that only a small fraction of cases brought to the European Court of Human Rights are declared admissible (Dembour), it is unsurprising that the majority of such pending cases are complaints against a small number of European states. This complaint is decided in the context of a number of other recently decided Committee complaints against Denmark in the deportation context, particularly IAM, WMC, and HK. Clearly the Committee has been identified as a promising avenue for vindicating the human rights of migrants and their children.
In this complaint to the Committee, OM complained on behalf of his stepson and two children, alleging that his deportation would constitute a violation of their rights under the Convention on the Rights of the Child (Convention), article 3 (best interests), article 7 (the right to know and be cared for by his or her parents), article 9 (that a child shall not be separated from his or her parents), and article 10 (applications for family reunion) (para 1.1). The Committee’s view was that there was a violation of articles 3 and 9, and that therefore no consideration of articles 7 and 10 was necessary (para 8.9).
The author of the communication was OM, a Nigerian national resident in Denmark. He complained on behalf of his stepson and two biological children, alleging a violation of Convention rights under article 3 (best interests), article 7 (the right to know and be cared for by his or her parents), article 9 (that a child shall not be separated from his or her parents), and article 10 (applications for family reunion) (para 1.1).
OM was an asylum applicant in Denmark. After claiming asylum in 2015, he absconded from the asylum centre where he was being housed and as a consequence the asylum procedure was terminated. In 2016, OM was sentenced to three months imprisonment for possession of unnamed drugs and served with an expulsion order with a six-year re-entry ban. Since June 2017 he was ordered to remain in a deportation centre and report daily to the police (para 2.1). He was reported missing from the deportation centre on two occasions (para 2.3). In March 2019, OM was sentenced to 60 days imprisonment for failing to respect the order to remain at the deportation centre, and the expulsion order and re-entry ban was reconfirmed (para 2.3). The High Court confirmed the expulsion order in May 2019 (para 2.4) and January 2021 (para 2.7).
In 2017, OM began a relationship with CCA. CCA was a national of Nigeria but had a residence permit since 2016 to reside in Denmark because she had chronic leukaemia. CCA requires highly specialised treatment and if this was interrupted, she would not be able to live for more than four years (para 2.2). CCA had a son (CCOU) from a prior relationship. CCOU had a residence permit to reside in Denmark with his mother. CCOU’s father does not reside in Denmark (para 2.2). CCA and OM had two children themselves: CCAM was born in 2018 and ACC in 2020, and both have residence permits for Denmark (paras 2.3 & 2.7).
The High Court acknowledged the existence of family life but found that the expulsion of OM would not be disproportionate and stated that it would not be impossible nor an insurmountable difficulty to continue family life in another country. In addition, OM could maintain family life through digital communications and visits taking place outside Denmark (paras 2.4 & 2.7).
OM was detained in February 2019, served his criminal sentence for failing to respect the order to remain at the deportation centre, but remained in custody for the purpose of his forcible removal, as permitted by Danish law. The Nigerian embassy had agreed to issue travel documents for OM, but these had failed to materialise. OM remained in custody when the communication to the Committee was made in May 2021 (para 2.6).
OM complained that his deportation would violate the Convention rights of his biological and social children. He argued that their separation from him would be contrary to their best interests and have a serious negative impact on their well-being, especially given that their mother is facing a life-threatening illness (para 3.1).
OM complained that the Danish courts had failed to mention, let alone assess, the best interests of the children as a primary consideration. He complained that the courts had not engaged in an appropriate examination of the various factors related to the best interests of the child and did not weigh the best interests of his children against the gravity of the crime committed and the public interest in this case (para 3.2).
OM argued that the best interests of the children would be violated by his deportation (contrary to article 3) and that his deportation would result in the de facto permanent separation of the family (contrary to articles 7 & 9). OM argued that his children could not follow him to Nigeria because their mother’s medical treatment in Denmark prevented her from travelling for long periods of time and the children are too young to travel independently. Digital forms of communication would not be adequate to establish and maintain a relationship with his children and he is unable to visit the children in Denmark because of the re-entry ban (paras 3.3 & 3.4).
OM argued that there are no other caregivers for the children and that because their mother required frequent hospitalisation it is difficult for her to care for three small children alone. In addition, her condition may deteriorate, or worse, she may pass away. In this case, the children would have to move to Nigeria – a country that the oldest child had left age two and the other children had never visited – to be cared for by a father who had not been able to build or maintain a proper relationship with them (para 3.3).
The Committee found that all the complaints of CRC violations were admissible. The complainant had not legally exhausted all his domestic remedies, as he had not exercised further rights to appeal against the most recent administrative and judicial refusals of his residence permit application, as possible under section 63 of the Danish Constitution (para 7.2). However, the Committee found that this right of appeal did ‘not have any prospect of offering effective redress’ (para 7.3) and thus the complaint was admissible.
The Committee found that OM was the ‘parent’ of CCOU for the purposes of the Convention, despite CCOU not being the biological or adopted child of OM. The Committee noted that OM had taken care of CCOU with his mother since the age of two (para 8.3).
The Committee emphasised that it will not make its own, substantive assessment as to where the balance lies between the best interests of the child and the state’s migration interests: 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’ (para 8.5). The Committee will only ‘ensure that their [national authority’s] 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 8.5).
The Committee took note of the State party’s claims to have considered the children’s rights to family life, but found that the State party had ‘failed to consider the impact of the separation on the children’ in general or in the specific context of their mother’s health condition (para 8.6). This failure of consideration meant that the State party had ‘in practice’ violated articles 3 and 9(1) of the Convention (para 8.7).
Procedural or Substantive Outcomes?
Rather than consider the substantive question as to whether or not the effect on OM’s children of his deportation and re-entry ban was disproportionate to the Danish state’s ‘legitimate interest in enforcing its criminal and migration laws and decisions’ (para 8.7), the Committee further developed a procedural outcome which had been evident in some of its previous jurisprudence. The Committee emphasised that the right in article 9(1) CRC (not to be separated from one’s parents) is subject to an exception whereby competent authorities, subject to judicial review, may find that such separation is in the best interests of the child (article 9(1)), or necessary to effect the detention, imprisonment, exile or deportation of the parent (article 9(4)). The Committee took the view that its role was therefore to supervise whether the procedure adopted by the State party to determine whether or not the exception to the right was made out was sufficiently robust in order to protect the best interests of the child.
The Committee’s reasoning in OM is consistent with a view that article 9 provides only a procedural right, finding that ‘States parties have an obligation to assess and determine the best interests of the child at the different states of migration and asylum procedures’ (para 8.5, emphasis added). As a consequence, the Committee will not make its own, substantive assessment as to where the balance lies between the best interests of the child and the state’s migration interests: 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’ (para 8.5). Instead, the Committee’s supervisory function is to ensure what Leloup advocates as procedural rationality and which Sormunen describes as a procedural mode of decision-making wherein the reviewing body ‘does not substantively assess which outcome is in the best interests of the child in question but instead reviews the procedure that led to the outcome’. The Committee will only ‘ensure that their [national authority’s] 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 8.5). In finding a violation of articles 3 and 9 CRC, the Committee clearly believed that the administrative and judicial decision-making processes conducted by the Danish authorities failed to discharge these procedural obligations.
A procedural outcome for procedural rights in OM contrasts with the substantive outcome given to the complainants in two other cases before the Committee concerning deportation. IAM v Denmark arose from a complaint that the child’s deportation with her mother would put her at risk from FGM in Somalia, in violation of article 3 (best interests) and article 19 (to protect the child from all forms of physical or mental violence whilst in the care of parents or guardians). In WMC v Denmark, the deportation of mother and children to China where their lives would be affected by the hukou (family household register) system was found by the Committee to violate articles 3 (best interests), 6 (life), and 8 (identity). In both these cases, where the articles violated were clearly of a substantive nature, the Committee placed the state under an absolute obligation to refrain from deporting the complainants and children.
It is a rational distinction for the Committee to draw between substantive and procedural articles and to provide different forms of outcome – substantive or procedural – as a consequence of the form taken by the article which is violated (although the desirability of such an approach can be separately debated). Although each case also disclosed a violation of article 3 best interests this article has itself, according to General Comment 14, both a substantive and procedural facet. Again, a rational case can be made that whether article 3 is a substantive or procedural right is contextual, in that it is dependent on whether the other rights that it is attached to in any individual complaint are themselves procedural or substantive (although, again, the desirability of this can be challenged).
However, the Committee has not developed a consistent jurisprudence in this vein. In HK v Denmark the complainant alleged that their deportation from Denmark would create a risk of violence to her and her child from an abusive husband/father in India and the Committee found violations of article 3 (best interests), article 6 (right to life), article 22 (protection of refugees), and article 37(a) (prohibition of torture). These are all fundamentally substantive rather than procedural rights. Yet, as in OM, the outcome was procedural rather than substantive because the State party was obliged only to reconsider the deportation decision, ensuring that the best interests of the child were a primary consideration in its reconsideration.
There is nothing in the factual differences between these four complaints before the Committee which discloses any reason why the outcome in HK should have been procedural rather than substantive. OM might be distinguished from IAM and WMC on the basis that there was no risk of physical harm to the children in OM: the right not to be separated from one’s parents is primarily concerned with a child’s emotional wellbeing, rather than their physical welfare. However, at stake in HK was a risk of physical violence by non-state actors, just as in IAM (FGM in Somalia). OM might alternatively be distinguished because in that case the children were not at risk of de jure or de facto deportation as the Committee accepted that the children would not be leaving Denmark to join their father should he be deported (para 8.4). However, HK involved the risk of the direct deportation of the child, just as in IAM and WMC.
Although there may be a rational argument for providing a procedural rather than substantive outcome in OM, there is nothing in the Committee’s reasoning in any of these other cases to indicate why the outcome in HK was also a procedural one.
Additionally, the Committee in OM determined that the complaints under articles 7 and 10 of the Convention were admissible ratione materiae (para 7.5). However, in finding a violation of articles 3 and 10 CRC ‘the Committee does not consider it necessary to separately examine whether the same facts would amount to a violation of the children’s rights under articles 7 and 10 of the Convention’ (para 8.9). However, if the Committee is developing a jurisprudential distinction between substantive and procedural CRC rights, this blunt dismissal is inadequate: Article 7 CRC (the right to know and be cared for by his or her parents) is evidently a substantive right. On the logic that substantive rights ought to have substantive outcomes from the Committee, it should have led the Committee to provide the same substantive outcomes as in IAM and WMC.
Furthermore, in their Commentary on the Convention, Tobin and Pobjoy argue that Article 10 CRC is ‘more than just a mere procedural entitlement’ and instead creates a substantive ‘presumption in favour of reunification’. Is the procedural outcome in OM an indication that the Committee disagrees with Tobin and Pobjoy’s assertion that Article 10 does contain a substantive right, or does it indicate that the Committee thinks that in this case only the procedural elements of Article 10 were engaged?
The absence of satisfactory answers to these questions is not just one of intellectual curiosity or academic debate. Future claimants need to know how best to present their complaints to the Committee in order to effectively argue their case and obtain the best possible resolution (which may involve carefully selecting which articles to complain under). In this case, admissibility was disputed by the State party on the basis that:
the authors failed to identify any irregularities in the proceedings before the courts or the decision-making process [and that…] the author’s communication merely reflects the fact that he disagrees with the outcome of the assessment of the specific circumstances of the present case (para 4.7).
A clear understanding that complaint of a violation of a procedural right will be analysed by the Committee only on the basis of deficit of process would enable complainants and their representatives to draft their complaints appropriately and so not risk a future composition of the Committee determining the question of admissibility differently than in OM because the complaint failed to contain relevant submissions to disclose a procedural deficiency.
Overall, therefore, it is therefore difficult to conclude that the Committee is developing a rational jurisprudence to provide procedural outcomes to violations of procedural rights, and substantive outcomes to violations of substantive rights, when there appears to be such a glaringly inconsistent application of that approach. As Klaassen and Rodrigues concluded in their commentary on WMC, ‘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.’
Procedural Outcomes and Institutional Competence
Leloup advocates for the application of procedural rationality to deportation decisions so that the supervising human rights body ought to only consider whether the procedures by state authorities were adequate, not whether or not the substantive decision made as to the balance to be struck between the rights of the child and the interests of the state was the correct one. Leloup’s argument is pursued in the context of the European Court of Human Rights (ECtHR), and thus some (although by no means all) of his arguments for procedural rationality apply specifically as a solution to the ECtHR’s well documented problems of inconsistency in deportation decision-making. For example, Leloup argues that ‘it is up to the national authorities to give meaning to what is in the best interests of the child, rather than to the Strasbourg Court’ and that procedural outcomes counter the claim that a substantive application of the best interests of the child principle expands the scope of the European Convention beyond its textual and political limits.
However, this argument about institutional competence simply does not apply to the Committee, and arguably applies in reverse. The ECtHR developed the best interests of the child as a factor in the balancing exercise for the right to family life under the European Convention as a novel development that is not included anywhere in the text. The legitimacy of this development can be enhanced by the ECtHR providing a greater margin of appreciation to states. In contrast, the best interests of the child was from the outset ‘one of the fundamental values of the Convention [on the Rights of the Child]’ (General Comment 14), and the Committee is institutionally competent to substantively determine the meaning of the best interests of the child and the other articles in the CRC.
The arguments for procedural rationality also overemphasise the possibility of making a decision on the procedural validity of a national authority’s decision without making substantive assessments as to what the best interests of the child are. Leloup argues that a procedural approach to deportation decisions ‘leaves this assessment to the national authorities and [the ECtHR] merely verifies if they gave due weight to these interests’ and that the advantage is that ‘in this way the Court’s proportionality assessment is made considerably clearer.’ Some cases may be obvious, such as where the national authority has simply failed to consider the impact of a deportation decision on a child.
Such may be the case in OM where the complainant alleged that ‘in all the different proceedings, there has been no mention of the effect that the author’s expulsion order and re-entry ban would have on the children’ (para 5.3). The State party argued that:
the courts have carefully considered the right of the victims to family life when assessing the case of their father/“stepfather” and, in this regard, the opportunities for them to maintain contact and know him and thus have taken into account their best interests (para 4.9).
It appears that OM is 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, finding in particular that the domestic authorities ‘failed to consider the impact of the separation on the children’ (para 8.6, emphasis added) as opposed to the impact of separation on the father alone.
However, in more marginal cases, to verify whether or not the national authorities have given sufficient weight to the best interests of the child (as per Leloup’s articulation of a procedural approach) the Committee must come to some kind of substantive view as to what sufficient weight is so that it can determine whether or not the national authorities have procedurally failed to provide the required amount of weight. For example, in OM, the Committee identifies that ‘contact through social media platforms does not ensure that the children can maintain adequate and meaningful personal relations and direct contact with the author’ (para 8.6). This is a substantive finding, rather than simply a procedural one.
Finally, a procedural outcome can be critiqued for its effectiveness. The domestic immigration authorities could hear the cases again, apply the best interests of the child as a primary consideration, and still find that the deportation of the complainants should be carried out. If they believe that the weight assigned by the domestic authorities to the best interests of the child is again insufficient, the complainants would then find themselves on a merry-go-round of further complaints to the Committee, or relying for remedy through the Committee’s consideration to the state’s written response under Article 11 of the Optional Protocol. The latter avenue is particularly opaque as to the follow-up actions that the Committee can take if it decides that the immigration authorities have again taken a decision which still fails to properly consider the best interests of the child.