CCPR: Deportation of applicants to Afghanistan after extramarital affair would expose them to a risk of inhuman and degrading treatment

Friday, July 17, 2020

On 17 July 2020, the Human Rights Committee published its views in R.M. and F.M. v Denmark (No. 2685/2015) concerning the deportation of a husband and wife and their children to Afghanistan.

R.M. and F.M. fled Afghanistan after having sexual relations outside of marriage and falling pregnant. A number of threats were made against the couple and the brother of R.M. was killed after helping the them escape the country. F.M. and R.M. arrived in Denmark in April and December 2012 respectively and applied for asylum immediately. The Refugee Appeals Board upheld the decision to reject their applications on the basis that, inter alia, their account was implausible and fabricated, and contained inconsistencies in respect of dates of events. The applicants argued that they would be exposed to a real risk of irreparable harm contrary to Articles 6 and 7 ICCPR. They argued, inter alia, that sexual intercourse outside of marriage is a criminal offence in Afghanistan and that their case was known as it had been discussed in Afghan media. Moreover, they argued that the F.M. suffered with poor mental health and had previously attempted suicide.

The Committee noted that even when a domestic authority identifies inconsistencies in an applicant’s account, the test for the Committee is nevertheless to determine whether there are grounds for believing that the applicants would be exposed to a real risk of irreparable harm in the event of return. Indeed, it is uncontested that the applicants had an extramarital affair, and it was therefore incumbent on the State to carry out an individualised assessment of the risk in the event of return to Afghanistan. In this case, the Refugee Appeals Board had failed to adequately assess the real, personal and foreseeable risk that the applicants would be exposed to in the event of return. As such, the Committee concluded that the deportation of the applicants to Afghanistan would result in a violation of Articles 6 and 7 ICCPR.

Photo: GPA Photo Archive, September 2010, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.