H.K., a national of India, is submitting the communication on behalf of her daughter, S.K., vs Denmark for denying by Denmark of their applications for asylum. H.K. claims that her daughter’s rights under articles 3 and 22 of the Convention would be violated if she and her daughter were to be deported to India.
H.K. has a master’s degree in computer science, a subject which she has taught at the university level in India. In 2013, H.K. married A.S. in India, who later travelled to Denmark on a student visa. In 2015 H.K. joined him in Denmark and was granted a residence permit as an accompanying family member. S.K. was born in 2017 in Denmark.
While H.K. and her husband were still residing in India, approximately six months into their marriage, she was subjected to violence by her spouse. Her spouse continued to subject her to abuse on a daily basis when they were residing in Denmark. Approximately four months into H.K.’s pregnancy with S.K., the author was hospitalized, after having been assaulted by her husband. She was diagnosed with post-traumatic stress disorder, depression and anxiety.
After H.K.’s hospitalization, A.S. was deported from Denmark. As a result, the residence permit of H.K. also lapsed. She continued to reside in Denmark without a residence permit, given that she could not travel back to India because of the alleged risk of violence by her husband. She applied for asylum in Denmark in 2017.
H.K.’s and S.K.’s applications for asylum were rejected by the Immigration Service on 12 June 2018.
As motive for seeking asylum, H.K. used the following arguments:
– she feared being killed by her husband if she were to be deported to India;
– she feared that she and her daughter would be physically hurt by her parents, because she had married her husband against their will
– she had been physically abused by her husband on a regular basis, both in Denmark and in India, and that, following his deportation, he had sent her death threats through direct messages on her social media account, which led her to deactivate the account
The Immigration Service accepted the author’s claims that she had been subjected to domestic violence by her husband in Denmark, but it found that:
– she can have access to State protection in India (crisis centres to provide legal and medical assistance to women who had been subjected to domestic violence
– it is suspicious that the author had deactivated her social media account without saving evidence of the alleged threats made by her husband.
– previously H.K. had not mentioned any alleged threats from her parents. It was only in May 2018 that that claim was made.
The Immigration Service found that to be an escalation of her asylum claims. It found her statements with regard to the alleged threats from her family not to be credible. The decision was upheld by the Refugee Appeals Board in 2019. The Board also noted that the author’s statements regarding the alleged incidents of violence in India were contradictory, as were her statements regarding her contact with her family.
CRC considered the case.
The Committee notes that, in the present case, it is unrefuted that H.K. has been subjected to gender-based violence by her husband. The Committee takes note of H.K.’s claims that she fears being subjected to repeated violence by her husband, if she were to be removed to India, and that S.K.’s safety would also be at risk, due to threats made against H.K. and S.K., following H.K.’s husband’s deportation. The Committee takes note of the State party’s assertion that State protection would be available to H.K. and her daughter if they were to be removed to India. However, in the light of the concerns expressed by the Special Rapporteur on violence against women, its causes and consequences, about the availability in practice of State protection in India, the Committee finds that the Danish authorities failed to accord sufficient weight and to examine in detail H.K.’s claim that State protection would in practice be unavailable to her and her daughter in India, if they were to be removed there, especially taking into account H.K.’s claims that she would not be able to seek assistance from her family, because they have disowned her, and that she would not be able to seek governmental protection, due to her husband’s and his family’s political connections. The Committee therefore finds that Danish authorities, in taking the decision to remove the author and her daughter, failed to properly consider those matters and the real and personal risk of a serious violation of S.K.’s rights, such as being a victim of, or witness to, violence, with the trauma associated therewith. The Committee concluded that Denmark failed to adequately take into account the best interests of the child as a primary consideration when assessing H.K.’s and her daughter’s asylum requests, so as to protect S.K. against a real risk of irreparable harm in returning her to India, in violation of S.K.’s rights under articles 3, 6, 22 and 37 (a) of the Convention.
So, there is a violation of S.K.’s rights under articles 3, 6, 22 and 37 (a) of the Convention.