El-Hichou v. Denmark
OHCHR – Human Rights Committee
Communication No. 1554/2007
22 July 2010
International Covenant on Civil and Political Rights: articles 23 (Arbitrary interference with family life/protection of the family) and 24 (Right of the child to protection).
Convention on the rigths of the child: articles 5 (Rights and duties of parents), 9 (Separation from parents), 10 (Family reunification) and 18 (Parental responsibilities).
The author of the communication was Mr. Mohamed El-Hichou, a Moroccan national, born on 6 June 1990 and residing in Denmark. He claimed to be a victim of violations by Denmark of articles 23 (arbitrary interference with family life/protection of the family) and 24 (right of the child to protection) of the International Covenant on Civil and Political Rights (‘The Covenant’).
The parents of Mohamed El-Hichou divorced before he was born. His mother obtained custody over him and he lived with his mother’s parents in Morocco until their death in 2000. After the death of his maternal grandparents, El-Hichou’s mother could not support him and he was placed with his paternal grandmother, who had difficulties taking care of him. After the divorce, his father moved to Denmark, where he remarried and had two children. Since Mohamed’s birth, his father supported him financially, regularly spent summer vacations with him and maintained regular contact through letters and phone calls. In 2003, his mother remarried and transferred the custody over El-Hichou to his father.
Mohamed started to apply to be reunited with his father in Denmark in 2002. However, the Danish Immigration Service rejected several times his application. More specifically, whilst approving the transferral of the custody in 2003, the Danish Immigration services rejected the application for family reunification, stating that the applicant’s father had not proved the ability to maintain him.
In September 2004, due to the difficult living conditions he was experiencing in the home of his elderly grandmother, Mohamed left Morocco and illegally joined his father in Denmark.
Court proceedings occurred until April 2007 when the police visited Mohamed El-Hichou and informed him that he should leave the country within a week.
El-Hichou claimed before the Committee that the refusal to grant him a residence permit in Denmark and the order to leave the country, if implemented, would constitute violations of his rights under articles 23 and 24 of the Covenant. The author maintained that although the rights of the child, as specified in the Convention on the Rights of the Child, can not be considered as a direct legal instrument for a decision of the Human Rights Committee, nevertheless their content can contribute to the interpretation and understanding of what constitutes a violation under article 24 of the Covenant. He therefore highlighted the provisions of articles 5 (Rights and duties of parents), 9 (Separation from parents), 10 (Family reunification) and 18 (Parental responsibilities) of the Convention on the Rights of the Child.
The Human Rights Committee considered that the decisions not to allow the reunification of Mr. El-Hichou and his father in the State party’s territory and the order to leave the State party, if implemented, would constitute a violation of articles 23 and 24, paragraph 1 of the Covenant. To make its decision, the Committee considered the very specific circumstances of the case: the Committee stressed that Mohamed and his father had a family life, both before he joined his father and afterwards. The fact that the author had remained illegally in Denmark did not influence the fact that he developed family ties not only with his father, but with his half–siblings and their mother. The Committee also observed that Mohamed learned the local language and developed certain ties with the local culture and society. It noted the State party’s submission that if the author was returned to Morocco there was nothing to prevent him and his father from maintaining the same degree of family life they had before Mohamed came to Denmark. The Committee observed, however, that two important circumstances have changed. Firstly, already in the year 2000, the author’s maternal grandparents, who were his de facto caregivers during the first 10 years of his life, were deceased. Second, in 2003 his mother transferred his custody to his father, a transfer recognised by the State party’s authorities, and the primary responsibility for his support and upbringing after that, lies with his father (Paragraph 7.3).
The Committee also took note of the State party’s argument that the initial separation of Mohamed El-Hichou and his father were caused entirely by the decision of the latter to move to the State party and leave his son in his country of origin and that he made no attempts to reunite him with his new family until he was 11 and a half years old. The Committee observed that the Mohamed’s parents were divorced, his mother obtained the custody of him after his birth and that for the first 10 years of his life he was adequately cared for by his grandparents. The Committee also observed that when those circumstances changed, Mohamed’s father started to make attempts to reunite with him in order to assume the role of a primary caregiver. The Committee also observed that at stake in the present case are the author’s rights as a minor to maintain a family life with his father and his half-siblings and to receive protection measures as required by his status as a minor. The Committee notes that the author cannot be held responsible for any decisions taken by his parents in relation to his custody, upbringing and residence (Paragraph 7.4).
The Human Rights Committee was therefore of the view that the decisions not to allow the reunification of Mohamed El-Hichou and his father in the State party’s territory and the order to leave the State party, if implemented, would constitute interference with the family, contrary to article 23, and a violation of article 24, paragraph 1 of the Covenant, due to a failure to provide the author with the necessary measures of protection as a minor.
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