X.H.L. v. The Netherlands
UN Human Rights Committee
Communication No. 1564/2007
22 July 2011
International Covenant on Civil and Political Rights: articles 7 (Freedom from torture, inhuman and degrading treatment), 17 (Unlawful or arbitrary interference with privacy, family, home or correspondence) and 24 (Special protection for children).
The author of the communication is Mr. X. H. L., a Chinese national, entered the Netherlands as an unaccompanied minor when he was 12 years old. Upon arrival in the Netherlands, the author applied for asylum but his application was rejected under an accelerated procedure. He appealed, and the court ordered the Minister of Immigration to reconsider the application through the full procedure. Mr. L’s application was turned down and his appeals to the District Court and the Council of State were unsuccessful.
Mr. L. claimed to be a victim of violations by the Netherlands of articles 7 (freedom from torture, inhuman and degrading treatment), 17 (unlawful or arbitrary interference with privacy, family, home or correspondence) and 24 (special protection for children) of the International Covenant on Civil and Political Rights (the Covenant). He claimed that the decision to return him to China was violating article 7 of the Covenant because he would be subjected to inhumane treatment. He explained that, since he was only 12 when he left China, he did not have his own identity card or hukou registration. Without these, he could not prove his identity or access orphanages, healthcare, education, or any other kind of social assistance in China. He noted that, given that he had no contact or family connections in China, he would be forced to beg in the streets. He further claimed that the State party’s decision to return him to China constituted a breach of his right to private and family life recognised by article 17 of the Covenant, considering his Dutch guardian as his only family, without any family left in China and unaware of his mother’s whereabouts. Finally, a further violation of article 24 was claimed calling that the rejection of his request for asylum or for a permit on humanitarian grounds was against his best interests as a minor. He argued that he was integrated into Dutch society since his arrival in 2004 and had learned the language (Paragraph 3.1 to 3.3).
The Committee first considered that the author’s claim under article 17 was inadmissible for non-exhaustion of domestic remedies. The Committee noted the State party’s argument in the sense that the author failed to use his opportunity to invoke this right by not applying for a regular residence permit on grounds of exceptional personal circumstances, according to the relevant domestic legislation. However the Committee considered that the State party was under an obligation to provide Mr. L. with an effective remedy by reconsidering his claim in light of the evolution of the circumstances of the case, including the possibility of granting him a residence permit.
The Committee then examined both claims, under article 7 and article 24, jointly. It considered that the State party failed to duly consider the extent of the hardship that the author would encounter if returned, especially given his young age at the time of the asylum process. The Committee further noted that the State party failed to identify any family members or friends with whom the author could have been reunited in China. Rejecting the State party’s statement that it would have been in the best interest of the author as a child to be returned to that country, the Committee concluded that, by deciding to return the author to China without a thorough examination of the potential treatment that the author may have been subjected to as a child with no identified relatives and no confirmed registration, the State party failed to provide him with the necessary measures of protection as a minor at that time.
Therefore the Committee was of the view that the State party’s decision to return the author to China violated his rights under article 24, in conjunction with article 7 of the Covenant.
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