Domestic violence asylum claim inadmissible (N.S.F. v. U.K.)

 

N.S.F., a Pakistani national, sought asylum in the U.K. on behalf of herself and her two children.  She claimed that she was entitled to asylum because she is a victim/survivor of domestic violence, including marital rape and death threats, and had a well-founded fear of persecution at the hands of her abusive ex-partner.  In support of her claim, N.S.F. submitted that Pakistani authorities had failed to provide her with any protection against her former partner and, as a consequence, she had been forced to relocate several times within Pakistan.

U.K. authorities dismissed N.S.F.’s claim on the basis that she could find safety from her abusive former partner by relocating to another part of Pakistan.  Subsequent appeals, including to the Immigration Appeal Tribunal, the High Court for Statutory Review and the Home Office, were unsuccessful.  A communication submitted to the European Court of Human Rights was declared inadmissible on the basis that it “did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.”

The author subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in which she claimed that she feared for her life and the future and education of her children if deported back to Pakistan.  N.S.F. failed to identify which specific provisions of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) she alleged the U.K. had violated.  However, the CEDAW Committee indicated that the communication appeared to raise concerns regarding the U.K.’s compliance with the general legal obligations of States Parties in articles 2 and 3. 

Interim measures

The U.K. complied with a request for interim measures not to deport N.S.F. and her two children back to Pakistan whilst her communication was pending before the Committee. 

The U.K.’s observations on admissibility

The U.K. contested the admissibility of the communication on several grounds. 

First, it argued that N.S.F. had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).  It submitted that N.S.F. was eligible to apply for judicial review of the decision denying her asylum and had failed to raise the substance of her claim of sex discrimination before domestic authorities. 

Second, the U.K. claimed that the communication should be declared inadmissible under article 4(2)(a) of the Optional Protocol because the same matter had already been examined by the European Court of Human Rights. 

Last, the U.K. submitted that the communication should be declared inadmissible under article 4(2)(c) of the Optional Protocol, as the allegations had not been sufficiently substantiated and were manifestly ill-founded.  In this connection, it claimed that the communication was based on the same facts previously rejected by domestic authorities and did not specify a legal basis upon which N.S.F could claim a breach of CEDAW. 

CEDAW Committee’s decision on admissibility

The CEDAW Committee determined that N.S.F had failed to exhaust domestic remedies and, on that basis, declared the communication inadmissible under article 4(1) of the Optional Protocol.  The failure of N.S.F. to raise sex discrimination before domestic authorities was central to the Committee’s finding.  It explained:

no allegation of sex discrimination has ever been formulated by the author and, as a consequence, the domestic authorities and/or courts have not yet had an opportunity to deal with such an assertion, which, in the opinion of the Committee, needs to be considered in the light of the State party’s obligations under the Convention.  As a consequence, and in the light of the State party’s view that an allegation of sex discrimination would be relevant for consideration by the Home Office when again considering the author’s case and, in due course, could form part of the arguments in support of an application for permission to apply to the High Court for a judicial review, the Committee finds that the author should avail herself of this remedy. 

The Committee declined to make determinations related to the other grounds of admissibility.

Communication No. 10/2005, UN Doc. CEDAW/C/38/D/10/2005 (12 June 2007)

Decision

 

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