Asylum communication concerning sexual harassment and religious persecution declared inadmissible (M.S. v. Denmark)


M.S. is from Rawalpindi, Pakistan, and belongs to the Christian minority of Anglo-Indians.  M.S. claims she is a victim of religious discrimination and sexual harassment in Pakistan.

M.S. claims that, when she was about 16 years old, A.G. asked to date her and threatened her with reprisals when she refused his request.  According to M.S., A.G.’s brother, a high-ranking Pakistani police officer, then arrested her brother and her family had to pay a bribe to secure his release. 

M.S. subsequently moved to another location in Pakistan.  M.S. claims that A.G. verbally assaulted her at work, forcing her to resign.  M.S. took another job, but says she resigned when her boss subjected her to sexual harassment.  M.S. took another job and claims her superiors subjected her to sexual harassment.  In addition, A.G. told her boss that he was in a relationship with her and her family was involved in prostitution.  M.S. subsequently left her job because she felt humiliated.

In 2007, M.S. travelled to Denmark on an au pair visa.  M.S. claims that A.G. continued to harass her via telephone.  One day he told M.S. to contact her family in Pakistan.  She says that, upon contacting her family, she learned that Pakistani police had arrested her elder brother without grounds for doing so and beat him badly.

In March 2008, M.S. returned to Pakistan to care for her ill mother.  M.S. met her husband during this time and they married, despite threats from A.G.  M.S. claims that A.G. and his friends broke into her home several months later, verbally abused her and threatened her with imprisonment.  In October 2008, M.S. claims Pakistani police arrested her husband and younger brother, based on false allegations made by A.G.  They spent a week in prison, where they were ill treated, before relatives paid a bribe to secure their release.  M.S. claims that A.G. continued to harass her throughout this period and threatened to kidnap her newly born daughter from hospital.

In 2009, M.S. and her family travelled to Denmark on tourist visas.  After arriving in Denmark, they sought asylum, claiming that they feared persecution by A.G., life-threatening sexual assaults, and the murder of M.S.’s husband in connection with the false accusations brought against him by the authorities.  They also claimed they were not safe in Pakistan because A.G. belonged to a high-ranking family and his brother was a high-ranking police officer. 

In 2009, the Immigration Service rejected the asylum application.  In 2012, the Refugee Appeals Board upheld the decision of the Immigration Service and rejected their asylum application.  The Board found that A.G. had sexually harassed M.S and A.G., his brother and the local police had abused M.S. and her family over a number of years.  However, it concluded that it was reasonable for M.S. and her family to take up residence elsewhere in Pakistan, where they would be safe from A.G.  It further concluded that it had not been established that M.S. and her family had been subjected to religious persecution.  It subsequently ordered that M.S. and her family be deported to Pakistan.

In March 2012, M.S. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) on behalf of herself, her husband and their two minor children.  M.S. alleged that deporting her and her family to Pakistan would constitute a violation by Denmark of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), specifically articles 1, 2, 3, 5, 12 and 16, read in conjunction with General Recommendation No. 19.  M.S. claimed that there was a risk that, if deported to Pakistan, she would be subjected to sexual harassment by A.G.  She further claimed that Pakistan authorities were unable to provide effective protection to her and her family against such harassment.   

Acting in accordance with article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol), the CEDAW Committee granted interim measures and asked the State Party to refrain from deporting M.S. and her family while it considered her communication.   

State Party’s observations on admissibility 

The State Party challenged the admissibility of the communication on several grounds.

Incompatibility / extraterritoriality (arts. 2, 4(2)(b))

The State Party claimed that the communication was incompatible with CEDAW and should be declared inadmissible ratione loci and ratione materiae under 4(2)(b), read together with article 2, of the Optional Protocol.  More specifically, it claimed M.S. sought to apply CEDAW in an extraterritorial manner and that, while the alleged violations may be imputable to Pakistan, they are not imputable to Denmark because no Danish authority had discriminated against M.S. and her family. 

While the State Party accepted that M.S. and her family were residing temporarily in Denmark, the State Party asserted that “their claims rest not on any treatment that they will suffer in Denmark, or in an area where Danish authorities are in effective control or as a result of the conduct of Danish authorities, but rather on consequences that they may suffer if they are returned to Pakistan.”  The State Party rejected M.S.’s claim that its decision to deport her and her family to a place where they will allegedly suffer discriminatory treatment engaged its legal responsibility under CEDAW.  In doing so, it argued that “the return of women who arrive in Denmark simply to escape from discriminatory treatment in their own country, however objectionable that treatment may seem, cannot constitute a violation of the Convention.”  “States parties,” it said, “cannot be obliged under the Convention to return aliens only to countries whose legal systems are compatible with the principle of non-discrimination enshrined in the Convention.”

Absence of legal standing (art. 2)

The State Party claimed that the communication should be declared inadmissible in relation to M.S.’s husband and son because they lacked legal standing under article 2 of the Optional Protocol.  It submitted that they could not claim to be victims under CEDAW because they are male: “[w]hile the term ‘women’ is not clearly defined in the Convention, it is clear that adult males and boys cannot be regarded as women and, as a consequence, cannot be considered victims of a violation of the Convention.”  

Failure to substantiate claim (art. 4(2)(c))     

The State Party further claimed that the communication should be declared inadmissible under article 4(2)(c) of the Optional Protocol because M.S. had failed to substantiate her claim sufficiently.  It asserted that M.S. had not clearly identified or explained the rights under CEDAW on which she relied, but had instead simply listed several articles of the treaty.  It further asserted that it was unclear which violations M.S. claimed would occur if deported to Pakistan and that she had failed to substantiate her claim that her rights would be violated if so deported.

CEDAW Committee’s decision on admissibility

The CEDAW Committee declared the communication inadmissible under article 4(2)(c) of the Optional Protocol on the basis that M.S. had failed to “sufficiently substantiate, for the purposes of admissibility, her claim that her removal to Pakistan would expose her to a real, personal and foreseeable risk of serious forms of gender-based violence.” The CEDAW Committee also concluded that the sexual harassment alleged by M.S. was of a “sporadic nature” and, as such, did not constitute systematic harassment amounting to gender-based violence.

The Committee did not make any determinations in respect of the remaining grounds of inadmissibility raised by the State Party.  It did, however refer to its views in M.N.N. v. Denmark concerning the extraterritorial application of CEDAW.

Communication No. 40/2012, UN Doc. CEDAW/C/55/D/40/2012 (2013)