COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS

Transcription

1 CONSEIL DE L EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no /06 by Albert GRIGORIAN and Others against Sweden The European Court of Human Rights (Third Section), sitting on 5 July 2007 as a Chamber composed of: Mr C. BÎRSAN, President, Mrs E. FURA-SANDSTRÖM, Mrs A. GYULUMYAN, Mr E. MYJER, Mr DAVID THÓR BJÖRGVINSSON, Mrs I. ZIEMELE, Mrs I. BERRO-LEFÈVRE, judges, and Mr S. QUESADA, Section Registrar, Having regard to the above application lodged on 4 May 2006, Having regard to the decision to apply Article 29 3 of the Convention and examine the admissibility and merits of the case together, Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having regard to the Armenian and Azerbaijani Governments tacit wish not to exercise their right under Article 36 1 of the Convention to intervene in the proceedings, Having deliberated, decides as follows:

2 2 GRIGORIAN AND OTHERS v. SWEDEN DECISION THE FACTS The first applicant, Mr Albert Grigorian, is an Armenian national born in The second applicant, Ms Irade Babajeva, is an Azerbaijani national born in The third applicant, Ms Viktoria Grigorian, their daughter, was born in They were represented before the Court by Ms Noémi Lindgren, a lawyer practising in Stockholm. The Swedish Government ( the Government ) were represented by their Agent, Mr C.H. Ehrenkrona, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The second applicant arrived in Sweden and applied for asylum on 28 May The first applicant arrived in Sweden and applied for asylum on 23 August The couple met there and moved in with each other on 18 March On 3 December 2004 their daughter was born. On 21 December 2004 the Migration Board (Migrationsverket) rejected their applications and ordered that they be deported to their respective native countries. The Board noted that the first applicant had not submitted any proof of identity. With respect to the first and second applicants reasons for seeking asylum, the Board found that, under the provisions of the Aliens Act (Utlänningslagen, 1989:529), they were neither to be regarded as refugees or otherwise in need of protection nor entitled to residence permits on humanitarian grounds. As regards the second applicant, who had claimed to risk persecution not only in her native country but also in Armenia, the Board considered that her submissions with regard to the latter country were unfounded. In this connection, it noted that her mother is of Armenian origin. The Board further held that, as the first and second applicants were not married, their daughter should be considered as having the same nationality as her mother and follow her to Azerbaijan. In view of the daughter s young age and the limited time she had spent in Sweden, the move to Azerbaijan could not be against her best interests. Moreover, the deportation would not be contrary to the principle of family unity under the UN Convention on the Rights of the Child, as the first and second applicants could reunite in the country of their choice after deportation. By a decision of 5 December 2005, the Aliens Appeals Board (Utlänningsnämnden) rejected the applicants appeal, agreeing with the reasoning given by the Migration Board. It added that the applicants deportation would not violate their right to respect for their family life under Article 8 of the Convention, as they would be able to unite in either of their native countries. Issues of a formal or practical nature that might arise were to be handled by the responsible authority, in the first place the Migration Board. The Appeals Board concluded that the second and third applicants could be deported to both Azerbaijan and Armenia.

3 GRIGORIAN AND OTHERS v. SWEDEN DECISION 3 On 5 April 2006 the Migration Board reviewed the applicants situation under chapter 2, section 5 b of the Aliens Act, a new temporary provision aimed at extending the right to residence permits for certain groups, including families with children, who had, inter alia, resided in Sweden for long periods of time. The applicants submitted that the second applicant was pregnant with a second child and was expected to give birth in October The Board found, however, that they were not entitled to residence permits under the temporary legislation. According to the applicants, they were later informed that the Migration Board planned to enforce the deportation orders by sending them to different countries, the first applicant to Armenia and the second and third applicants to Azerbaijan. On 10 May 2006, following the Court s indication under Rule 39 of the Rules of Court, the Migration Board decided to stay the enforcement of the applicants deportation until further notice. On 31 August 2006 the applicants lodged a new application with the Migration Board, claiming that there were permanent impediments to their deportation and that they should be given residence permits. In substance, they argued that their deportation to different countries involved a violation of Article 8 of the Convention. Subsequently, the applicants submitted a medical opinion on the daughter s mental health, given by a certified psychologist and a child psychiatrist on 12 January They noted that the second applicant suffered from depressions and that the overall situation was dominated by stress caused by the family s insecure future. The daughter showed a serious resignation syndrome, which required qualified, immediate and long-term treatment. On 17 November 2006 the second applicant gave birth to a second daughter. An application for a residence permit for her was submitted to the Migration Board. On 16 March 2007 the Migration Board rejected the applicants new application, stating that the possible deportation to different countries was not a new circumstance and could not therefore be considered. In regard to the mental health of the third applicant, the eldest daughter, as well as the second applicant s depression, the Board concluded that they did not constitute medical impediments to the deportation. No appeal lay against this decision. The application concerning the youngest daughter has not yet been determined.

4 4 GRIGORIAN AND OTHERS v. SWEDEN DECISION COMPLAINT The applicants complained under Article 8 of the Convention that their deportation to different countries would split up the family for an uncertain length of time which, in view of the politically strained relationship between Armenia and Azerbaijan, could turn out to be indefinite. Further referring to the mental health status of the second and third applicants, they stressed, in particular, that the first applicant needed to help in the care of the daughters and give the second applicant support. However, the applicants did not object to being deported together to a country where they would be given permanent residence. THE LAW The applicants claimed that their right to respect for their family life would be violated if the deportation order against them were executed. They relied on Article 8 of the Convention which reads as follows: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The respondent Government submitted that the application should be declared inadmissible as being manifestly ill-founded. They argued that the first and second applicants had moved in with each other and had children without having the necessary residence permits in Sweden. Thus, as there was no unconditional right for asylum-seekers under Article 8 to determine where to settle down and establish family life, they had themselves created a situation in which it was up to them to undertake all efforts to make it possible for them to return to one of their native countries. However, the first applicant, who had arrived in Sweden without any identification documents, had chosen not to make efforts to obtain such documents, although he had had the opportunity during the asylum proceedings to contact relatives in Armenia or the Armenian embassy in London. The applicants had themselves stated that it had been difficult or impossible for them to marry due to this inability to present identification documents. All three applicants had to be considered as having strong links to Armenia, as the first applicant was the father of the third applicant. According to chapter III, paragraph 20 of the 1994 Armenian Act on the Legal Status of Aliens, an ordinary residence permit could be granted to an immediate relative

5 GRIGORIAN AND OTHERS v. SWEDEN DECISION 5 (inter alia, spouse or child) of a citizen of Armenia. Hence, if the first and second applicants entered into marriage, it should be possible for the whole family to settle down in Armenia and maintain their family life there. In any event, it should be possible for the applicants to reunite in that country after a potential deportation to different destinations. In the Government s view, it was the responsibility of primarily the first applicant but also the second applicant to make it possible for the family to be sent to or at least reunite in Armenia or Azerbaijan. The Government concluded therefore that the Swedish authorities had not failed to fulfil their obligation to strike a fair balance between the relevant interests. The applicants maintained that the first applicant s passport had been destroyed by a fire prior to his arrival in Sweden and that they did not have any possibility to further prove their identities. Referring to a report of the Swedish Ministry for Foreign Affairs, they further claimed that, if deported to Armenia, the second applicant would risk discrimination on account of her Azeri origin. They doubted that she and the children would be benevolently granted residence permits in that country. Finally, they invoked the mental health of the third applicant and her need of long-term professional treatment. The Court reiterates that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. The Contracting States have the right, as a matter of well-established rules of international law, including treaty obligations, in particular the Convention, to control the entry, residence or deportation of aliens. Nevertheless, the deportation of persons from a country may amount to an infringement of the right to respect for family life guaranteed by Article 8 1 of the Convention. The essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective respect for family life. However, the boundaries between the State s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Gül v. Switzerland, judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, p. 174, 38; and Ahmut v. the Netherlands, judgment of 28 November 1996, Reports 1996-VI, p. 2031, 63). The Court is satisfied that the decision to deport the applicants was in accordance with Swedish law and pursued a legitimate aim, notably the economic well-being of the country. Accordingly, leaving aside the question whether the deportation of the applicants would lead to a de facto interference with their family life, the Court will examine whether the

6 6 GRIGORIAN AND OTHERS v. SWEDEN DECISION deportation order was necessary in a democratic society within the meaning of Article 8 2. In this respect, the Court notes that the first two applicants are of different nationality. If deported to their native countries, they would accordingly be separated from each other and one of them would be separated from the children, at least for some time. However, there is nothing in the Swedish authorities decisions which would prevent their deportation to the same country, either Armenia or Azerbaijan. It is true that this would require certain action on the part of the applicants, including the procurement of identity documents for the first applicant and, presumably, the marriage between the first and second applicants and the registration of paternity in relation to the children. It cannot be considered unreasonable to require the applicants to take these steps in order to facilitate their deportation to a common country where they would be able to continue to enjoy family life. This requirement is even more pertinent in a case such as the present one, where the first and second applicants met and established family life after their arrival in Sweden, that is, at a time when they had no right to reside in the country. In any event, the Swedish authorities cannot be held responsible if the deportation to a common country is impossible due to the applicants own failure to take reasonable action. As regards the mental health of the third applicant, it appears that her problems have been caused by the insecure situation in which she and her parents find themselves and the fear that the family members will be split up at the time of their deportation. Noting that the applicants have not complained of a violation of Article 3 of the Convention, the Court finds that the deportation would not involve a breach by the Swedish authorities of her rights under the Convention. In so finding, the Court has regard to its above finding that, with reasonable efforts undertaken by the first and second applicants, the family will likely be admitted to the same country. Finally, the applicants have stated that the second applicant and the children would risk ill-treatment in Armenia. Reiterating that the applicants have not invoked Article 3, the Court notes that they face deportation to either Armenia or Azerbaijan, which are both State Parties to the Convention. It should be noted as well that the second applicant s mother is of Armenian origin. Moreover, it has not been demonstrated that, if deported to Armenia, the second applicant, or her children, would be exposed to a real and personal risk of treatment attaining the severity required to fall under Article 3. Having regard to the above, the Court finds that the Swedish authorities, in ordering the applicants deportation, have not failed in their obligation to respect the applicants family life. Accordingly, the enforcement of that order would not involve a breach of Article 8 of the Convention. It follows that the application is manifestly ill-founded pursuant to Article 35 3 of the Convention.

7 GRIGORIAN AND OTHERS v. SWEDEN DECISION 7 In view of the above, it is appropriate to discontinue the application of Article 29 3 of the Convention and Rule 39 of the Rules of Court and to reject the application. For these reasons, the Court unanimously Declares the application inadmissible. Santiago QUESADA Registrar Corneliu BÎRSAN President