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

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1 CONSEIL DE L EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no /97 by Seljvije DELJIJAJ against Germany The European Court of Human Rights (Fourth Section), sitting on 8 February 2001 as a Chamber composed of Mr A. PASTOR RIDRUEJO, President, Mr G. RESS, Mr J. MAKARCZYK, Mr V. BUTKEVYCH, Mr N. VAJIĆ, Mr J. HEDIGAN, Mrs S. BOTOUCHAROVA, judges, and Mr V. BERGER, Section Registrar, Having regard to the above application introduced with the European Commission of Human Rights on 19 December 1996 and registered on 25 March 1997, Having regard to Article 5 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:

2 2 DELJIJAJ v. AUSTRIA DECISION THE FACTS The applicant is a citizen of the Federal Republic of Yugoslavia, belonging to the Muslim Kosovo-Albanian community. She was born in 1976 in Rezalle and is living in Regensburg. She is represented before the Court by Mr Franz Auer, a lawyer practising in Regensburg. The respondent Government were represented by their Agents, Mrs H. Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice, at the initial stage of the proceedings, and subsequently by Mr K. Stoltenberg, Ministerialdirigent, also of the Federal Ministry of Justice. A. The circumstances of the case On 20 November 1994 the applicant left her country in the company of her mother and her five brothers and sisters, born in 1974, 1979, 1981, 1982 and 1984, respectively. They arrived in the Federal Republic of Germany on 25 November 1994 and applied for political asylum. When interviewed on 30 November 1994 before the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), the applicant stated that, although she had encountered no particular problems with the police or other public authorities, she had left her country with her mother with a view to joining her father who on 17 June 1993 was granted political refugee status in Germany. She did not wish to be left on her own in Yugoslavia. On 12 April 1995 the Federal Office for Refugees granted the applicant's mother and her four minor brothers and sisters asylum. Her sister of full age was granted a residence permit on account of her marriage in Germany. In a separate decision of the same date, the Federal Office for Refugees refused the applicant's request for asylum and requested her to leave the Federal Republic of Germany within a month's time. The Federal Office found that the applicant had not established a real risk of persecution, if she were to return to her country. The Federal Office added that it could not consider humanitarian or personal grounds or questions arising in connection with Article 6 of the Basic Law (Grundgesetz) protecting marriage and family life, the exclusive competence in dealing with these matters being with the authorities in charge of matters concerning aliens (Ausländerbehörde). On 25 April 1995 the applicant lodged an appeal against this decision. She submitted that her father had been granted the status of political refugee. It would be unsafe for her to return to Yugoslavia having regard to the established political persecution of her father. She had left her country because as a member of the Albanian community in Kosovo she was subjected to group persecution. Moreover, her expulsion would be in breach

3 DELJIJAJ v. AUSTRIA DECISION 3 of her right to respect for her family life as guaranteed by Article 8 of the Convention. On 12 January 1996 the Regensburg Administrative Court (Bayerisches Verwaltungsgericht Regensburg) dismissed the appeal. The Administrative Court found that the Kosovo Albanians were not a persecuted group and that the applicant had not established a real and substantial fear of persecution in Yugoslavia. Furthermore, a decision rejecting the application for asylum would not, in the court's view, violate Article 8 of the Convention. Under the relevant rules of the Aliens Act (Ausländergesetz), the applicant could not be granted family asylum since, at the time of introducing her request for asylum, the applicant was more than 18 years old and therefore did not qualify for admission as a dependent child. It was not contrary to the concept of the protection of family life to refuse children, who had reached the age of majority, the right to stay with their relatives in Germany, unless specific circumstances justified an exception to the 18-year age limit. According to the Administrative Court, the applicant had not established the existence of any such circumstances and in particular had not shown that she was in any way dependent on her family in Germany. The Administrative Court noted also that the applicant's uncle lived in Kosovo and that she seemed to be on good terms with him. The applicant's understandable wish to stay with her family in Germany did not constitute a legal obstacle to her intended expulsion. Finally, the Administrative Court pointed out that the administrative authorities in charge of matters concerning aliens could suspend the intended expulsion for humanitarian or personal reasons and issue the applicant a provisional residence permit (Duldung). By a judgment of 18 November 1996 the Bavarian Court of Appeal (Bayerischer Verwaltungsgerichtshof) refused to grant the applicant leave to appeal and dismissed her request for legal aid on the ground that her appeal had no sufficient prospects of success. In June 1998 the applicant thereupon applied with the Regensburg District Authority (Landratsamt) for a decision that the intended expulsion be prohibited under Section 53(4) of the Aliens Act, taken together with Article 8 of the Convention. In ensuing correspondence with the applicant s representative, the District Authority, in a letter dated 3 September 1998, stated that the applicant had meanwhile been granted a provisional residence permit on account of the critical situation in Kosovo. Having regard to the applicant s petition with the European Commission of Human Rights, no decision would be taken as long as these proceedings were pending. Since 23 February 2000 the applicant s provisional residence permit has not been prolonged. She has been ordered to leave the territory of the Federal Republic of Germany and she has been issued travel documents.

4 4 DELJIJAJ v. AUSTRIA DECISION The time-limit for leaving Germany voluntarily has been regularly prolonged. On 1 July 2000 the applicant s son A. was born out of wedlock. The child s natural father is the applicant s fiancé, who had been granted the status of a recognised refugee and, according to the applicant, does not possess the papers necessary for their marriage. B. Relevant domestic law Persons entitled to asylum (Article 16a(1) of the Basic Law) enjoy legal status pursuant to the Geneva Convention on Refugees and are issued with an unlimited residence permit (section 68 of the Asylum Procedure Act). Section 51 of the Aliens Act prohibits the deportation of aliens to a State where they would face political persecution. Aliens granted protection against deportation under this provision enjoy legal status under the Geneva Convention but are merely issued with limited residence for exceptional purposes. If an asylum claim for protection against political persecution does not meet the necessary requirements under Article 16a(1) of the Basic Law or section 51(1) of the Aliens Act, the Federal Office is obliged to examine whether an applicant faces a serious risk of treatment contrary to Article 3 of the Convention if he were returned. Section 53(4) of the Aliens Act prohibits expulsion in such circumstances. If the preconditions for the application of section 53(4) are not met, protection may be granted under section 53(6) of the Aliens Act, which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life, personal integrity or liberty of an alien. Persons afforded protection under this provision are granted temporary permission to remain for periods of three months, renewable by the authorities. The administrative authorities in charge of matters concerning aliens have to examine under Section 55 whether an expulsion has to be suspended for legal or factual reasons or for humanitarian or personal reasons. COMPLAINT The applicant complains that her expulsion would result in a permanent separation from her parents and her five brothers and sisters, with whom she has lived all her life, and constitute an unjustifiable interference with her right to respect for her family life as protected by Article 8 1 of the Convention. The applicant submits that, if returned, she would be left on her own as her uncle, the only member of her family remaining in her home country, is not willing and able to take care of her.

5 DELJIJAJ v. AUSTRIA DECISION 5 THE LAW The applicant complains that her removal from Germany would separate her from the members of her family who have the right to reside in Germany. She relies on Article 8 of the Convention which, insofar as relevant, reads as follows: 1. Everyone has the right to respect for his... family life 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 applicant stresses that she is a young Muslim woman belonging to the Albanian community which is subjected to persecution by the Serb majority. Moreover, taking into account the specific situation of women in Muslim society, the separation from her family would leave her without subsistence. The applicant further points out that mutual visits would not be possible after her departure from Germany. Her intended expulsion would therefore interfere with her effective family life within the meaning of Article 8 1 of the Convention. This interference was not justified under paragraph 2 of this provision. The applicant finally submits that she has not lodged a constitutional appeal for lack of prospects of success. According to the established jurisprudence of the Federal Constitutional Court (Bundesverfassungsgericht) in immigration cases, the right to the protection of family life does not extend to the relationship between adult children and their family. The Government state that the applicant should have lodged a constitutional complaint with the Federal Constitutional Court. In any event, no final decision had been rendered on the question whether or not the applicant s expulsion was prohibited under Section 53 of the Aliens Act. In the Court s view, it need not examine whether the applicant has complied with the requirements under Article 35 1 of the Convention as to the exhaustion of domestic remedies, as the application is in any event inadmissible for the following reasons. The Court recalls that Contracting States have the right, as a matter of well-established international law and subject to their obligations under international treaties including the Convention, to control the entry, residence and expulsion of aliens (see the Vilvarajah and others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, 102). However, the expulsion of a person from a country where his or her close relatives reside or have the right to reside may amount to an infringement of the right to respect for family life guaranteed in Article 8 1 (see the Moustaquim v. Belgium judgment of 18 February 1991, Series

6 6 DELJIJAJ v. AUSTRIA DECISION A no. 193, p. 18, 36). On the other hand, Article 8 does not guarantee a right to choose the most suitable place to develop family life (see the Ahmut v. the Netherlands judgment of 28 November 1996, Reports 1996-VI, p. 2033, 67 and 71). In examining cases of the present kind, the Court's first task is to consider whether a sufficient link exists between the relatives concerned as to give rise to the protection of Article 8 of the Convention. In immigration cases, relationships between a parent and an adult child would not necessarily attract the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties (see no /96, Dec , and no /99, Dec ; Eur. Commission HR, no.10375/83, decision of 10 December 1984, D.R. 40, p. 196). The Government submit that since, according to her own statements, the applicant is still living closely together with her parents and her brothers and sisters, who are minor, there is family life within the meaning of Article 8 1 of the Convention. They consider that her expulsion could be regarded as interference with this right. However, this measure would be in accordance with the German Aliens Act and necessary to protect German public order. In particular, the applicant, considering her age, failed to show that she could not live in her home country, possibly with her family s financial support. The Court notes that the applicant will be 25 years of age in March 2001 and only one of her brothers and sisters has not yet reached the age of majority. Moreover, according to her representative s submissions, she has been engaged to a Yugoslavian national since 1999 and they have not married on account of administrative difficulties. In July 2000 their child was born out of wedlock. In this situation, the question arises whether the relationship between the applicant and the members of her parental family is protected under Article 8 1. In any event, the Court finds that the applicant s expulsion is currently not enforced. The German administrative authorities in charge of aliens have not yet decided whether her expulsion is prohibited for humanitarian or personal reasons. In this respect, the applicant will have to raise any issues under Article 8 1 of the Convention regarding the changes in her living conditions, in particular the birth of her child. In these circumstances and bearing in mind the political changes in Kosovo and the Federal Republic of Yugoslavia, the Court does not find it established that the applicant s expulsion would amount to a violation of Article 8 of the Convention, nor is there any indication that her expulsion would be contrary to any other provision of the Convention or its Protocols It follows that the application is manifestly ill-founded within the meaning of Article 35 3 of the Convention.

7 DELJIJAJ v. AUSTRIA DECISION 7 For these reasons, the Court unanimously Declares the application inadmissible. Vincent BERGER Registrar Antonio PASTOR RIDRUEJO President