Family reunification rights
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Domestic Law 31. Articles 43, 47, 51 (2), 62 (a) and 96 of the Foreign Nationals Act of 16 December 2005, as in force at the relevant time, read as follows: Art. 43 Spouses and children of persons with a permanent residence permit « 1. The foreign spouse and unmarried children under 18 of a person with a permanent residence permit who live with that person are entitled to be granted a residence permit and to have their residence permit extended. 2. After a law-abiding and uninterrupted residency of five years, spouses are entitled to be granted a permanent residence permit. 3. Children under twelve are entitled to be granted a permanent residence permit. » Art. 47 Time limit for family reunification « 1. The right to family reunification must be exercised within five years. Children over twelve must be reunified with their family within twelve months. 2. [ ... ]. 3. The time limits for family members of: a. [ ... ]; b. foreign nationals begin with the granting of a residence or permanent residence permit or with the constitution of the family relationship. 4. A subsequent family reunification shall be authorised only if there are important family reasons therefor. If necessary, the views of children over 14 on family reunification shall be heard. » Art. 51 Expiry of the right to family reunification « [ ... ] 2. The rights in terms of Articles 43, 48 and 50 expire if: a. they are exercised in abuse of the law, in particular to circumvent the regulations of this Act and of its implementing provisions on admission and residency; b. there are grounds for revocation in terms of Article 62. » Art. 62 Revocation of permits and other rulings « The competent authority may revoke permits, with the exception of the permanent residence permit, and other rulings under this Act if the foreign national: a. or their representative in the permit procedure makes false statements or conceals material facts; b. [ ... ]. » Art. 96 Exercise of discretion « 1. In exercising discretion, the competent authorities shall take account of public interests and personal circumstances, as well as the degree of the integration of foreign nationals. [ ... ]. » 32. Article 75 of the Federal Ordinance “Admission, Residence and Exercise of a Lucrative Activity ” of 24 October 2007 (L ’ Ordonnance relative à l ’ Admission, au Séjour et à l ’ Exercise d ’ une Activité lucrative ), as in force at the relevant time, reads as follows: Article 75 « Important family reasons as set out in Article 47(4) of the Foreign Nationals Act and [ ... ] may be cited if the best interest of the child can only be guaranteed through family reunification in Switzerland. » B. International Law 33. The relevant provisions of the United Nations Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Switzerland on 26 March 1997, read as follows: Preamble « The States Parties to the present Convention, [ ... ] Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, [ ... ] Have agreed as follows: [ ... ]. » Article 3 « 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. [ ... ]. » Article 8 « 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference [ ... ]. » Article 9 « 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will [ ... ]. [ ... ]. » Article 10 « 1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. [ ... ]. » THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 34. The applicants complained that the refusal of the Swiss authorities to grant their three children, R., L. and B., residence permits on the ground of family reunification in Switzerland and the decision to expel them to their home country was in breach of Article 8, which provides : “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.” 35. The Government contested that argument. A. Admissibility 36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions a. The applicants 37. The applicants claimed that the Swiss authorities had not complied with their obligations, inherent in Article 8 of the Convention, to allow R., L. and B. to reside legally in Switzerland, thereby enabling them to enjoy family life in that country. They submitted that their interest in their children being allowed to reside in Switzerland outweighed those of the respondent State in refusing that permission. They insisted that the three children, who had been living in Switzerland illegally since 15 August 2009, were well integrated in the respondent State and especially in the school system. Therefore, no public interest of the respondent State would justify the refusal of residence permits for the children. 38. With respect to the question of whether the refusal of the residence permits for the children was proportionate under Article 8 of the Convention, they reiterated the arguments made before the domestic authorities. In particular, they claimed that the children should be allowed to continue their life with their immediate family in Switzerland and that it would be difficult to maintain a family life at a distance. They argued that expulsion would lead to separation from the applicants, their parents, and their little brother E., and to their being to a significant extent uprooted from the environment the children had been living in for the last three years. They further held that important family reasons for a family reunification did indeed exist : B. and L. were enrolled in school in Switzerland and R. still depended not only emotionally but also financially on the applicants because, despite having obtained a school certificate, he had been denied access to a professional apprenticeship as he was an illegal resident in Switzerland. 39. The applicants also claimed that the Swiss authorities had disregarded completely the situation to which the three children would be exposed if sent back to Kosovo. Even if they were still socially and culturally attached to their home country, which the applicants contested, they disputed that there was any proof that the children ’ s grandmother or other relatives would be able to care for them. They explained that the grandmother only temporarily took care of the children between 2007 and 2009 on condition that they would join the applicants in Switzerland as soon as the second applicant had obtained residence permits for them. Therefore, in the event of expulsion to their country of origin, the children would be at risk of spending their lives in an orphanage. This would be contrary to the children ’ s best interests and in violation of their rights under Article 3(1), 8 (1), 9(1) and 10(1) of the United Nations Convention on the Rights of the Child (see above § 33 ). b. The Government 40. While the Government accepted that a family life within the meaning of Article 8(1) of the Convention existed between the applicants and their children L. and B., they disputed the existence of such a family life between the applicants and R. They argued that the latter, born in 1994, had reached the age of majority in the meantime and, aside from “normal affective ties with his parents ”, the applicants had not given any other reasons for being especially dependent on them. 41. The Government further held that the refusal of the residence permits for the three children on the ground of family reunification was proportionate under Article 8 of the Convention and in accordance with their right to control the entry of non-nationals into their territory. The Government reiterated that the applicants had deliberately concealed the existence of their three children when they entered Switzerland. The Swiss authorities had learned of their existence only on 4 December 2007. Furthermore, the applicants had not only concealed the existence of their three children but they had also brought them to Switzerland illegally. Instead of appealing against the decision of 28 April 2009, which had become final, they had presented the domestic authorities with a fait accompli. The Government thus maintained that in view of the applicants ’ wrongful conduct, the public interests of Switzerland outweighed their private interest in being reunited on its territory. 42. The Government further reasoned that it could not be concluded from the applicants ’ conduct that they had always wanted to be reunited with their children in Switzerland ( a contrario, Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 45, 1 December 2005 ). Their second application for family reunification had only been made on 1 June 2010 which was, according to the domestic law, outside the time ‑ limit in respect of R. and L. Furthermore, the applicants had not given any important family reason for a family reunification. The Government considered it as not established that the children ’ s grandmother or other relative in Kosovo could not take care of them, a fortiori because the two older siblings were of an age at which they could, at least in part, look after themselves. Moreover, the children had spent most of their life in Kosovo and had gone to school there. 43. The Government further maintained that Article 8 of the Convention did not impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory. The Government stated that it had been the applicants who had left their children behind in their home country. Furthermore, the grounds on which the first applicant had applied for asylum in 1997 had disappeared, as was illustrated by his frequent journeys to Kosovo even before 2007. Under those circumstances it could not be concluded that the issuing of residence permits for the three children in Switzerland was the only way to reunite the applicants ’ family. 44. The Government concluded that with consideration to the age of the children, their degree of dependency on the applicants, and their social integration in Switzerland and in Kosovo, as well as to the conduct of the applicants, the domestic authorities had not overstepped the margin of appreciation they had under Article 8 of the Convention. 2. The Court ’ s assessment a) The existence of a family life according to Article 8 of the Convention 45. The Court notes that the parties agreed that there was a family life within the meaning of Article 8(1) of the Convention between the applicants and their daughters L. and B. In contrast, the Government disputed that a family life as set out in Article 8 of the Convention still existed between the applicants and their older son R. With reference to the case-law of the Court they argued that the relationship between R., who had reached the age of majority during the proceedings before this Court, and his parents did not fall within the protective scope of Article 8 because no “[ ... ] additional factors of dependence, other than normal emotional ties” had been established ( see Emonet and Others v. Switzerland, no. 39051/03, § 35, 13 December 2007 ). The applicants argued in opposition to this that R. was indeed still dependent on them, because as an illegal resident in Switzerland he was excluded from the labour market and was in need of their financial support. 46. The Court considers that when deciding whether a relationship can be said to amount to “family life”, a number of factors may be relevant ( see Emonet and Others, cited above, § 35 ). In view of the following considerations (infra §§ 59-62 ), the issue of whether the applicants ’ relationship with R. still falls under the protection of Article 8 of the Convention may be left open. b) Scope of the obligation under Article 8 of the Convention i) General principles 47. The Court considers that the present case hinges on the question whether the authorities of the respondent State has the duty to allow R., L. and B. to reside legally on its territory with their parents and their younger brother, and thus should not expel them to their country of origin and should allow them to develop family life in Switzerland. 48. The Court notes that 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 Ahmut v. the Netherlands, 2 8 November 1996, § 63, Reports of Judgments and Decisions 1996 ‑ VI ). 49. In order to establish the scope of the State ’ s obligations, the Court must examine the facts of the case in the light of the applicable principles, which it has previously set out as follows (see Gül v. Switzerland, 19 February 1996, § 38, Reports 1996 ‑ I, and Ahmut, cited above, § 67 ): (a) the extent of a State ’ s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest; (b) as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory; (c) where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunification in its territory. 50. In this context it must be borne in mind that cases like the present one do not only concern immigration, but also family life, and that it involves aliens - the applicants - who already had a family life which they left behind in another country until they achieved settled status in the host country (contrast Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 68, Series A no. 94 ). In its assessment, the Court must therefore determine whether, in refusing to issue residence permits for the family members, the Government can be said to have struck a fair balance between the applicants ’ interest in developing a family life in the respondent State on the one hand and the State ’ s own interest in controlling immigration on the other. 51. The Court has further held that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010 ). For that purpose, in cases regarding family reunification the Court pays particular attention to the circumstances of the minor children concerned, especially their age, their situation in their country of origin and the extent to which they are dependent on their parents (see Tuquabo-Tekle, cited above, § 44). ii) Application of the principles in the present case 52. Firstly, the Court notes that the applicants did not appeal against the first decision of the Migration Office, delivered on 28 April 2009, which refused them the right to family reunification with their three children on Swiss territory. That decision became final. With respect to that decision the applicants have not exhausted domestic remedies. For the assessment of the present case, the Court is therefore bound by the facts that led to the present application, which originated in the applicants ’ second request for family reunification to the Migration Office on 1 June 2010. 53. The Court notes that the Government have not disputed that the applicants made efforts to obtain residence permits for their three children in Switzerland. As they did not appeal against the first negative decision of the Migration Office, the Government however argued that it had taken the applicants quite a while to apply again for family reunification and that the second application had been outside the time - limit in domestic law. Therefore, in the Government ’ s view, it could be doubted whether it had always been the applicants ’ real intention to be reunited with their children in Switzerland. 54. The Court has previously held that parents who leave children behind while they settle abroad cannot be assumed to have irrevocably decided that those children are to remain in the country of origin permanently and to have abandoned any idea of a future family reunification ( see Sen v. the Netherlands, no. 31465/96, § 40, 21 December 2001 ). Contrary to the Government ’ s contentions, it appears clear to the Court that in the present case the applicants had always intended that their three children should join them in Switzerland once the second applicant had settled there. The second applicant applied for family reunification only three months after obtaining a residence permit herself. While the question why the applicants did not appeal against the first negative decision of the Migration Office remains open, that question does not allow the conclusion that they abandoned the idea of family reunification at that time. To enable them to live with their children despite all this, they subsequently brought them illegally to Switzerland and applied again for residence permits for them. 55. As regards the question of to what extent it is true that the three children ’ s settling in Switzerland would be the most appropriate means for the applicants to develop family life together, the Court observes that the facts of the present application have to be compared to similar cases in which it has had to evaluate whether the domestic authorities breached Article 8 of the Convention in refusing to issue residence permits on the ground of family reunification. 56. The Court has previously rejected cases involving failed applications for family reunification and complaints under Article 8 where the children concerned had in the meantime reached an age where they were presumably not as much in need of care as young children and were increasingly able to fend for themselves. In cases of this nature, the Court has also examined whether the children have grown up in the cultural and linguistic environment of their country of origin, whether they have other relatives there, and whether it could be expected that the parents would return to that country (see, for instance, Benamar v. the Netherlands (dec.), no. 43786/04, 5 April 2005; I.M. v. the Netherlands (dec.), no. 41266/98, 25 March 2003; and Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003). 57. By contrast, in Sen (cited above), which concerned parents who had left their daughter behind in the care of relatives in their home country of Turkey to settle in the Netherlands, the Court established that the applicants were facing major obstacles to a return to their home country since they had been legally resident in the Netherlands for many years; their two youngest children had been born and brought up there and were attending school. With regard to those children, who had minimal ties with their home country, and in view of the young age of the daughter who had remained in Turkey (she was nine years old when the application to the domestic authorities was made), the Court considered it more appropriate to let the daughter come to the Netherlands to be reunited with her family there. The refusal of a residence permit for the daughter had therefore been in breach of Article 8 of the Convention ( ibid. §§ 39-42). 58. Moreover, in the case of Tuquabo-Tekle and Others, (cited above, §§ 47-52), the Court found a violation of Article 8 of the Convention regarding the refusal of a residence permit on the ground of family reunification to Mrs Tuquabo-Tekle ’ s daughter, who was, at the time of the domestic application, already fifteen years old. As well as establishing that the parents were facing major obstacles to a return to their country of origin, Eritrea, the Court ruled that the particular circumstances of the daughter ’ s situation in her home country - her grandmother, who was taking care of her, had taken her out of school and she had reached an age where she could be married off - were such that she should be allowed to be reunited with her family in the Netherlands. The Court held in that case that the daughter ’ s age should not be the sole element that led to a different assessment from that arrived at in the case of Sen ( cited above), in which the daughter had been some years younger. 59. Turning to the present application, the Court notes that as, inter alia, in the case of Sen (cited above), the applicants are living where they are because of their conscious decision to settle in Switzerland rather than remain in their home country. After their marriage in 2007, the second applicant joined her husband, the first applicant, who had already been living in Switzerland for ten years and was in possession of a permanent residence permit, with the aim of establishing a family life there. Subsequently, a fourth child was born to them and the second applicant also received a permanent residence permit for Switzerland. Nevertheless, the applicants were not prevented from maintaining the degree of family life they had had for many years before 2007. After the first applicant had moved to Switzerland in 1997, he had visited the second applicant and his children regularly and had a third child with the second applicant in 2003. He had also supported them financially. 60. As regards the situation of the three children, the Court considers that, despite the applicants ’ contentions, they must still have solid social and linguistic ties to their home country, where they grew up and went to school for many years. Although the children are now also well integrated in Switzerland, the Court is of the view that their period of stay in the respondent State is not long enough for them to have completely lost their ties with their country of origin. With regard to the fact that their grandmother looked after them for more than two years and is, after all, still living there now, it must also be assumed that they have strong family ties to Kosovo. Furthermore, the applicants have not disputed that L. ’ s health has in fact improved to the extent that it would not be a hindrance for her to return to her home country, and, with regard to the alleged financial dependence of R. on the applicants, the Court cannot see why he, as well as his sister, could not be supported at a distance, especially when it is considered that they are now 19 and 17 years old respectively. Lastly, with particular regard to the youngest of the three children, B., the Court notes that the applicants are not prevented from travelling - or even staying - with her in Kosovo in order to ensure that she is provided with the necessary care and education so that her best interests as a child are safeguarded. 61. In conclusion, and also taking into account the applicants ’ conduct in the domestic proceedings, which was not irreproachable, it cannot be found that the respondent State has failed to strike a fair balance between the applicants ’ interest in family reunification on the one hand and its own interest in controlling immigration on the other. Although it may well be that the applicants would prefer to maintain and intensify their family links with the three children in Switzerland, Article 8 does not guarantee a right to choose the most suitable place to develop family life (see above, §§ 48, 49). The respondent State has therefore not overstepped the margin of appreciation it enjoys under Article 8 of the Convention. 62. It follows that no violation of Article 8 can be found on the facts of the present case. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 63. The applicants complained that expulsion of the children to their home country would be in breach of Article 3 of the Convention, because they would be separated from their immediate family and sent to their home country, where they have no one to care for them. They would probably be sent to an orphanage and would depend on social services in Kosovo. Their expulsion would therefore put them at risk of inhuman or degrading treatment contrary to Article 3 of the Convention. 64. The Court notes that, apart from the separation from their parents and youngest brother, the applicants have not given any other reasons why the children would be at risk of inhuman or degrading treatment if they were returned to their home country. The Court observes that these arguments are essentially the same as those brought forward by the applicants under Article 8 of the Convention. The Court does not find any appearance of a violation of Article 3 of the Convention. 65. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
The Court held that there had been no violation of Article 8 (right to respect of family life) of the Convention, considering in particular that the applicants were living in Switzerland because of their conscious decision to settle there rather than in Kosovo, and that their three children had not lived in Switzerland for long enough to have completely lost their ties with their country of birth, where they grew up and were educated for many years. Moreover the children still had family ties in Kosovo, the older two children, 17 and 19 years old, were of an age that they could be supported at a distance, and there was nothing to prevent the applicants traveling to, or staying with the youngest child, 10 years old, in Kosovo to safeguard her best interests as a child. Also taking into account the at times untruthful conduct of the applicants in the domestic proceedings, the Court concluded that the Swiss authorities had not overstepped their margin of appreciation under Article 8 of the Convention in refusing to grant residence permits to their children.