Regulation of marriage
II. RELEVANT DOMESTIC LAW A. Federal Act on International Private Law ( Loi fédérale sur le droit international privé ( LDIP ) du 18 décembre 1987 ) as in force in 2012 Article 17 “ The implementation of provisions of foreign law shall be excluded where the result would be incompatible with Swiss ordre public. ” Article 27 “ 1 The recognition of a foreign decision shall be rejected in Switzerland if it is manifestly incompatible with Swiss ordre public. ” Article 45 “ 1 A marriage validly celebrated abroad shall be recognised in Switzerland. ” B. Swiss Criminal Code Article 187 “ 1 Any person who engages in a sexual act with a child under 16 years of age, or incites a child to commit such an activity, or involves a child in a sexual act, is liable to a custodial sentence not exceeding five years or to a pecuniary penalty.” C. Relevant domestic law with regard to the Dublin Regulation 22. The relevant domestic law is set out in the Court ’ s judgment in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 22-23 and 26-27, 4 November 2014). 23. The relevant instruments and principles of European Union law are set out in the same judgment (§§ 28-36). 24. In particular, the Court recalls that the Dublin Regulation is applicable to Switzerland under the terms of the association agreement of 26 October 2004 between the Swiss Confederation and the European Community regarding criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (OJ L 53 of 27 February 2008). The Dublin Regulation has since been replaced by Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (the “Dublin III Regulation”), which is designed to make the Dublin system more effective and to strengthen the legal safeguards for persons subject to the Dublin procedure. 25. The Dublin III Regulation entered into force on 1 January 2014 and was passed into law by the Swiss Federal Council on 7 March 2014. THE LAW I. CHARACTERISATION OF THE APPLICANTS ’ CLAIMS 27. The applicants alleged that the expulsion of the second applicant to Italy in 2012 violated Articles 3 and 8 of the Convention. They alleged that if the second applicant were to be expelled again there would be another violation of Articles 3 and 8. Relying on Article 13 of the Convention, the applicants also claimed that they did not have an effective remedy at national level as the FAC did not take into account their family relationship when upholding the administrative decision not to examine the second applicant ’ s asylum request on the merits. 28. On 1 April 2014, in reply to the Government ’ s request to strike the application out of the list of cases following the FAC ’ s decision of 28 November 2013, the applicants submitted that their application included a complaint about a past violation, not only a prospective one, namely that on 4 September 2012 the second applicant had been expelled to Italy and thus separated from the first applicant. Such forcible separation, which had had serious consequences on the applicants ’ health, in particular the first applicant ’ s, constituted a violation of the applicants ’ rights to respect of their family life ( see paragraph 18 above). On 9 January 2015 the applicants informed the Court that they had been granted asylum in Switzerland by a decision of 17 October 2014 (see paragraph 20 above). On 23 June 2015, referring to their submissions of 1 April 2014, the applicants informed the Court that they wished to maintain their application, considering that as the alleged past violation of their right to respect for family life had neither been acknowledged nor remedied they had not lost victim status even if they had now obtained asylum in Switzerland ( see paragraph 21 above). 29. In the light of this information, the Court considers that the applicants only wished to maintain their application with regard to the alleged past violation of Article 8 relating to the expulsion of the second applicant to Italy on 4 September 2012, which included their initial claims under Article 3, and did not wish to pursue the remaining part. The Court also finds no reasons of a general character, affecting respect for human rights, as defined in the Convention, which require the further examination of the remaining part of the application by virtue of Article 37 § 1 of the Convention in fine (see, for example, Chojak v. Poland, no. 32220/96, Commission decision of 23 April 1998, unreported; Singh and Others v. the United Kingdom (dec.), no. 30024/96, 26 September 2000; and Stamatios Karagiannis v. Greece, no. 27806/02, § 28, 10 February 2005). 30. It follows that the remaining part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE REMOVAL OF THE SECOND APPLICANT TO ITALY 31. Under Article 8 of the Convention the applicants alleged that the removal of the second applicant to Italy on 4 September 2012 had violated their right to respect for their family life. Article 8 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. ” A. Admissibility 32. The Court notes that the complaint under Article 8 raises issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no other grounds for declaring this part of the application inadmissible. It must therefore be declared admissible ( see, mutatis mutandis, A.S. v. Switzerland, no. 39350/13, § 40, 30 June 2015). B. Merits 1. The parties ’ submissions (a) The applicants 33. The applicants stressed that the removal of the second applicant to Italy on 4 September 2012 had violated their right to respect for their family life as a married couple. In their view, in its decisions of 20 March 2012 and 3 May 2012, the FAC had wrongly refused to recognise their married status. In support of this argument, they referred to the FAC ’ s subsequent decision of 28 November 2013, which did recognise that the applicants ’ relationship fell within the definition of “family” for the purposes of domestic law and the Dublin Regulation and should therefore benefit from a joint asylum procedure. (b) The Government 34. The Government considered that at the time of the administrative and judicial decisions leading to the removal of the second applicant to Italy, on 4 September 2012, the applicants could not be considered as legally married. On the one hand, there was no evidence that such marriage had ever been contracted and, on the other hand, there was a compelling interest in not recognising a marriage between an adult and a 14 year old child. 35. The Government also stressed that the reason why the applicants ’ asylum procedures were treated separately was because the first applicant had failed to appeal against the FOM ’ s initial decision not to examine her asylum application on the merits, while the second applicant had appealed. 36. The Government finally recalled that the FAC ultimately did take into account the evolution of the applicant ’ s situation after the lodging of the present request and adapted their decisions accordingly : the applicants were granted refugee status and their religious marriage was duly recognised. 37. Therefore, the Government requested that the Court strike out the application under Article 37 § 1 (c) of the Convention. 2. The Court ’ s assessment 38. The Court recalls that where a Contracting State tolerates the presence of an alien on its territory, thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit, such a Contracting State enables the alien to take part in the host country ’ s society, to form relationships and to create a family there. However, this does not automatically entail that the authorities of the Contracting State concerned are, as a result, under an obligation pursuant to Article 8 of the Convention to allow him or her to settle in their country. In a similar vein, confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to Article 8 of the Convention to allow an alien to settle in the country. The Court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them ( see Jeunesse v. the Netherlands [GC], no. 12738/10, § 103, 3 October 2014 ). The same applies to cases of asylum seekers whose presence on the territory of a Contracting State is tolerated by the national authorities on their own motion or accepted in compliance with their international obligations ( see A.S. v. Switzerland, no. 39350/13, § 44, 30 June 2015). 39. Like Jeunesse (§ 104) and A.S. v. Switzerland (§ 45), the present case may be distinguished from cases concerning “settled migrants” as this notion has been used in the Court ’ s case-law, namely, persons who have already been formally granted a right of residence in a host country. A subsequent withdrawal of that right, for instance because the person concerned has been convicted of a criminal offence, will constitute an interference with his or her right to respect for private and/or family life within the meaning of Article 8. In such cases, the Court will examine whether the interference is justified under the second paragraph of Article 8. In this connection, it will have regard to the various criteria which it has identified in its case-law in order to determine whether a fair balance has been struck between the grounds underlying the authorities ’ decision to withdraw the right of residence and the Article 8 rights of the individual concerned (ibid., § 45). 40. As the factual and legal situation of a settled migrant and that of an alien seeking admission, whether or not as an asylum seeker, are not the same, the criteria developed in the Court ’ s case-law for assessing whether the withdrawal of a residence permit of a settled migrant is compatible with Article 8 cannot be transposed automatically to the situation of the applicant. Rather, the question to be examined in the present case is whether, having regard to the circumstances as a whole, the Swiss authorities were under a duty pursuant to Article 8 to grant the second applicant a residence permit in Switzerland, whether or not as an asylum seeker, thus enabling him to exercise any family life he might have established on Swiss territory with the first applicant, whom they had decided not to remove to Italy ( see, mutatis mutandis, A.S. v. Switzerland, cited above, § 46 ). The instant case thus concerns not only family life but also immigration lato sensu. For this reason, it is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation under Article 8 of the Convention ( see, mutatis mutandis, ibid. , § 46 ). 41. The Court recalls that in a case which concerns family life as well as immigration, the extent of a State ’ s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion ( see Jeunesse, cited above, § 107; A.S. v. Switzerland, cited above, § 47 ). 42. The Court reiterates that the notion of “ family life ” in Article 8 is not confined solely to families based on marriage and may encompass other de facto relationships (see, among many other authorities, Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31; Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297 ‑ C; X, Y and Z v. the United Kingdom, 22 April 1997, § 36, Reports of Judgments and Decisions 1997 ‑ II; and Emonet and Others v. Switzerland, no. 39051/03, § 34, ECHR 2007 ‑ XIV). When deciding whether a relationship can be said to amount to “ family life ”, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means ( see Van der Heijden v. the Netherlands [GC], no. 42857/05, § 50, 3 April 2012). 43. In the present case, the second applicant was removed to Italy on 4 September 2012, while the first applicant was allowed to stay in Switzerland for the duration of her asylum application. Before the FAC, the second applicant argued that he should not be separated from the first applicant as they were religiously married. In its decisions of 20 March 2012 and 3 May 2012, the FAC considered that the applicants ’ religious marriage was invalid under Afghan law and in any case was incompatible with Swiss ordre public due to the first applicant ’ s young age ( see paragraphs 10 and 11 above). 44. The Court does not see any reason to depart from the findings of the FAC in this respect. Article 8 of the Convention cannot be interpreted as imposing on any State party to the Convention an obligation to recognise a marriage, religious or otherwise, contracted by a 14 year old child. Nor can such obligation be derived from Article 12 of the Convention, which reads as follows: “ [m]en and women of marriageable age have a right to marry and found a family, according to the national laws governing the existence of this right”. Article 12 expressly provides for regulation of marriage by national law, and given the sensitive moral choices concerned and the importance to be attached to the protection of children and the fostering of secure family environments, this Court must not rush to substitute its own judgment in place of the authorities who are best placed to assess and respond to the needs of society ( see B. and L. v. the United Kingdom, no. 36536/02, § 36, 13 September 2005). At the time of the removal of the second applicant to Italy, the national authorities were therefore justified in considering that the applicants were not married, all the more so, given the fact that the applicants had not yet taken any steps to seek recognition of their religious marriage in Switzerland. 45. In any case, even if the relationship existing between the applicants in 2012 had qualified as “family life” under Article 8 of the Convention (see and contrast with Şerife Yiğit v. Turkey [GC], no. 3976/05, §§ 97 and 98, 2 November 2010), the Court notes that the second applicant returned to Switzerland only three days after having been removed to Italy, and was not expelled thereafter although his stay in Switzerland was illegal. He was de facto allowed to remain in Switzerland and to request a re-examination of his asylum application, which eventually succeeded. The Court also notes that the applicants did not argue that the first applicant, who was not a Swiss resident and was only tolerated on Swiss territory for the purposes of her asylum application, was ever prevented from joining the second applicant after the latter had been expelled to Italy. 46. Bearing in mind the margin of appreciation afforded to States in immigration matters, the Court finds that a fair balance has been struck between the competing interests at stake, namely the personal interests of the applicants in remaining together in Switzerland while waiting for the outcome of the first applicant ’ s asylum application, on the one hand and, on the other, the public order interests of the respondent Government in controlling immigration ( see, mutatis mutandis, A.S. v. Switzerland, § 50). 47. In view of the above considerations, the Court finds that the implementation of the decision to remove the second applicant to Italy did not give rise to a violation of Article 8 of the Convention.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding in particular that the Convention could not be interpreted as requiring a State to recognise a marriage entered into by a child of 14.