Information Note on the Court’s case-law 203
January 2017
Abuhmaid v. Ukraine - 31183/13
Judgment 12.1.2017 [Section V]
Article 13
Effective remedy
Uncertainty surrounding regularisation of immigration status: no violation
Facts – The applicant, a holder of a passport issued by the Palestinian Authority, arrived in Ukraine in 1993. In March 2010 he applied for an extension of his residence permit. The authorities noted that his permit had expired in November 2009 and that the applicant was in breach of migration regulations. On 17 March 2010 the police issued a decision stating that the applicant should be removed from Ukraine. The domestic courts granted the authorities’ application but on 29 October 2014 held that the applicant’s forcible removal from Ukraine would be in violation of his right to respect of family life. The applicant complained under Articles 8 and 13 of the Convention about the uncertainty of his further stay and status in Ukraine. In particular, he argued that the expulsion decision of 17 March 2010 remained valid and that he could not legalise his residence in Ukraine.
Law – Article 13 read in conjunction with Article 8: The domestic courts’ initial decisions granting the authorities’ request for the applicant’s forcible removal from Ukraine had been overturned and the applicant had been given the opportunity to submit an asylum application, providing him with a lawful ground to stay in Ukraine for the duration of the examination of that application. As such, he did not face any real and imminent risk of expulsion from Ukraine. However, his prospects of further stay remained uncertain and he had not, to that point, been able to regularise his status.
Respect for the applicant’s private life in combination with the requirement of effective domestic remedies entailed a positive obligation on the respondent State to provide an effective and accessible procedure or combination of procedures enabling him to have the issues of his further stay and status in Ukraine determined with due regard to his private-life interests. In that connection the Court observed that in 2001 Ukraine had enacted the Immigration Act setting out the conditions and procedures for foreigners and stateless persons seeking leave to permanently reside in that country. Although the applicant had been unsuccessful in trying to regularise his stay and status in Ukraine in accordance with that Act, there was nothing to suggest that that could be attributed to a deficiency in the relevant regulations or that he was no longer able to have access to those procedures.
The issues of uncertainty of the applicant’s stay in Ukraine and his inability to regularise his status in that country had not been resolved by the refusal of his forcible expulsion and it was not clear whether they could have been effectively resolved with the help of the procedures under the Immigration Act. However, having regard to the fact that the applicant still had access to different domestic procedures which might result in the regularisation of his stay and status in Ukraine, it could not be said that the respondent State had disregarded its positive obligation to provide an effective and accessible procedure or a combination of procedures enabling him to have the issue of his further stay and status in Ukraine determined.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy