Communicated on 28 May 2019
THIRD SECTION
Application no. 29255/18
Alisher Akmalovich AKMALOV
against Russia
lodged on 13 June 2018
STATEMENT OF FACTS
The applicant, Mr Alisher Akmalovich Akmalov, is a national of Uzbekistan, who was born in 1991 and lives in Tashkent. He is represented before the Court by Mr N. Zboroshenko, a lawyer practising in Moscow.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
1. Background information
On 1 September 2013 the applicant entered a master’s programme in law at the National Research University – Higher School of Economics (the HSE) in Moscow, Russia. His stay in Russia was authorised for the duration of his studies. On 13 November 2013 and 19 August 2014 the HSE informed the Federal Migration Service (the FMS) about the applicant’s enrolment into the programme in order to maintain his legal immigration status.
Between 2013 and 2015 the applicant studied at the HSE and resided in Moscow, where he had a circle of friends.
On 18 June 2015 the applicant successfully finished the master’s programme. He intended to continue his studies and enter in September 2015 a doctorate programme at the HSE. On an unspecified date between July and August 2015 the applicant left Russia for a summer visit to Uzbekistan.
On 13 August 2015 the applicant purchased in Uzbekistan an airplane ticket for EUR 223 to go back to Moscow to take the examinations for the doctorate programme on 16 September 2015.
2. The exclusion order against the applicant and subsequent events
On 30 August 2015 the applicant arrived from Tashkent at Domodedovo airport in Moscow. Upon the arrival, at the border guard service the applicant was handed a notice that his entry into the Russian Federation was banned until 3 July 2020 (the exclusion order). The document referred to section 27 § 1 of the Entry and Exit Procedures Act that is that entry of a foreign national could be banned if his/her presence in Russia constituted a real threat to the defensive capacity or security of the State, to public order or health, etc. No information concerning either the reasons for the exclusion nor the authority which issued the order were provided. From the documents submitted to the Court it transpires that the exclusion order had been issued on 14 July 2015 (in the documents submitted the date was also referred to as 3 July 2015); the applicant was informed thereof on 6 November 2015 (see below).
On the same date, 30 August 2015, the applicant was deported back to Uzbekistan, having signed the undertaking that he would reimburse the airline the cost of the deportation airplane ticket. Subsequently, on an unspecified date prior to 1 November 2015, he reimbursed the National Aviation Company of the Republic of Uzbekistan the price of that ticket of EUR 198.
On 1 September 2015 the HSE requested the FMS to remove the applicant’s name from the list of persons whose entry into Russia was banned (the list). The documents confirming the applicant’s studies at the HSE were enclosed therein.
On 3 October 2015 the HSE informed the applicant that his name had been removed from the list.
On 5 October 2015 the FMS annulled the exclusion order against the applicant, but did not inform him thereof.
On 8 October 2015 (in the documents submitted the date was also referred to as 7 October 2015) the applicant again arrived at Domodedovo airport in Moscow. At the border guard service he was again handed the exclusion order, which again referred to section 27 § 1 of the Entry and Exit Procedures Act and threatened criminal prosecution for failure to comply.
On the same date, 8 October 2015, several hours later, upon telephone calls made between the HSE and the Federal Border Guard Service, the applicant was allowed to enter Russia.
On 6 November 2015 the applicant was informed that on 14 July 2015 the exclusion order had been issued against him (see above).
On 27 November 2015 the FMS informed the HSE that they had examined their letter concerning the removal of names of several students from the list and stated that on an unspecified date the applicant’s name had been removed thereof.
3. The applicant’s appeals against the exclusion order
On 27 November 2015 the applicant complained to the Basmanniy District Court in Moscow (the District Court) asking it to recognise the exclusion order unlawful. In particular, he stated that due to the order which had been issued against him without any grounds and for unknown reasons, he had not been able to participate in the once a year examinations for the doctoral programme held in September 2015. Referring to, amongst other things, Article 8 of the Convention, the applicant claimed that the exclusion order violated his right to private life as it had made it impossible for him to enter Russia and continue his studies there. The applicant asked the court to request from the immigration authorities documents pertaining to the reasons for the issuance of the exclusion order against him, having stressed that neither the grounds for its imposition nor the reasons for its subsequent annulation were known to him.
On 2 February 2016 the District Court examined and rejected the applicant’s complaint. According to the court’ decision, the documents examined at the hearing showed the following:
“... the case file contains copies of requests of the Higher School of Economics to the Moscow Department of the Federal Migration Service dated 13 November 2013 and 19 August 2014 concerning extension of Mr Akmalov’s temporary stay in the Russian Federation. However, there is no evidence concerning either factual sending of those requests or their receipt by the FMS in Moscow.
From the contents of the case file, it could be seen that ... the decision [to exclude the applicant] of 14 July 2015 was annulled by the defendant on 5 October 2015. At present, there are no obstacles for Mr Akmalov’s entry into the Russian Federation.
At the same time, the defendant’s representative stated at the hearing that at the time of the issuance of the impugned decision of 14 July 2015, [it had been that] according to the information from the Central Registration Data Base for Foreign Nationals, the applicant had arrived in Russia on 15 August 2014 and left the country on 3 July 2015, which comprised 202 days of unlawful stay in Russia. The defendant had no information concerning the applicant’s studies at the HSE, therefore, the period of the applicant’s authorised stay had not been extended and, therefore, the Moscow FMS could not take that into account when taking the decision [to exclude the applicant] ...
At present, given that there are no obstacles to Mr Akmalov’s entry and stay in the Russian Federation and that the decision of 14 July 2015 was annulled by the defendant voluntarily on 5 October 2015, the court concludes that the defendant’s actions did not violate any of Mr Akmalov’s rights ...”
The applicant appealed against the above decision to the Moscow City Court (the City Court). He stated that the District Court had failed to grant his request to obtain documents which had served as the basis for the exclusion order and that it failed to examine the alleged violation of his right to respect for private life. He stressed that he had not been able to take the examinations for the doctoral programme and that the unlawfulness of the exclusion was demonstrated by the authorities’ subsequent decision to annul it. Furthermore, as a result of the unlawful exclusion, he had to pay EUR 198 for his flight back to Uzbekistan on 30 August 2015.
On 4 July 2017 the City Court upheld the District Court’s decision in a summary fashion. It stated that there had been no violation of the applicant’s rights and that the impugned decision to exclude the applicant had been taken lawfully as the immigration authorities had not had information confirming the lawfulness of his stay in Russia. As for the applicant’s complaint concerning the payment for the flight back to Uzbekistan, the court ignored it.
The applicant appealed further against the decision, to the Presidium of the City Court. In his cassation appeal, he referred to the violation of Article 8 of the Convention due to the unlawful decision to exclude him from Russia and the failure of the District Court to verify the grounds for that decision. He also stated that he had suffered material loss as the result of his unlawful exclusion.
On 27 October 2017 the applicant’s appeal was examined and the decision refusing its examination by the Presidium of the City Court was taken.
The applicant’s further appeal to the Russia Supreme Court was to no avail. On 2 February 2018 the court refused to transfer the appeal for examination on the merits to its Administrative Cases Chamber having stated that as “the impugned decision banning the applicant’s entry was annulled on 5 October 2015 and, therefore, it stopped the violation of Mr Akmalov’s rights”.
B. Relevant domestic law
For a summary of the relevant domestic regulations see Guliyev and Sheina v. Russia, no. 29790/14, §§ 25-34, 17 April 2018.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the exclusion order issued against him in July 2015 was unlawful, violated his right to respect for private life and that the domestic courts failed to properly examine the issue.
QUESTION TO THE PARTIES
Did the exclusion order issued in July 2015 in respect of the applicant constitute an interference with his right to respect for his private life within the meaning of Article 8 of the Convention? Did the domestic courts examine his allegation of the adverse effect of the exclusion order on his private life (see Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006‑XII)?
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