Communicated on 2 November 2017
THIRD SECTION
Application no 51298/17
Intigam ASMAROV and Sona ASMAROVA
against Russia
lodged on 11 July 2017
STATEMENT OF FACTS
The applicants are Mr Intigam Asmarov, a Georgian national who was born in 1977, and Ms Sona Asmarova, a Russian national who was born in 1984. The applicants are married and live in Ryazhsk. They are represented before the Court by Ms D.N. Timoshkina, a lawyer practising in Ryazan.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Annulment of the first applicant’s residence permit and his appeals lodged with the domestic courts
1. Background information
The applicants, who were residing in Georgia, married in 2001. Later that year they had a son, Il.A., and then in 2002 a daughter, E.A.
In 2011 the applicants and their two children moved to Russia to join the first applicant’s brother, Mr I.A., a Russian national, in Ryazhsk, the Ryazan Region.
On 11 October 2011 the Ryazan Regional Department of the Federal Migration Service (“the FMS”) granted the first applicant a temporary residence permit.
On 24 November 2014 the first applicant was officially registered as a private entrepreneur in Russia.
On 22 April 2015 the FMS granted the first applicant a permanent residence permit.
In February 2017 the second applicant and the applicants’ son, Il.A., were granted Russian nationality. The applicants’ daughter was granted a permanent residence permit valid until February 2021. The applicants’ children go to school in Ryazhsk.
2. Annulment of the first applicant’s residence permit
On 14 June 2016 the Ryazan Regional Department of the Federal Security Service (“the FSB”) wrote to the FMS requesting that they annul the first applicant’s residence permit “due to newly discovered circumstances” and that they inform the FSB about the steps taken by 11 July 2016.
On 21 June 2016 the request was received by the FMS.
On 23 June 2016 the FMS annulled the first applicant’s residence permit with reference to the above-mentioned request from the FSB, stating that the first applicant posed a threat to the national security of the Russian Federation.
On 23 June 2016 the applicant was informed of the annulment. No reasons for the decision, other than a reference to the FSB letter of 14 June 2016, were given.
3. Appeals against the annulment in the domestic courts
The first applicant appealed against the annulment to the Ryazhsk District Court (“the District Court”). He stated, in particular, that the reasons for the annulment of his residence permit had not been disclosed to him and that no evidence had been presented to justify the measure. He further alleged that the annulment of his residence permit violated his rights under Article 8 of the Convention and disrupted his family life with the second applicant and their children.
On 7 November 2016 the District Court rejected the first applicant’s appeal. In its decision it did not cite any documents submitted by the FSB as serving as the basis for the annulment, but simply stated that the measure had been imposed on the basis of the letter of 14 June 2016. The court did not review any documents or evidence, having stated that the FSB had “the authority to send the order concerning the issue of the annulment of the residence permit.” The court left without examination the complaint concerning the disruptive effect of the measure on the applicants’ family life.
The first applicant appealed against the above decision to the Ryazan Regional Court (“the Regional Court”). In his appeal he stated, in particular, that the reasons for the annulment of his residence permit were unknown to him, and that no evidence had been presented either to him or to the District Court to show that he was a threat to Russia’s national security. He stressed that the annulment deprived him of legal grounds to reside in Russia and, therefore, disrupted his family life with the second applicant and their children. The applicant stressed that the District Court had failed to verify whether there were grounds justifying such a measure against him and had failed to balance the interests of the parties involved.
On 11 January 2017 the Regional Court upheld the District Court’s decision. It examined neither any evidence concerning the alleged national security threat posed by the first applicant nor his complaint of a violation of his right to respect for family life. The decision stated, in particular:
“... the absence in the FSB’s letter of information concerning concrete facts [showing the security threat] does not make this document, contrary to Mr Asmarov’s opinion, void of evidentiary weight; it could not serve for any other decision by the immigration authorities.
The information provided by the State security body without showing concrete circumstances does not contradict the legislation, which provides for the necessity to uphold the regime of secrecy and protection of information comprising State or other protected secrets ...”
The applicant attempted to lodge an appeal on points of law against the annulment of the residence permit before the Supreme Court of the Russian Federation (the Supreme Court). He stated that the courts had failed to verify the factual reasons for the annulment, that he had not been informed of those reasons, that the measure against him had disrupted his family life with the second applicant and their children, and that the courts had failed to balance the interests involved.
On 22 May 2017 a judge of the Supreme Court rejected the appeal and refused to allow its further examination by the Supreme Court. He stated, in particular:
“... rejecting Mr Asmarov’s appeal, the courts rightly reasoned that the information received by the Federal Migration Service had been obligatory for the agency and, therefore, it had duly served as the basis for taking the decision [to annul the residence permit] ...”
From the documents submitted it is unclear whether the first applicant has left Russia and if so, when and under what circumstances.
B. Relevant domestic law and international materials
For the relevant domestic law and practice see Liu v. Russia (no. 2), no. 29157/09, §§ 45-52, 26 July 2011, and for the relevant Council of Europe materials see Gablishvili v. Russia, no. 39428/12, § 37, 26 June 2014.
COMPLAINTS
The applicants complain under Article 8 of the Convention that the annulment of the first applicant’s residence permit was based on undisclosed information, and that the domestic courts failed to verify the evidentiary grounds for that measure and balance the interests involved. They further allege that the annulment disrupted their family life. Under Article 13 of the Convention the applicants complain of a lack of effective judicial examination of the appeals against the annulment.
QUESTIONS TO THE PARTIES
1. What were the motives and factual grounds for the annulment of the first applicant’s residence permit? The Government are requested to produce a copy of the relevant materials of the Federal Security Service which served as the basis for its letter to the Federal Migration Service of 14 June 2016. The Court notes that access to those documents may be restricted pursuant to Rule 33 §§ 1 and 2 of the Rules of Court.
2. What was the scope of review of the domestic courts which examined the first applicant’s appeal against the annulment? Did the courts have competence to verify whether the decision to annul the first applicant’s residence permit had been made on genuine grounds of national security, or of protection of public order or health, and whether the executive authority was able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant presented a risk in that regard? Did the courts carry out a balancing exercise between the need to protect national security, public order or health and the applicant’s right to respect for family life?
3. Were the domestic judicial proceedings concerning the appeals against the annulment of the first applicant’s residence permit attended by sufficient procedural guarantees? In particular, were the classified materials disclosed to the applicant or his representative? Was the applicant given a fair and reasonable opportunity to refute the facts and findings contained in those materials? In particular, did the courts examine other pieces of evidence to confirm or refute the allegations against him? Did the applicant have an opportunity to have witnesses questioned or present other evidence (see Al‑Nashif v. Bulgaria, no. 50963/99, § 124, 20 June 2002, and Kamenov v. Russia, no. 17570/15, §§ 37-38, 7 March 2017)?
4. Did the annulment of the first applicant’s residence permit constitute an interference with the applicants’ right to respect for their family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention (see Üner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006-...; C.G. and Others v. Bulgaria, no. 1365/07, §§ 37‑50, 24 April 2008; and Slivenko v. Latvia (dec.) [GC], no. 48321/99, §§ 93‑129, ECHR 2002‑II (extracts))?
5. Did the applicants have an effective domestic remedy within the meaning of Article 13 of the Convention, in respect of the alleged violation of Article 8 (see De Souza Ribeiro v. France [GC], no. 22689/07, § 83, ECHR 2012)?
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