CASE OF ALIYEV v. UKRAINE

FIFTH SECTION

CASE OF ALIYEV v. UKRAINE

(Application no. 78228/14)

JUDGMENT
 

STRASBOURG

10 June 2021

This judgment is final but it may be subject to editorial revision.

In the case of Aliyev v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Jovan Ilievski,
 Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 78228/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Samid Ayaddin Ogly Aliyev (“the applicant”), on 10 December 2014;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaint under Article 8 of the Convention and to declare inadmissible the remainder of the application;

the decision of the Government of Azerbaijan not to exercise their right to intervene in the proceedings;

the parties’ observations;

Having deliberated in private on 20 May 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the applicant’s complaint that the decisions to revoke his residence permit following the revocation of his mother’s Ukrainian nationality and to order his expulsion from Ukraine with a ban on re-entry were not compatible with the requirements of Article 8 of the Convention.

THE FACTS

2.  The applicant was born on 17 October 1987 and lives in Kryvyi Rig. The applicant was represented by Mr S.G. Yakymenko, a lawyer practising in Kryvyi Rig.

3.  The Government were represented by their Agent, most recently Mr I. Lishchyna.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.Grant and revocation of a residence permit to the applicant as a son of a Ukrainian citizen

5.  In either 2007 or 2008 the applicant’s parents and brother moved from Azerbaijan, of which they were nationals, to Ukraine.

6.  On 28 April 2008 the Ukrainian authorities granted the applicant’s mother Ukrainian citizenship based on the fact that her brother had lived in Ukraine in 1991 prior to the proclamation of its independence (see the relevant provision of the Citizenship Act in paragraph 24 below).

7.  The exact date of the applicant’s arrival in Ukraine is not certain. According to him, he arrived in 2008. According to a domestic court judgment in subsequent paternity proceedings (see paragraph 17 below), he cohabited with a girlfriend in Ukraine since 2006.

8.  On 2 July 2009 the applicant obtained a permanent residence permit as a son of an Ukrainian citizen.

9.  On 29 June 2010 the Ukrainian authorities revoked their decision to grant citizenship to the applicant’s mother, finding that she had failed to renounce the citizenship of Azerbaijan within the time-limit set in the Citizenship Act. She appealed, but on 29 April 2011 the Dnipropetrovsk Circuit Administrative Court (“the Circuit Court”) and on 18 December 2012 the Dnipropetrovsk Administrative Court of Appeal (“the Court of Appeal”) rejected her appeals.

10.  On 23 July 2010 the migration authority decided that the applicant was residing in Ukraine unlawfully, with a residence permit issued on the basis of documents (that is the mother’s citizenship documents) which were no longer valid. Acting under the Aliens Act (see paragraph 23 below), the authority ordered the applicant’s expulsion from Ukraine, with the applicant being notified of his duty to leave within thirty days failing which he would be forcibly expelled (the latter measure was never executed). By the same decision they imposed a five-year ban on the applicant’s re-entry.

11.  On 2 August 2010 the authorities revoked the applicant’s residence permit on the grounds that it had been obtained on the basis of documents which were no longer valid (see the relevant provision of the Immigration Act, section 12, in paragraph 26 below).

12.  The applicant challenged the decisions of 23 July and 2 August 2010 before the Circuit Court. The court suspended their enforcement for the duration of proceedings.

13.  Before the courts the applicant argued mainly that section 12 of the Immigration Act could not be the basis for the revocation of his permit since, as at the time it had been issued, his mother’s citizenship documents had been valid, they had been revoked only later. At the time he had obtained his permit he could not predict that his mother would not comply with the two-year time-limit to renounce her original citizenship (see the relevant provision of the Citizenship Act in paragraph 24 below). In any event, the applicant could not be held responsible for any breach of the law committed by his mother. The decisions, therefore, had been in breach of the principle of legal certainty.

14.  On 17 April 2013 the Circuit Court dismissed the applicant’s claims finding that the impugned decisions were lawful. On 4 February and 30 October 2014, respectively, the Court of Appeal and the High Administrative Court upheld the decision of the Circuit Court. The courts held that the revocation decision had been in accordance with sections 12 and 13 of the Immigration Act (see paragraphs 26 and 27 below) since the applicant’s mother’s citizenship had been revoked and the legality of that decision had been upheld by the administrative courts (see paragraph 9 above). As to the expulsion decision, it had been in accordance with section 32 of the Aliens Act (see paragraph 23 below): the courts noted, in particular, that in its case-law the High Administrative Court had interpreted “gross violation of law” justifying expulsion under that provision as covering also the presence in Ukraine without a valid residence document, which they considered had occurred in the applicant’s case.

15.  The Circuit Court also noted that in 2013 the applicant obtained the right to immigrate as a parent of his Ukrainian daughter (see paragraph 18 below). That fact, however, did not affect the lawfulness of the impugned decisions.Application for immigration due to the birth of the applicant’s Ukrainian daughter

16.  On 29 July 2011 the applicant’s daughter was born, the daughter and the mother, the applicant’s girlfriend, having Ukrainian citizenship. The daughter bears the applicant’s last name and patronymic.

17.  The child’s mother sued the applicant for recognition of paternity. The applicant acknowledged paternity in court. By a judgment of 2 December 2011 the Kryvyi Rig Tsentralno-Misky District Court acknowledged the applicant’s paternity. In doing so it stated, based on the facts as alleged by the mother and acknowledged by the applicant, that they had cohabited “from June 2006 to June 2011”.

18.  On 5 March 2013 the applicant applied for permit to immigrate in view of the birth of his daughter. On 18 June 2013 that permit was granted, with a validity until 18 June 2014.

19.  On 22 May 2014 the applicant applied for a residence permit on those grounds. On 19 June 2014 the Dnipro Regional Migration Service refused to issue the permit on the grounds that the applicant had failed to comply with the expulsion decision of 23 July 2010 (see paragraph 10 above) and was still subject to the re-entry ban. On 22 October 2015 the Circuit Court allowed the applicant’s claim on the grounds that, by the time the court examined the matter, the five-year ban had already expired, set aside the Migration Service’s refusal and ordered it to re-examine the matter. There is no information in the file on the further progress in those proceedings.Facts concerning the applicant’s parents’ and brother’s residence permit

20.  On 22 July 2010 the immigration authorities also revoked, on the same grounds, the applicant’s brother’s residence permit. He appealed.

21.  On 17 December 2013 the Court of Appeal held the revocation to be unlawful. It reasoned that section 12 of the Immigration Act (see paragraph 26 below) could not serve as grounds for the revocation of the applicant’s brother’s permit since the documents on the basis of which it had been issued (his mother’s citizenship documents) had been valid when the permit had been issued. It is not known if an appeal was lodged against that decision.

22.  On 25 October 2013 the applicant’s parents and on 1 April 2014 his brother obtained fresh permanent residence permits. It is not known on what grounds those permits were issued.

RELEVANT LEGAL FRAMEWORK AND PRACTICELegal Status of Foreigners and Stateless Persons Act of 1994 (in force until 25 December 2011 – the Aliens Act)

23.  Section 32 § 2 of the Act provided that foreigner nationals and stateless persons (aliens) could be expelled from Ukraine if they “grossly violated the law on the status of aliens”. Concerning the interpretation of that term in the case-law of the High Administrative Court, see paragraph 14 above. Section 32 § 1 provided that, in case of expulsion, the aliens could be banned from entering Ukraine for up to five years.Citizenship Act of 2001

24.  Section 8 provides that foreign nationals who themselves resided in the territory of Ukraine prior to 24 August 1991 (the date of proclamation of Ukraine’s independence) or whose children, siblings and parents resided there at the time can obtain Ukrainian citizenship by declaration on condition that they submit an undertaking to renounce their foreign citizenship. Individuals who exercise this right must then, within two years, submit to the competent authority a document issued by the relevant foreign State confirming that they have effectively renounced their foreign citizenship.Immigration Act of 2001

25.  Section 4 provides for a system of immigration quotas set by the Cabinet of Ministers annually by category of immigrants and provides that children and parents of Ukrainian citizens are issued immigration permits outside of the quotas.

26.  Section 12 § 1 of the Act provides that one of the grounds for revoking an immigration permit is that it is revealed that the permit was issued on the basis of forged documents or documents which “lost their validity” (з’ясується, що його надано на підставі свідомо неправдивих відомостей, підроблених документів чи документів, що втратили чинність).

27.  Section 13 provides that the individuals whose permit has been revoked must leave the territory of Ukraine within thirty days and can be expelled if they fail to do so.

28.  However, if the person challenges the revocation in court, the expulsion decision cannot be taken until the decision of the first-instance court in the case is upheld on appeal or the person lodges no appeal against a first-instance court’s judgment upholding the revocation.Regulations on registration of marriages of foreign nationals in Ukraine

29.  Section III.1.4 of the Civil Status Registration Regulations (enacted by order of the Ministry of Justice no. 52/5 of 18 October 2000) provides that foreign nationals wishing to register a marriage in Ukraine must submit a document certifying the legality of their stay in Ukraine.

THE LAWALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

30.  The applicant complained that the revocation of his residence permit and the ban imposed on his entry in Ukraine breached his right to respect for his private and family life as provided in Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life ...

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.”The parties’ submissionsThe Government

31.  The Government pointed out that, by the time of submission of their observations (18 September 2015), the applicant had obtained the right to a residence permit as a parent of a Ukrainian citizen (see paragraph 18 above). He was cohabiting with his Ukrainian partner when his daughter had been born, on 29 July 2011 (see paragraph 16 above). For the Government, this indicated that the applicant had not led family life with his mother when his residence permit had been revoked.

32.  In any event, the applicant had solid cultural and linguistic ties to the country of origin as he had lived there from birth until twenty-one years of age. His was an adult and capable of leading an independent life and he had in fact lived from 2007 to 2008 in Azerbaijan on his own.

33.  Therefore, there had been no interference with the right to respect for family life. In any event it had been in accordance with the law, most notably section 32 of the Aliens Act (see paragraph 23 above). It had been necessary in a democratic society in the interests of controlling immigration.The applicant

34.  The applicant submitted that the impugned decisions had prevented him from registering his marriage with the mother of his child in Ukraine since the relevant domestic regulations governing registration of marriages required foreign nationals wishing to register their marriage in Ukraine to submit proof of their regular stay in the country (see paragraph 29 above).

35.  Had the applicant been forced to leave for Azerbaijan he would have been separated from his daughter and her mother, citizens of Ukraine. The Government’s allegation that the applicant had cohabited with the mother of his child since the time of the child’s birth were incorrect as it had been established by the domestic court’s judgment that he had cohabited with her since 2006 (see paragraph 17 above).

36.  Section 12 of the Immigration Act provided that immigration permits could be cancelled where documents on the basis of which they had been issued were invalid. However, in the applicant’s and his brother’s case the domestic courts had adopted contradictory interpretations of the domestic law on the question of whether the underlying document had to be invalid at the time the permit was issued or could be recognised as invalid subsequently in view of later events, such as in this case their mother’s failure to renounce her other citizenship (contrast paragraphs 14 and 21 above).The Court’s assessmentAdmissibility

37.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

(a)   Existence of an interference

38.  The Court notes at the outset that the applicant provided it with incomplete and contradictory information concerning the circumstances of his arrival in Ukraine. On the one hand, he alleged that he had arrived in Ukraine in 2008 and the Government did not contradict him on that point (see paragraphs 7 and 32 above).  On the other hand, the domestic court established, and the applicant did not contest that finding (see paragraph 17 above), that he had already been living in Ukraine since 2006 with his girlfriend.

39.  In any event, at the time relevant for this assessment, that is when the relevant decisions became final (see Maslov v. Austria [GC], no. 1638/03, § 61, ECHR 2008, with further references), the applicant was twenty-seven years of age (see paragraphs 2 and 14 above).

40.  As a general rule, relationships between adult relatives do not necessarily attract the protection of Article 8 without further elements of dependency involving more than the normal emotional ties (see, for example, Konstatinov v. the Netherlands, no. 16351/03, § 52, 26 April 2007, and Z. and T. v. the United Kingdom (dec.), no. 27034/05, ECHR 2006-III). This aspect of additional dependency can be assumed to exist without particular substantiation only in cases concerning young adults who were still living with their parents and had not yet started a family of their own (see, for example, Bouchelkia v. France, 29 January 1997, § 41, Reports of Judgments and Decisions 1997‑I, and Pormes v. the Netherlands, no. 25402/14, § 47, 28 July 2020, with further references).

41.  Even if the applicant, a person of twenty-seven years of age, could still be considered a “young adult”, the Court notes that, according to the findings of the domestic court (see paragraph 17 above), at the relevant time the applicant lived with his girlfriend rather than his parents and there is no indication that there were any further elements of dependency between the applicant and his parents (compare Pormes, cited above, § 48). Therefore, there is no indication that the applicant can be considered to have enjoyed, at the relevant time, family life with his parents.

42.  The same cannot be said, however, about the applicant’s ties with his minor daughter, who is a Ukrainian national. The entry ban imposed on him constituted an interference with his right to respect for “family life” in that respect (see paragraph 19 above and, for example, Alim v. Russia, no. 39417/07, § 73-75, 27 September 2011, and Udeh v. Switzerland, no. 12020/09, §§ 52 and 53, 16 April 2013).

43.  The Court considers it appropriate, in the particular circumstances of the case, to focus its examination on the latter aspect of the situation.

(b)   Justification for the inference

44.  It is necessary to determine whether the interference was “in accordance with the law”, justified by one or more of the legitimate aims set out in that paragraph, and “necessary in a democratic society” (see, for example, Ozdil and Others v. the Republic of Moldova, no. 42305/18, § 63, 11 June 2019).

45.  The Court observes that the domestic authorities considered that, as of 23 July 2010, the applicant was present in Ukraine illegally even though they revoked his residence permit only later, on 2 August 2010 (see paragraphs 10 and 11 above), and, under domestic law, following that revocation the applicant still had thirty days to leave the country (see paragraph 27 above).

46.  There was therefore a legal basis for the applicant’s presence in Ukraine at the time the expulsion and ban were ordered. Even accepting the domestic courts’ interpretation that the presence of an alien in Ukraine without a valid residence permit in itself constituted a “gross violation of the law on the status of aliens” justifying expulsion under the Aliens Act (see paragraphs 14 and 23 above), it is unclear how that legal classification could apply to the applicant since at the time the expulsion and re-entry ban were ordered he had in fact possessed a valid residence permit.

47.  This means that, even without going into considerations concerning the disagreement between the domestic courts in the applicant’s and his brother’s case as to whether the revocation of their mother’s citizenship could serve as legal basis for the revocation of their residence permits (see paragraphs 14 and 21 above), the Court is not convinced that the domestic authorities’ decision to treat the applicant’s presence in Ukraine as irregular was based on a foreseeable interpretation of domestic law.

48.  Moreover, the domestic authorities and courts did not engage in any examination of the necessity of those measures against the applicant and simply disregarded the applicant’s arguments in that respect (see paragraphs 13 and 14 above).

49.  These considerations are sufficient for the Court to conclude that the impugned measures did not meet the requirements set forth in Article 8 § 2 (see, for example, Gablishvili v. Russia, no. 39428/12, §§ 51-53, 26 June 2014).

50.  There has, therefore, been a violation of Article 8 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

51.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

52.  The applicant claimed 18,750 euros (EUR) in respect of non‑pecuniary damage.

53.  The Government submitted that the claim was unjustified and unsubstantiated.

54.  The Court awards the applicant EUR 2,400 in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

55.  The applicant also claimed EUR 1,255 for the costs and expenses incurred before the domestic courts and EUR 3,215 for those incurred before the Court.

56.  The Government submitted that the claim was excessive and not supported by appropriate documentation.

57.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable to the applicant.Default interest

58.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 8 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, the following amounts:

(i)  EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller  Stéphanie Mourou-Vikström
Deputy Registrar President

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