FIFTH SECTION
CASE OF TANDA-MUZINGA v. FRANCE
(Application no. 2260/10)
JUDGMENT
(Extracts)
STRASBOURG
10 July 2014
FINAL
10/10/2014
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Tanda-Muzinga v. France,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Vincent A. de Gaetano,
André Potocki,
Helena Jäderblom, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 17 June 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 2260/10) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Congolese national, Mr Deo Tanda-Muzinga (“the applicant”), on 29 December 2009.
2. The applicant was represented by Mr C. Meyer, a lawyer practising in Strasbourg. The French Government (“the Government”) were represented by their Agent, Ms E. Belliard, Head of the Legal Department, Ministry of Foreign Affairs.
3. The applicant alleges, in particular, that the obstacles encountered in obtaining visas for his wife and children in the context of the so-called “family reunification” procedure for refugees amounted to a violation of his right to respect for his family life, guaranteed by Article 8 of the Convention.
4. On 21 September 2010 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1970 and lives in Venissieux.
A. Facts at the time the application was lodged
6. In the course of 2000 the applicant, a Congolese national, was granted refugee status under the mandate of the United Nations High Commissioner for Refugees in Cameroon (hereafter UNHCR/Cameroon). According to his certificate of refugee status, he was accompanied by his wife, who also held such a certificate, and his children (Vanessa Ntabugi, born in the Democratic Republic of Congo in 1994, and Michelle Tanda-Ngubiri, born in 2001 in Cameroon). The couple had a third child (Benjamin Tanda) who was born in Yaoundé (Cameroon) in 2004, but the applicant was absent when his son was born, having left Cameroon to claim asylum in France.
7. On 19 July 2004 the French Office for the Protection of Refugees and Stateless Persons (hereafter, the OFPRA) rejected his claim. On 6 August 2004 the applicant appealed against that decision. By a decision of 8 February 2007, the Refugee Appeals Board (the Commission des recours des réfugiés, formerly the National Asylum Tribunal, the Commission nationale du droit d’asile, CNDA) granted the applicant refugee status. He obtained a ten-year residence permit and in April 2007 the OFPRA issued him with a marriage certificate and a family record book (livret de famille), serving as civil-status documents.
8. By a letter of 26 June 2007, for the purpose of family reunion and on the basis of the “family reunification” procedure for certified refugees (see paragraph 36 below), the applicant applied for long-stay visas for his wife and three children. By a letter of 28 June 2007, the Movement of Aliens Section at the Ministry of Foreign Affairs informed the applicant that it would contact the OFPRA to verify, on the basis of the statements which had enabled him to be granted refugee status, whether those persons were indeed members of the family group, before contacting the French consular services in Yaoundé with a view to compiling an application file for long-stay visas.
9. By a letter of 13 February 2008, the Visa Section at the Ministry of Immigration informed the applicant that the consular services in Yaoundé would be summoning his family for an interview.
10. The applicant’s wife was requested to attend an interview at the consulate on 21 February 2008. After she had submitted the necessary documents for compiling the application, the consular authorities asked her to contact the UNHCR/Cameroon delegation to obtain travel papers for herself and her children, in accordance with the Convention of 28 July 1951. She was assured that once she had brought those documents to the consulate she would be issued with an acknowledgement of receipt of the visa application. On 18 March 2008 the applicant’s wife submitted to the consulate a travel document, issued in her name after a favourable opinion had been obtained from the Cameroonian Ministry of External Affairs. This document, which could substitute a national passport, indicated that she was accompanied by her three children. She did not receive an acknowledgment of receipt of her visa application.
Having received no news on examination of his request, the applicant applied to various authorities, including the consulate in Yaoundé, for information as to why the visas had not been issued, and included a copy of all of the documents in his possession, including his residence permit, the reconstituted documents issued by the OFPRA, his wife’s certificate of refugee status, the document serving as his elder daughter’s birth certificate, and the birth certificates of the two other children.
11. On 30 May 2008 the applicant lodged an appeal with the Appeals Board against Decisions to refuse Entry Visas to France (the CRRV, hereafter the “Appeals Board”), against the consular authorities’ implicit refusal.
12. By a letter of 3 June 2008, the OFPRA replied to a letter from the applicant dated 24 January 2008 in the following terms:
“I have the honour to inform you that on 23 July 2007 the Office certified your family’s situation to the visa section. You are registered with the Office as the husband of Mrs Julie Ngubiri Zirirane and father of three children (Vanessa Ntabugi, born on 28 December 1994; Michelle Tanda, born on 4 June 2001; and Benjamin Tanda, born on 3 September 2004). I further observe that your family has been or will shortly be invited to lodge an application for a visa with the consular authorities in Yaoundé”.
13. On 11 June 2008 the applicant lodged an urgent application before the Conseil d’État, requesting a stay of execution of the consular authorities’ implicit decision to refuse the visas.
14. On 12 June 2008 the Conseil d’État acknowledged receipt of the appeal for abuse of authority lodged by the applicant calling for judicial review of this implicit decision.
15. By an order of 23 June 2008, the urgent-applications judge at the Conseil d’État dismissed the urgent application for a stay of execution, on the grounds that the Appeals Board had not yet ruled on the matter.
16. On 30 July 2008, after two months without any reply from the Appeals Board, which amounted to implicit rejection, the applicant lodged a new urgent application for a stay of execution, as well as an urgent application for protection of a fundamental freedom (requête en référé-liberté), dated 3 August 2008.
17. By an order of 13 August 2008, the urgent-applications judge at the Conseil d’État rejected the urgent application for protection of a fundamental freedom.
18. By a letter of 13 August 2008, the applicant was summoned to a hearing on the urgent application for a stay of execution, scheduled for 10 September 2008. The applicant, who attended the hearing on that date, learnt of pleadings by the Minister of Immigration, which he received only on 12 September, contesting the birth certificates of his children Michelle and Benjamin. Following this hearing, the applicant submitted a memorandum for the deliberations.
19. According to the Government’s observations, the transcripts of the certificates obtained on 13 and 23 April 2008 from the relevant local authorities had revealed that birth certificate no. 1271 held by the civil-status authorities of the 4th arrondissement of Yaoundé concerned the birth of a boy and not that of Michelle Tanda, and that birth certificate no. 78/2004, held by the civil-status authorities of the 2nd arrondissement of Yaoundé, concerned the birth of a girl and not that of Benjamin Tanda.
20. On 16 September 2008, the urgent-applications judge informed the applicant that he had decided to reopen the investigation in the case and that he had communicated the memorandum for the deliberations to the relevant Minister for Immigration.
21. By an order of 26 September 2008, the Conseil d’État dismissed the urgent application for a stay of execution:
“[the applicant] alleges that ... the criterion of urgency has been met, in that he has been living separately from his wife and children for almost four years; [that the impugned decision] is tainted by error of law, in that by refusing to issue visas on the grounds that certain civil-status documents were absent, it breached Article 11 of Directive (EC) no.200/86 of 22 September 2003 on the right to family reunification; ... that the submitted documents cannot be considered of doubtful authenticity; that he [had] provided evidence establishing his family ties with his wife and his children; that his children’s birth certificates had been registered by the Office of the High Commissioner for Refugees;
... the Minister alleges ... that the criterion of urgency has not been met, in that responsibility for the separation lies with the applicant; that the latter has not established that he has maintained regular written or telephone contact with his family or has contributed to their upkeep since his departure; that the argument alleging a breach of the Directive of 22 September 2003 is ineffective, in so far as it has been correctly transposed into domestic law and cannot therefore have direct effect; that this text does not require the national authorities to issue a visa to an applicant who has not established his or her filiation with the refugee; that the submission of fraudulent documents is a public policy reason justifying the rejection of visa applications submitted in a family context; ...
It appears from the facts of the case ... that visa applications submitted by [the applicant], who has refugee status in France, in respect of his wife Julie B. and his three children, Vanessa C., Michelle D. and Benjamin D., were refused on the grounds that filiation had not been established for the latter two children on account of the doubtful authenticity of the submitted birth certificates; the argument that such a ground could not be a legal basis for the decision to refuse [the visas] is not such, as the evidence stands, to give rise to serious doubts as to the lawfulness of this decision, in view of the outcome of the civil-status verifications carried out by the French Consulate General in Yaoundé and the fact that the fraudulent nature of the request was such as to entail refusal not only of visas applied for in respect of these two children, but also in respect of his wife and his third child...”
22. On 6 October 2008, in the context of an appeal for judicial review, the relevant Minister filed a memorial concluding that the birth certificates of Michelle and Benjamin Tanda were fraudulent. With regard to the alleged violations of Articles 3 and 8 of the Convention, he responded that it had already been shown that the applicant had abandoned his wife and putative children, that the parent-child relationship had not been established and that the applicant had not shown that he had maintained ties with them. The applicant responded by arguing that an anomaly in the referencing of the birth certificates was not sufficient to establish the doubtful authenticity or fraudulent nature of the documents submitted by his wife. He noted firstly, with regard to Benjamin’s birth certificate, “that it was not certain that the certificate sought by the authorities was related to the document in question, given that the first component of its reference number seemed to be made up of three figures, rather than two (“?78/2004”) (see paragraph 19 above), which would be more coherent, given the date it had been drawn up, in September 2004”. He argued that the Minister did not explain how UNHCR/Cameroon had issued a Family Composition Certificate (dated 26 September 2008, referring to his wife and his three children) and official travel documents permitting his family to travel internationally. He pointed out that he had submitted to the court correspondence from the Cameroonian Ministry for External Relations, dated 11 March and 13 August 2008, drawn up in the context of the checks conducted with a view to issuing those travel documents (travel document for the child Michelle, issued on 26 August 2008 following the favourable opinion of 13 August 2008). He added that the authenticity of the other documents submitted to the court had not been called into question, namely the declaration of Michelle’s birth, issued by the Cité Verte District Hospital in Yaoundé, and the declaration of Benjamin’s birth, issued by the Yaoundé Police Medical Centre, nor that of the travel documents for his first two children, drawn up on 26 August 2008. Lastly, he indicated that other evidence submitted to the court, photographs and bank transfer statements, invalidated the Immigration Ministry’s arguments as to the reality of his ties with his wife and children.
23. On 7 October 2008 UNHCR/Cameroon drew up a “certifiate of parenthood”, stating that the applicant and his wife were the legitimate parents of the children known as Michelle Tanda-Ngubiri and Benjamin Tanda.
24. By a letter of 22 May 2009, the applicant’s lawyer informed him that a hearing had taken place before the Conseil d’État on 20 May 2009; the public rapporteur had proposed that his appeal be dismissed and had suggested that judicial rectification of the civil-status documents of the children concerned be carried out in Cameroon.
25. By a judgment of 8 July 2009, served on 5 August, the Conseil d’État rejected the appeal. It pointed out that the transcripts of the certificates, obtained by the French authorities in the Cameroonian civil-status offices for the purpose of verifying the civil-status documents of the two children born in that country, had shown that two totally different birth certificates had been issued under the same reference numbers, and concerned third parties. It considered that even if the fraudulent nature of one of the two certificates had not been demonstrated, this did not create any doubt as to evidence of the inauthenticity of the second certificate, and concluded that “in those circumstances, neither the submission of declarations of birth from the Yaoundé Maternity Hospital and the Yaoundé Police Medical Centre, not the allegation that this discrepancy originated in dysfunctions within the Cameroonian civil-status authorities, allow for the fraudulent nature of at least one of the documents thus produced to be set aside”. Lastly, it specified that the fraudulent nature of at least one of the submitted documents was such as to entail refusal of all of the requested visas.
26. On 16 July 2009 a psychologist from the Comité inter-mouvements auprès des évacués (CIMADE) certified that the applicant’s psychological health had deteriorated, and described a worsening state of depression. She submitted that “in addition to the traumatic events experienced in his country, [the applicant] is currently developing reactional depression as a result of the separation from his family, which has lasted for several years... Although he was simultaneously actively engaged in preparing a professional insertion plan, the applicant is finding it increasingly difficult to take the necessary steps and is sliding into a form of apathy”.
27. In a letter of 17 July 2009, the applicant’s lawyer confirmed that the appeal had been dismissed and informed him that the public rapporteur’s closing arguments were not available in writing.
28. Following that decision, the applicant contacted the UNHRC/Paris Office and the Director of the OFPRA. By a letter of 18 August 2009, the former replied that, according to the information communicated by the Cameroonian delegation, the French Consulate in Yaoundé was willing to issue a visa to his wife and to two of his children, Vanessa and Benjamin. With regard to the birth certificate for his daughter Michelle, he was advised to submit a request to the Yaoundé tribunal de grande instance for a supplementary judgment relating to a birth certificate. By a letter of 21 August 2009, the Director of the OFPRA wrote to the CIMADE, which had also received the applicant’s file; he was considering transferring his refugee status to another country. In that letter, the Director pointed out that his department, by a memorandum of 23 July 2007, had certified his family situation to the sub-directorate for visas in Nantes, the only administrative body with competence for the family reunification of foreigners.
29. The applicant’s wife brought proceedings before the Yaoundé Court of First Instance, seeking to obtain a supplementary judgment concerning Michelle’s civil status. By a judgment of 27 October 2009, that court declared that it did not have jurisdiction. On 24 February 2010 she brought proceedings before the Yaoundé tribunal de grande instance for the same purpose.
30. By a decision of 30 April 2010, following a further request by the applicant’s family, the consular authorities refused to issue long-stay visas.
31. According to the Government, new checks carried out in 2010 established that it had been possible to authenticate Benjamin’s birth certificate but the doubtful authenticity of the birth certificate produced for Michelle, which had been double-checked, had prompted the consular authorities to maintain their refusal to issue visas to the whole family.
32. On 18 June 2010 the applicant brought proceedings before the Appeals Board against the decision of 30 April 2010. His request was implicitly refused.
B. Facts which occurred after communication of the application
33. On 20 September 2010 the applicant applied to the urgent-applications judge at the Nantes Administrative Court seeking an order for a stay of execution of the Appeal Board’s implicit decision to refuse his request. By an order of 28 October 2010, the urgent-applications judge ordered a stay of execution of that decision on the ground that the reasons for the rejection had not been communicated. He added:
“... further, as the evidence stands, although there is uncertainty as to the parent-child relationship in respect of one of the three children, Michelle, [the applicant] refers, without however submitting it, to a supplementary judgment which purportedly substantiates his allegations; having regard to the length of time that the applicant has been separated from his family, the criterion of urgency is met; ... it is appropriate to direct the Minister to re-examine the visa application within one month of notification of the present order”.
34. According to the applicant, on 19 November 2010 UNHCR/Cameroon’s lawyer forwarded to him, and to the French authorities, the original copy of a judgment delivered by the Yaoundé tribunal de grande instance on 3 June 2010, reconstituting the birth certificate for the child Michelle. That judgment indicates that, on the day following Michelle’s birth, a declaration of birth had been duly drawn up by the doctor at the Yaoundé Cité Verte Hospital and handed to her mother, for the purpose of having the child’s birth certificate issued by the Yaoundé IV district office. However, as the applicant’s wife had been unaware of the rules in force in Cameroon for this administrative procedure, she had entrusted this declaration of birth to a third party, who had demanded and obtained from her the sum of 20,000 Central African francs (CFA) in order to obtain the birth certificate; this third party had given her a document presented as birth certificate no. 1271/2001, allegedly drawn up and signed by the mayor of Yaoundé IV. The tribunal de grande instance specified that since this document was a forgery Michelle’s birth certificate had never been issued, and it ordered that this step be taken.
35. By a letter of 17 January 2011, the Government informed the Court that on 8 December 2010 the French consular authorities had issued the long-stay visas requested by the applicant’s wife and children. They alleged that, during the period in which the visa applications were re-examined, the applicant had communicated to the consular authorities the judgment of 3 June 2010 to which he had referred but had not produced in the course of the proceedings.
...
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
50. The applicant alleged that the consular authorities’ prolonged refusal to issue the visas to this wife and his children had infringed his right to respect for his private life as guaranteed by Article 8 of the Convention, which 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
51. The Government requested that the case be “struck out”, as the applicants could no longer claim to be “victims” of a violation of Article 8 of the Convention, given that they had obtained the visas. They explained that the French authorities had agreed in principle to family reunification (see paragraph 9 above) and that it was only the discovery of the irregularities in the civil-status documents submitted in support of the visa applications which had delayed the issue of these visas. They had been issued as soon as the Yaoundé tribunal de grande instance’s judgment of 3 June 2010 had been brought to the authorities’ attention. Examination of a possible violation of Article 8 § 1 of the Convention had thus ended at the stage of evidence of the documents’ authenticity; verification of the genuine nature of the applicant’s filiation had been essential standard practice, was in accordance with the legislation and could not be contrary to the stipulations of Article 8.
52. The applicant contested the Government’s submissions, arguing that they had neither recognised nor afforded redress for the alleged violation of the Convention. In this connection, he argued that the order in his favour issued by the urgent-applications judge on 28 October 2010 (see paragraph 33 above) had not been taken on the basis of a violation of fundamental rights, but on the grounds of a failure to communicate the reasons for the Appeal Boards’ refusal. The applicant considered that the Government had grasped the pretext provided by UNHCR/Cameroon’s communication of the judgment of 3 June 2010 to find a solution to the dispute, in breach of Article 11 of the European Directive 2003/86/EC ... He emphasised that there had been no need for an interminable administrative procedure that went against the evidence in the documents provided by UNHCR/Cameroon. The applicant added that his daughter Vanessa had been raped in Cameroon during this lengthy period; following an unwanted pregnancy, she had given birth, aged fifteen, in December 2010, two weeks after arriving in France. The reason for her being granted refugee status had been precisely because she was at risk of being raped or assassinated; in the applicant’s opinion, it was the incompetence of the French authorities which had led to this tragedy.
53. The Court considers it appropriate to examine the Government’s request as a plea of inadmissibility, based on the applicant’s loss of “victim” status within the meaning of Article 34 of the Convention.
54. It is the settled case-law of the Court that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue. The existence of a violation of the Convention is conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 41. Consequently, a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012).
55. In the instant case, the Court notes that the applicant’s family had been able to join him once the visas had been issued. However, this measure was taken in December 2010 – in other words, three and a half years after his request for family reunification, and well after the applicant had sought a ruling from the domestic courts on the alleged violation of the Convention. The French authorities had not explicitly recognised, either in the domestic proceedings or before the Court, that there had been a violation of the applicant’s Convention rights during that period. Moreover, the decision to issue the visas was not followed by redress for the purposes of the Court’s case-law, cited above. Accordingly, the Court considers that the applicant can still claim to be a “victim” within the meaning of Article 34 of the Convention.
56. Nonetheless, the Court notes that the Government have requested it to strike out the application. The Court must therefore determine whether the new facts brought to its notice, namely that the visas have been issued, can lead it to conclude that the dispute has now been resolved or that, for another reason, it is no longer justified to continue the examination of the application and, in consequence, that the application may be struck out of the Court’s list in application of Article 37 § 1 of the Convention, which states:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
57. As the applicant has clearly indicated that he wishes to pursue his application, sub-paragraph (a) of this provision is not applicable. However, this does not exclude the application of sub-paragraphs (b) or (c) without the applicant’s agreement, as his or her consent is not a criterion in this regard (see Akman v. Turkey (striking out), no. 37453/97, ECHR 2001‑VI). In order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b) and that that there is therefore no longer any objective justification for the applicant to pursue his application, the Court considers that it is necessary to examine, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December 2007; and Konstantin Markin v. Russia [GC], no. 30078/06, § 87, ECHR 2012 (extracts)).
58. In the present case, the applicant’s family obtained the necessary visas for travel to France on 8 December 2010, and reunification has been achieved. The substantive facts complained of by the applicant have thus ceased to exist. It remains therefore to be ascertained whether the possibility of leading a family life following the issuing of the visas is sufficient to erase the possible consequences of the situation of which the applicant complained to the Court. In this connection, the Court notes that the applicant, who held a residence permit issued following the granting of refugee status, applied in June 2007 for family reunification in respect of those members of his family who remained under the international protection afforded by the remit of the Office of the United Nations High Commissioner for Refugees in Cameroon. Yet it was not until December 2010, that is, three and a half years after the application for family reunification, and following more than six years of family separation, that the French authorities issued the visas that would enable the family to be reunited. During this period, the applicant took all the necessary legal steps to establish his parent-child relationship with Michelle and Benjamin in order to overcome the obstacles to the reunification of the family, which had also suffered an ordeal as a result of the lengthy separation following his departure from Cameroon (see paragraph 52 above). In view of this long period of uncertainty and of the serious consequences of this separation for the applicant and for his family (see paragraph 52 above), the Court considers that the effects of a possible violation of the Convention have not been sufficiently redressed for it to find that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention (see, mutatis mutandis, Polidario v. Switzerland, no. 33169/10, § 58, 30 July 2013). In this connection, it considers that the present case differs from the above-cited Shevanova judgment, in which the applicant, who was subject to an expulsion order, had had her situation regularised several years later, having remained on Latvian territory throughout and having adopted “a manifestly fraudulent attitude”, thus delaying through “her own conduct” the issuing of a permanent residence permit that would have enabled her to maintain her relationship with her adult son and to exercise freely her right to respect for her family life in Latvia. Furthermore, in the present case the applicant’s children were minors and had been separated from him for more than six years; they were in a difficult situation following their flight from the Democratic Republic of Congo, which necessarily entailed serious consequences that their subsequent reunion had not been able to redress sufficiently.
59. Accordingly, the Court rejects the Government’s request to strike the application out under Article 37 § 1 (b) of the Convention.
60. Moreover, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
61. The applicant complained of an abuse of process on account of the allegation that he had committed fraud in breach of public policy – an act capable of amounting to a criminal offence –, which had ended with an acknowledgment, without a word of excuse, of the genuine nature of the family ties that he had established from the outset with the help of the UNHCR. He submitted that the judgment of 3 June 2010 reconstituting his daughter Michelle’s birth certificate could not have come as a surprise to the French authorities, or been a decisive factor in granting all of the requested visas, given that the documents forwarded directly by the UNHCR to the French authorities as far back as 2007 confirmed that the parent-child relationship was genuine. The production of this judgment changed nothing, since, on the one hand, the case file enabling filiation to be proved was fairly convincing, and, on the other, because the decisions to refuse visas to the whole family did not depend on this reconstitution. The applicant pointed out that the urgent-applications judge had held that the criterion of urgency was not met because he had not maintained relationships with his relatives and because the birth certificates of the children Michelle and Benjamin were fraudulent. According to the applicant, this example in itself demonstrated that “the issue was far from being that of re-establishing [the child] Michelle’s filiation”.
62. The applicant argued that the concept of public order relied on in the present case was vague. He considered that the impugned refusal was not in any event necessary, since alternative and less radical solutions could have been taken: a request for additional information from the parties, so that the Ministry of Immigration could have been invited to submit questions to the Cameroonian authorities – including the Yaoundé tribunal de grande instance –, a short-term visa pending the submission of supplementary documents, a DNA test.
63. The Government pointed out that decisions in family reunification cases were required to comply with Article 8 (Conseil d’État, Aykan, 10 April 1992). They alleged that the impugned decision was in accordance with the law, namely section L. 211-1 of the CESEDA... In addition, the authorities had been justified in verifying the authenticity of the civil-status documents submitted to them, under Article 47 of the Civil Code. They further claimed that the national authorities had been pursuing a legitimate aim, that of combatting documentary fraud, which was a threat to public order. According to the Government, the Court had, in this connection, acknowledged that the fact of States exercising their right to control the entry and residence of aliens was an element in ensuring public order. In the present case, the submission of fraudulent documents was a reason of ordre public (public policy) which justified the impugned decision... With regard to the certificate submitted by UNHCR/Cameroon, the Government considered that a document of this sort had no bearing on the checks carried out by the consular authorities. A certificate by that organisation did not amount to evidence of a parent-child relationship, given that it was a document drawn up on the basis of a mere statement, or following the submission of documents in respect of which it was not the UNHCR’s task to verify whether they were authentic.
Lastly, the Government considered that the impugned measure had been proportionate to the aim pursued and struck a fair balance between the competing interests. They drew attention to the margin of appreciation enjoyed by the States in the area of immigration, the fact that the applicant’s situation had been examined on several occasions and that the visas had been issued as soon as the judgment of 3 June 2010 was received.
2. The Court’s assessment
(a) Applicable principles
64. In the context of positive obligations as in that of negative obligations, the State must strike a fair balance between the competing interests of the individual and those of the community as a whole. It enjoys a certain margin of appreciation in this regard (see Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 42, 1 December 2005, and Osman v. Denmark, no. 38058/09, § 54, 14 June 2011).
65. The Court has recognised that, subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. Article 8 does not impose on the Contracting States any general obligation to respect immigrants’ choice of the country of residence and to authorise family reunion in its territory (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Berisha v. Switzerland, no. 948/12, § 49, 30 July 2013).
66. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations 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 of the persons concerned 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 or considerations of public order weighing in favour of exclusion (see Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 39, ECHR 2006‑I, and Antwi and Others v. Norway, no. 26940/10, §§ 88-89, 14 February 2012).
67. Where children are concerned, the national authorities must, in assessing proportionality for the purposes of the Convention, take account of their best interests (see Popov v. France, nos. 39472/07 and 39474/07, § 139, 19 January 2012, and Berisha, cited above, § 51).
68. The Court further reiterates, by way of comparison, that in the event of deportation, aliens benefit from the specific guarantees provided for in Article 1 of Protocol No. 7. Whilst such guarantees with regard to the family life of aliens are not regulated by the Convention under Article 8, which contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, in general, McMichael v. the United Kingdom, 24 February 1995, § 87, Series A no. 307‑B, and, in particular, Cılız v. the Netherlands, no. 29192/95, § 66, ECHR 2000‑VIII, and Saleck Bardi v. Spain, no. 66167/09, § 30, 24 May 2011). In this area, the quality of the decision-making process depends on the speed with which the State takes action (see Ciliz, cited above, § 71; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 82, ECHR 2006‑XI; Saleck Bardi, cited above, § 65; and Nunez v. Norway, no. 55597/09, § 84, 28 June 2011).
69. Lastly, the Court considers it appropriate to reiterate its recent case-law finding that, in respect of the burden of proof for asylum seekers, it has considered that, having regard to the special situation in which they find themselves, it is appropriate in numerous cases to give them the benefit of the doubt when assessing the credibility of their statements and the documents submitted in support thereof. Equally, when information is presented which gives strong reasons to question the veracity of an asylum-seeker’s submissions, the individual must provide a satisfactory explanation for the alleged inaccuracies in those submissions (see F.N. and Others v. Sweden, no. 28774/09, § 67, 18 December 2012). Likewise, the applicant is responsible for providing a satisfactory explanation so as to address any relevant objections as to the authenticity of the documents submitted (see Mo.P. v. France (dec.), no. 55787/09, 30 April 2013).
(b) Application to the present case
70. The Court notes that the applicability of Article 8 of the Convention to the present case is not in dispute between the parties. It further notes that the procedure for family reunification can be broken down into two parts. Once authorisation has been given by the Prefect, the family members concerned are required to obtain an entry visa to France; the issuing of such visas is not automatic, since it is subject to the requirements of the maintenance of public order. The Court therefore considers that the disputed refusal to issue the visas does not amount to an “interference” in the applicant’s exercise of his right to respect for his family life, but that the case concerns an alleged failure on the part of the respondent State to comply with a “positive obligation”.
71. According to the applicant, the decision-making process which led the national authorities to refuse initially to issue visas to the members of his family had not guaranteed the protection of his interests. He pointed out, in particular, the failure to take account of both his refugee status and the urgency of examining carefully the visa applications. The Government submitted that the impugned refusal was based on public-order considerations which had been verified at several stages of the procedure in line with the State’s margin of appreciation in this area, before the applicant submitted the judgment reconstituting the birth certificate for his daughter Michelle.
72. The Court accepts that the national authorities are faced with a delicate task when having to assess the authenticity of civil-status documents, on account of the difficulties that arise in some cases from failings on the part of the civil-status authorities in certain countries from which migrants originate, and the associated risks of fraud. The national authorities are, in principle, best placed to assess the facts on the basis of the evidence gathered by or submitted to them (see Z.M. v. France, no. 40042/11, § 60, 14 November 2013) and they must therefore be allowed a measure of discretion in this regard. This was the conclusion of the French Constitutional Council, for which the right of aliens – who are stably and regularly resident in France – to bring to the country their minor children and their spouse is subject to a procedure for checking civil-status documents, something that can prove difficult and time-consuming... The Court cannot but observe that, in the present case, the consular authority noted that the applicant’s wife had submitted a false document in respect of their daughter Michelle, although it cannot be excluded that she was unaware of its fraudulent nature (see paragraph 34 above), and that the national courts decided that this circumstance was sufficient to justify the refusal to issue all of the requested visas.
73. However, the Court considers that, in view of the decision taken some months previously to grant the applicant refugee status, and the subsequent recognition of the principle that he was entitled to family reunification, it was of crucial importance that the visa applications be examined promptly, attentively and with particular diligence. It is not the Court’s task to take the place of the competent authorities in examining whether or not the civil-status certificates submitted in support of the request for family reunification were fraudulent within the meaning of Article 47 of the Civil Code. However, the Court is competent to ascertain whether the domestic courts, in applying and interpreting the provisions of that provision, secured the guarantees set forth in Article 8 of the Convention, taking into account the applicant’s refugee status and the protection of his interests protected by it. In this connection, it considers that, in the circumstances of the present case, the respondent State was under an obligation, in order to respond to the applicant’s request, to institute a procedure that took into account the events that had disrupted and disturbed his family life and had led to his being granted refugee status. The Court will therefore concentrate its assessment on the quality of this procedure and focus its attention on the “procedural requirements” of Article 8 of the Convention (see paragraph 68 above).
74. In this connection, the Court observes that the applicant’s family life had been discontinued purely as a result of his decision to flee his country of origin, out of a genuine fear of persecution within the meaning of the 1951 Geneva Convention (see Mayeka and Kaniki Mitunga, cited above, § 75, and Tuquabo‑Tekle and Others, cited above, § 47). Accordingly, and contrary to what was consistently asserted by the relevant ministry throughout the interlocutory proceedings and the proceedings on the merits (see paragraphs 21 and 22 above), and until the communication of the application to the respondent Government, the applicant could not be held responsible for the separation from his family. The arrival of his wife and children, who were aged three, six and thirteen at the time of the request for family reunification and were themselves refugees in a third country, was thus the only means by which family life could resume.
75. The Court reiterates that the family unity is an essential right of refugees and that family reunion is an essential element in enabling persons who have fled persecution to resume a normal life (see the UNHCR’s remit...). It further reiterates that it has held that obtaining such international protection constitutes evidence of the vulnerability of the parties concerned (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 155, ECHR 2012). In this connection, it notes that there exists a consensus at international and European level on the need for refugees to benefit from a family reunification procedure that is more favourable than that foreseen for other aliens, as evidenced by the remit and the activities of the UNHCR and the standards set out in Directive 2003/86 EC of the European Union .... In this context, the Court considers that it was essential for the national authorities to take account of the applicant’s vulnerability and his particularly difficult personal history, to pay close attention to his arguments of relevance to the outcome of the dispute, to inform him of the reasons preventing family reunification, and, lastly, to take a rapid decision on the visa applications.
76. From this perspective, the Court considers it relevant to take account of the standards set out in the international instruments in this area and to bear in mind the recommendations of non-governmental organisations (NGOs) specialising in the rights of aliens. Thus and before further examination of the merits, it observes that the International Convention on the Rights of the Child recommends that applications for family reunification be examined in a flexible and human manner. It attaches importance to the fact that the Council of Europe’s Committee of Ministers and its Human Rights Commissioner have supported and clarified this objective... With regard to forms of evidence, it notes in Directive 2003/86/EC of the European Union ... and in various texts issued by international sources and NGOs that national authorities are encouraged to take into consideration “other evidence” of the existence of family ties if the refugee is unable to provide official supporting documents. The UNHCR, the Council of Europe and the NGOs have concurred in drawing attention to the importance of broadening these forms of evidence; ... and the Cimade has expressed the hope that the relevant French authorities would take account of documents serving as civil-status documents issued by the OFPRA, and those already verified by that Office .... Lastly, it is important to note that several reports have criticised the practices preventing family reunification, on account of the excessive length and complexity of the procedure for issuing visas; they have emphasised the need to shorten the procedure by showing greater flexibility in respect of the requirements regarding the evidence attesting to family ties ....
77. In the present case, the course of the contested proceedings, as described above, may be summarised as follows:
(a) The applicant made his first application for family reunification in June 2007 and the agreement in principle was given on 13 February 2008, eight months later. His family was then summoned to the French Consulate in Yaoundé, which launched a verification procedure about which the applicant was not informed. Without news of the outcome of his application, and unaware of the obstacles to the issuing of the visas, the latter lodged an appeal against the implied decision of rejection, to which the Appeals Board did not reply. It was only at the hearing on the urgent application for a stay of execution, in September 2008, that the applicant learnt of the pleadings filed by the Minister of Immigration contesting the birth certificates of his children Michelle and Benjamin.
(b) Following a suggestion apparently made by the public rapporteur at the hearing held by the Conseil d’État on 20 May 2009 on an application for judicial review brought by the applicant, the latter’s wife applied to the Yaoundé tribunal de grande instance for judicial rectification of their daughter Michelle’s birth certificate.
(c) Faced with the dismissal of his appeal by the Conseil d’État in July 2009, the applicant submitted a second application for family reunification. This was also dismissed, without reasons, in April 2010 and the Appeals Board did not reply to the appeal lodged by him.
(d) Following further checks carried out in 2010, more than two years after the application for family reunification, it proved possible to authenticate Benjamin’s birth certificate, as the Government accepted (see paragraph 31 above).
(e) After communication of the application to the Government by the Court, on 21 September 2010 the applicant obtained an order from the urgent-application’s judge in which the latter stated that “having regard to the length of time that the applicant has been separated from his family, the criterion of urgency is met”, and directed the Minister to re-examine the visa application.
(f) On 19 November 2010 UNHCR/Cameroon’s lawyer forwarded the judgment reconstituting the birth certificate of the applicant’s daughter, and the consular authorities issued the visas one month later.
78. Against this background, the Court notes that in the absence of the explanations and reasons which were nonetheless required by law ..., the applicant was not in a position to understand the precise objections to his plan until September 2008, that is, fifteen months after his first application for family reunification. It also notes that the competent authorities, who were aware of the proceedings before the Cameroonian courts seeking the reconstitution of Michelle’s birth certificate (see paragraph 24 above), did not see fit to enquire as to the progress of those proceedings when refusing to issue the visas for the second time (see paragraph 32 below). Lastly, following further checks in 2010, they eventually found that the parent-child bond with his son Benjamin had been established, although it had been contested in the same way as the relationship with his daughter Michelle (see paragraphs 21, 24 and 31 above).
79. The Court further observes the difficulties encountered by the applicant when seeking to participate effectively in the proceedings and in putting forward the “other evidence” establishing family ties. Yet the applicant had declared his family ties from the start of his asylum application, and immediately after his reunification application the OFPRA had certified the family composition in documents that were deemed to be authentic (see paragraphs 8, 12, 28... above). Furthermore, the Court attaches importance to the fact that the UNHCR, convinced of the authenticity of their case, had assisted the applicant and later his family from the time of their flight from the Democratic Republic of Congo until the conclusion of the proceedings (see the numerous documents in paragraphs 22 and 23 and paragraph 28 above; see also, mutatis mutandis, Mayeka and Kaniki Mitunga, cited above, § 82). The Cameroonian Ministry of Foreign Affairs had also approved his wife’s travel papers, which specified that she was accompanied by her three children (see paragraph 10 above) and subsequently approved Michelle’s travel papers (see paragraph 22 above). Finally, the applicant had adduced other evidence proving that he had maintained contacts with his family (see paragraph 22 above). The Court considers that this evidence was not without relevance; the applicant could reasonably have expected that it would be seen as attesting to his past family life and that the national authorities would give it due consideration.
80. Lastly, the Court notes that it took almost three and a half years for the national authorities to cease contesting the parent-child relationship between the applicant and his children. This lapse of time was excessive, having regard to the applicant’s specific situation and what was at stake for him in the verification procedure.
81. All of the above considerations reveal the agonising and apparently hopeless situation in which the applicant found himself. The Court notes that the accumulation and protracted nature of the numerous hurdles encountered in the course of the proceedings by the applicant – who had already been subject to traumatic experiences which justified the granting of refugee status (see paragraph 26 above) – have left him in a state of severe depression.
82. Having regard to the foregoing, and notwithstanding the margin of appreciation left to the respondent State in this area, the Court considers that the national authorities did not give due consideration to the applicant’s specific situation, and concludes that the decision-making process did not offer the guarantees of flexibility, promptness and effectiveness required in order to secure his right to respect for family life under Article 8 of the Convention. Accordingly, the State has failed to strike a fair balance between the applicant’s interests on the one hand and its own interest in controlling immigration on the other.
There has therefore been a violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
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2. Holds, that there has been a violation of Article 8 of the Convention;
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Done in French, and notified in writing on 10 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia WesterdiekMark Villiger
RegistrarPresident
Full & Egal Universal Law Academy