AS TO THE ADMISSIBILITY OF
Application No. 33758/96
by Hanna ESHAK
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 September 1996
by Hanna Eshak against Sweden and registered on 13 November 1996 under
file No. 33758/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Syrian citizen born in 1967. Before the
Commission he is represented by his lawyer, Mr Michel Barmoro,
Södertälje.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 10 July 1994 the applicant married M.M., a Swedish citizen
resident in Sweden. Their daughter, S, was born on 9 April 1995. On
10 April 1995 the applicant was granted a temporary permit to reside
in Sweden until 10 October 1995 on account of his family ties. He
arrived in Sweden on 20 April 1995 and settled with his wife and
daughter.
On 20 May 1995 the applicant and M.M. separated, following which
M.M. did not allow the applicant to see S.
By a provisional decision of 7 September 1995, the District Court
(tingsrätten) of Motala granted M.M. custody of S and ordered the
social authorities to investigate the question of access.
On 15 December 1995 the National Immigration Board (Statens
invandrarverk) rejected the applicant's request, lodged in August 1995,
for an extension of his residence permit. The Board considered that
he no longer had family ties which could constitute a reason for
allowing him to reside in Sweden. The Board accordingly ordered his
expulsion and further issued a prohibition on return valid for two
years.
The applicant and M.M. were divorced on 7 February 1996.
After the social authorities had presented their report on the
access question in April 1996, the District Court, by judgment of
31 May 1996, awarded the applicant access to S every Monday as from
10 June 1996 between 10 and 12 a.m. in the presence of a so-called
contact person (kontaktperson) appointed by the social authorities.
Custody remained with M.M. The court noted that it had not yet been
decided whether the applicant would be allowed to remain in Sweden and
recalled that he or M.M. could request that access be regulated in a
different manner when that decision had been taken. No appeal was made
against the judgment.
Following the social authorities' appointment of a contact
person, the applicant met S on two or three occasions in August and
September 1996, starting on 12 August. Thereafter, M.M. allegedly
refused to cooperate and, as a result, no further meetings took place.
On 9 September 1996 the Aliens Appeals Board (Utlänningsnämnden)
upheld the Immigration Board's decision save for the prohibition on
return, which was revoked due to the circumstances of the case. The
Appeals Board considered that the applicant's relationship with his
daughter, whom he had not seen between 20 May 1995 and 12 August 1996,
did not constitute a sufficient ground for granting him a residence
permit.
On 15 November 1996 the applicant, using a false Swedish
passport, left Sweden for the United Kingdom with the intention of
travelling further to Canada from where he planned to apply for a
permit to reside in Sweden. However, he was returned to Sweden by the
United Kingdom authorities.
Upon arrival in Sweden, the applicant lodged a new application
for a residence permit. On 18 November 1996 the National Immigration
Board stayed the enforcement of the expulsion order. It referred the
new application to the Aliens Appeals Board.
Before the Aliens Appeals Board, the applicant stated that he had
been living with a woman, K.Z., in Sweden since May 1996 and that they
had married on 27 April 1997. He further referred to his daughter and
stated that he intended to apply to the courts for regular access to
her. He considered that the award of such access depended on his being
granted a residence permit. He further claimed that the expulsion
order, in practice, prevented him from seeing his daughter.
On 6 May 1997 the Aliens Appeals Board rejected the new
application, finding that the applicant's relationships with his
daughter and his new wife were not sufficient reasons for granting him
a residence permit. Before taking its decision, the Board had
investigated the relationship between the applicant and his daughter
and had found that they had only met on a few occasions for a short
period of time. The meetings had not worked out well. According to
a certificate issued by a chief physician, it would be very unfortunate
for the daughter if the applicant was given a right of access to her,
as there was a risk of her sustaining permanent mental injury. Given
the opportunity to comment on the Board's investigation, the applicant
had said that, at the last meeting between him and his daughter, she
had been crying as her mother had not been present. However, the
applicant had further stated that the chief physician was M.M.'s cousin
and that his statements appeared to be highly exaggerated.
The applicant is presently in hiding in Sweden. He claims that
he cannot meet his daughter as he risks being expelled.
COMPLAINTS
1. Under Article 8 of the Convention, the applicant claims that his
expulsion would fail to respect his family life, as he would be
separated from his daughter.
2. Without invoking any further Articles, the applicant also
contends that he does not have recourse to any effective remedies.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 September 1996. The
applicant requested the Commission to petition the respondent
Government to stay his expulsion.
On 23 September 1996 the President of the Commission decided not
to indicate to the Government, pursuant to Rule 36 of the Commission's
Rules of Procedure, the measure suggested by the applicant.
Following further correspondence with the applicant, the
application was registered on 13 November 1996.
THE LAW
1. The applicant claims that his expulsion would fail to respect his
family life, as he would be separated from his daughter. He maintains
that he has shown a strong desire to see his daughter but that their
meetings have been obstructed by M.M. He contends that he does not
have sufficient means to travel to Sweden to see the daughter.
Further, M.M.'s attempts at obstructing his access to the daughter
could, in practice, prevent his obtaining an entry visa for Sweden.
The applicant invokes Article 8 (Art. 8) of the Convention which
provides the following:
"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."
The Commission recalls that no right of an alien to enter or to
reside in a particular country is as such guaranteed by the Convention.
However, the expulsion of a person from a country in which close
members of his family live may amount to an unjustified interference
with his right to respect for his family life as guaranteed by
Article 8 (Art. 8) of the Convention (cf., e.g., Eur. Court HR,
Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193,
pp. 19-20, paras. 43-46).
Noting that the applicant lived with his daughter for one month
before he and M.M. separated in May 1995 and that he met the daughter
on a few occasions in August and September 1996, the Commission
considers that the applicant's expulsion could be considered as an
interference with his right to respect for his family life under
Article 8 para. 1 (Art. 8-1). It is therefore necessary to ascertain
whether the expulsion would satisfy the conditions of Article 8 para.
2 (Art. 8-2).
It has not been contested that the expulsion order was issued "in
accordance with the law". The Commission considers that the
enforcement of the order would pursue a legitimate aim under Article 8
para. 2 (Art. 8-2), namely the protection of the economic well-being
of the country.
As regards the question whether the intended expulsion is
"necessary in a democratic society", the Commission recalls that the
Aliens Appeals Board investigated the relationship between the
applicant and his daughter. The applicant did not see his daughter for
more than a year before a few meetings took place in August and
September 1996. It appears that these meetings did not work out well.
Thereafter, the applicant has not met his daughter. Thus,
notwithstanding the alleged attempts by M.M. to obstruct the
applicant's access to his daughter, the Commission considers that the
ties between the applicant and the daughter are rather tenuous.
Apparently, the few meetings that have taken place have been upsetting
for the daughter.
In view of the above and taking into account the margin of
appreciation left to the Contracting States, the Commission concludes
that the Swedish authorities have not failed to fulfil their obligation
to strike a fair balance between the relevant interests. Thus, the
interference with the applicant's right to respect for his family life
is justified under Article 8 para. 2 (Art. 8-2) of the Convention in
that it can reasonably be considered necessary in the interests of the
economic well-being of the country.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also contends that he does not have recourse to any
effective remedies. The Commission considers that this complaint falls
to be considered under Article 13 (Art. 13) of the Convention which
reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
Having regard to its findings under Article 8 (Art. 8) of the
Convention, the Commission considers that the applicant does not have
an "arguable claim" of a violation of the Convention. In any event,
the applicant's family ties were considered by the Swedish authorities
in connection with the expulsion proceedings. The applicant thus did
have an effective remedy before a national authority in relation to his
complaint under Article 8 (Art. 8). Article 13 (Art. 13) cannot be
understood as guaranteeing a successful outcome of the remedy in
question.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy