AS TO THE ADMISSIBILITY OF
Application No. 31411/96
by Naksije FEHRATI
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, 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 26 March 1996 by
Naksije FEHRATI against Austria and registered on 7 May 1996 under file
No. 31411/96;
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 citizen of the former Yugoslav Republic of
Macedonia, born in 1975. In the proceedings before the Commission she
is represented by Mr. W. Lenneis, a lawyer practising in Vienna.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
On 30 December 1993 the applicant married her husband, who lives
in Austria and has a residence and working permit. In April 1994 a son
was born to them.
In December 1994 the applicant arrived in Austria. At that time
she did not have a residence permit (Aufenthaltsbewilligung) under the
Aliens Residence Act (Aufenthaltsgesetz), which is necessary for
settling down in Austria.
On 17 May 1995 the applicant, represented by her husband, filed
a request for a residence permit with the Austrian Consulate in
Bratislava (Slovak Republic).
On 7 June 1995 the Vienna Regional Governor (Landeshauptmann),
to whom the request had been referred, dismissed her request. He found
that, having regard to the annual quota system for the issuing of
residence permits and the fact that the quota for 1995 had been
exhausted, the applicant did not yet fulfil the criteria for a priority
case. A residence permit could therefore not be granted.
On 25 September 1995 the Federal Minister for Internal Affairs
(Bundesmister für Inneres) dismissed the applicant's appeal against the
Regional Governor's decision. The Minister found that the applicant
had not made her request for a residence permit, as required by the
Aliens Residence Art, from abroad and before she had entered Austria.
Her request had therefore to be dismissed on this ground. The good
administration of immigration rules made it indispensable that requests
for a residence permit be made before entering Austria.
On 10 November 1995 the applicant filed a complaint with the
Constitutional Court (Verfassungsgerichtshof) in which she complained
that the refusal of a residence permit violated her right to respect
for her family life as guaranteed by Article 8 of the Convention. She
also requested that suspensive effect be granted to her complaint.
On 19 December 1995 the Constitutional Court refused to grant
suspensive effect, as it found that the decision complained of was not
one which could be enforced.
On 27 February 1996 the Constitutional Court declined to deal
with the applicant's complaint and remitted the case to the
Administrative Court (Verwaltungsgerichtshof).
It appears that until now no residence prohibition
(Aufenthaltsverbot) or deportation order (Ausweisungsbescheid) have
been issued against the applicant or that other measures for her
removal from Austria have been taken.
COMPLAINTS
The applicant complains that the refusal by the Constitutional
court to grant suspensive effect to her complaint against the decision
of the Federal Minister for Internal Affairs violates her right to
respect for her family life as guaranteed by Article 8 of the
convention, as it exposed her to the risk of being expelled to her
country of origin.
THE LAW
The applicant complains about the refusal by the Constitutional
Court to grant suspensive effect to a complaint lodged by her which
concerns the refusal of a residence permit. She relies on Article 8
(Art. 8) of the Convention, which guarantees to everyone "the right to
respect for his private and family life, his home and his
correspondence".
The Commission recalls that no right of an alien to enter or to
reside in a particular country, nor a right not to be expelled from a
particular country, is as such guaranteed by the Convention
(see No. 12461/86, Dec. 10.12.86, D.R. 51 pp. 258, 264). However, in
view of the right to respect for private and family life ensured by
Article 8 (Art. 8) of the Convention, the exclusion of a person from
a country in which his immediate family resides may raise an issue
under this provision of the Convention (see Eur. Court HR, Moustaquim
v. Belgium judgment of 18 February 1991, Series A no. 193, p. 18, para.
36; No. 13654/88, Dec. 8.9.88, D.R. 57 pp. 287, 289).
Nevertheless, an applicant can only claim to be a victim of an
alleged violation of Article 3 (Art. 3) of the Convention, or, as in
the instant case, of Article 8 (Art. 8), within the meaning of Article
25 para. 1 (Art. 25-1) if an expulsion order has been made against him,
the mere refusal or annulment of a residence permit not being
sufficient to meet this requirement (Eur. Court HR, Vijayanathan and
Pusparajah v. France judgment of 27 August 1992, Series A no. 241-B,
p. 87, para. 46; No. 27646/95, Dec. 16.1.96, unpublished; No. 28604/95,
Dec. 26.2.96, unpublished).
In the present case, the Vienna Regional Governor merely refused
to issue the applicant a residence permit. The applicant does not
submit that a residence prohibition or deportation order had been
issued against her or that any other measure aimed at her removal from
Austria has been taken.
In these circumstances the applicant cannot claim to be a victim
of an alleged violation of Article 8 (Art. 8) of the Convention in
respect of the refusal of a residence permit.
It follows that the application is 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.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy