Communicated on 26 June 2018
THIRD SECTION
Application no. 57614/17
Philippe FRISON
against Russia
lodged on 4 August 2017
STATEMENT OF FACTS
The applicant, Mr Philippe Frison, is a French national, who was born in 1960 and lives in Strasbourg, France.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
1. The applicant’s request for a temporary residence permit
The applicant works as a university teacher and a translator at the Council of Europe, and resides in Strasbourg, France. At some point prior to 2015, he met a Russian national Ms E.G., who resided in Nizhniy Novgorod. On 5 December 2015 the applicant and Ms E.G. married in Strasbourg. After that Ms E.G. returned to Russia where she resided and worked.
On 20 June 2016 the applicant applied to the Russian Consulate General in Strasbourg for a temporary residence permit in Russia for the family reunification.
On 6 December 2016 the Department of Migration of the Ministry of the Interior in Nizhniy Novgorod (the Department of Migration) informed the applicant that on 24 October 2016 the Federal Migration Service (the FMS) had refused his request for the residence permit on the basis of Article 7 § 1(1) of the Foreigners Act (no. 115 FZ) that is that the applicant posed threat to Russia’s national security. Neither a copy of that decision nor the reasons thereof were given to the applicant.
On 27 March 2017 the applicant and his wife had a daughter E.F. who was born in Nizhniy Novgorod.
2. The applicant’s appeals against the refusal to grant the residence permit
On 7 December 2016 the applicant appealed the above refusal of 24 October 2016 to the Priokskiy District Court in Nizhniy Novgorod (the District Court). He stated that according to the text of the refusal, he posed threat to Russia’s national security, but no reasons had been given. The applicant stated that prior to the refusal he had been regularly granted visas to enter the Russian Federation, that he had never been involved in activities of either state or political bodies, that he worked as a translator and a university teacher. The applicant stressed that the refusal to grant him the residence permit to reside in Russia with his wife violated his right to respect for family life under Article 8 of the Convention.
On 11 January 2017 the District Court examined the applicant’s complaint. At the hearing the applicant’s lawyer stated, inter alia, that the applicant had been granted visas to enter Russia as of 1997 as he spoke Russian and appreciated Russian culture. Since his marriage to Ms E.G. in 2015 he had regularly applied for the Russian visa and visited the country to visit his wife. The applicant had not been involved in any type of activity, which could have posed threat to Russia’s national security. The refusal to grant him the temporary residence permit did not state any reasons or explanations of the applicant’s alleged risk to the national security. Given that the applicant’s wife resided in Russia, that he spoke Russian and that they were expecting a child, the applicant requested that the refusal be overruled and he be granted the residence permit.
At the hearing the representative of the Department of Migration stated that the refusal to grant the applicant temporary residence permit had been based on the letter of 24 September 2016 from the Nizhniy Novgorod Department of the Federal Security Service (the FSB), which stated that the applicant had posed threat to Russia’s national security. Given that the approval of the FSB for the issuance of a residence permit was compulsory for the migration authorities, the applicant’s request for the residence permit had been rejected.
On the same date, 11 January 2017 the District Court rejected the applicant’s complaint. The court’s decision did not cite any documents from the FSB as serving as the basis for the refusal, apart from noting that the measure had been imposed on the basis of letter of 24 September 2016 no. 106/1013163 and the relevant internal instructions of the FSB. No information concerning the contents of that letter, the nature of the threat allegedly posed by the applicant or any details regarding its origins or the circumstances of its collection was provided. The court noted that the appropriate procedure had been followed and stated that:
“... the FSB is the competent body to ensure security of the Russian Federation and it has the right to assess activities of a foreign national ...
The charter of the Department of Migration of the Ministry of the Interior in the Nizhniy Novgorod no. 427 of 30 May 2017 does not provide the migration authority with such a competence as verification of the correctness and the grounds of decisions of the Federal Security Service. Having received information that a foreign national poses threat ... the Department of Migration of the Ministry of the Interior in the Nizhniy Novgorod issued well-founded refusal to grant Mr Frison the permission for temporary residence in the Russian Federation ...”
As to whether the refusal to grant the residence permit amounted to an interference with the applicant’s family life, the court left that issue without examination.
On 22 January 2017 the applicant appealed the above decision to the Nizhniy Novgorod Regional Court (the Regional Court). The applicant stressed, inter alia, that the first instance court had failed to verify whether there had been basis for the alleged risk he posed to Russia’s national security. In particular, the court had refused his representative’s motion to request and examine the FSB letter which served as the basis for the refusal and it failed to analyse the adverse effect of the refusal on the applicant’s family life. The applicant also stated that in March 2017 he and his wife had a daughter and explained that the time-limits and restrictions of the Russian visa precluded him from having normal life with his wife and daughter. In particular, he stated that a stay in Russia based on visa comprised 90 days at a time at the most, the visa could not be extended for more than 10 days at a time and each time he had been obliged to leave Russia and re-apply for the visa from abroad. Issuance of a new visa comprised at least a month and having the visa status precluded him from working in Russia.
On 3 May 2017 the Regional Court examined the applicant’s appeal and upheld the decision of the District Court, having stated, amongst other things, the following:
“... from reply of the Nizhniy Novgorod Regional Department of the Federal Security Service of 24 September 2016 no. 106/10/13163 it follows that there is information in respect of the applicant which provides basis for the refusal to grant him the temporary residence permit... There are no grounds to cast doubt on this decision of the FSB which has the right to assess respective activities of foreign nationals and conclude whether they represent threat to national security...
The impugned decision of 24 October 2016 does not preclude the applicant from lodging another request for temporary residence permit in one year or later from the date of the refusal ...
The court at the same time takes into account that the applicant resides in France, where he has real estate and permanent job and that therefore he objectively cannot permanently be present in Russia. No decision on undesirability of his presence in the country has been taken; therefore, he could reside with his family on the basis of visa. There are no obstacles for him to cohabit with wife and child, who are Russian nationals, in France ...”
On 12 July 2017 the applicant lodged cassation appeal against the refusal with the Presidium of the Regional Court. He stated, in particular, that the lower courts had failed to request the necessary evidence and information from the FSB, which served as the basis for the refusal and could have shown the actual reasons for his alleged threat to Russia’s national security. He also stated that the courts violated his right to respect for family life under Article 8 of the Convention by failing to duly examine the actual reasons for the refusal and assessing its interference with his family life. He further stated that despite the failure to verity the actual basis of the security allegations against him, the second instance court had added new facts into its appellate decision having referred, unlike the District Court, to the applicant’s permanent residence in France, his home and job and that there were no obstacles for his wife and child to reside with him in that country. The applicant stressed that that refusal precluded him from having normal family life with his wife and daughter.
On 20 July 2017 the Regional Court refused to allow the applicant’s appeal to be examined on the merits by the cassation court. It found that the applicant’s appeal was unsubstantiated, having stated, in particular, that “the volume of evidence presented before the court was duly examined”. As for the applicant’s claim of the lack of concrete evidence showing his alleged threat to the national security, the court stated as follows:
“... those allegations were rightly left without attention by the court as the right to assess activities of foreign nationals and stateless persons as those representing threat to the defence capacity, public order or protection of the population’s health belongs to the Federal Security Service of the Russian Federation.
Given that the Nizhniy Novgorod Department of the FSB is not obliged to show and inform the initiators of information requests about the concrete basis for not issuing a temporary residence permit, it does not demonstrate unlawfulness of the decision taken.
Taking the above into consideration, the complaint concerning the court’s failure to examine the reasons for the refusal to grant temporary residence permit should be rejected ...”
On 4 August 2017 the applicant lodged further cassation appeal against the refusal with the Russia Supreme Court (the Supreme Court).
On 29 November 2017 the Supreme Court refused to examine the appeal on the merits having found that the lower courts had properly reasoned their decisions and that no violation of the applicant’s right warranting a new examination were established.
B. Relevant domestic law
Until 2002 temporary resident foreign nationals were not required to apply for a residence permit. Their presence in Russia was lawful as long as their visa remained valid. On 25 July 2002 Law no. 115-FZ on Legal Status of Foreign Nationals in the Russian Federation (“the Foreingers Act”) was passed. It introduced the requirement of residence permits for foreign nationals.
A foreign national married to a Russian national living on Russian territory is entitled to a three-year residence permit (section 6 §§ 1 and 3 (4)).
A three-year residence permit (“разрешение на временное проживание”) may be refused only in exhaustively defined cases, particularly if the foreign national advocates a violent change to the constitutional foundations of the Russian Federation or otherwise creates a threat to the security of the Russian Federation or its citizens (section 7 § 1 (1)). Nor may a three-year residence permit be issued during the five‑year period following a person’s administrative removal or deportation from Russia (section 7 § 1 (3)).
The local department of the Federal Migration Service examines an application for a three-year residence permit within six months. It collects information from the security services, the bailiffs’ offices, tax authorities, social security services, health authorities and other interested bodies. Those bodies must, within two months, submit information about any circumstances within their knowledge which might warrant refusal of a residence permit. After receipt of such information the local department of the Federal Migration Service or the local police department decides whether to grant or reject the application for a three-year residence permit (section 6 §§ 4 and 5).
During the validity of the three-year residence permit a foreign national may apply for a renewable five-year residence permit (“вид на жительство”). Such application is possible only after the foreign national has lived in Russia for at least a year on the basis of a three-year residence permit (section 8 §§ 1-3).
COMPLAINTS
The applicant complains under Article 8 of the Convention that the Russian authorities’ refusal to grant him a temporary residence permit violated his right to respect for family life as it was based on undisclosed information and that the domestic courts failed to duly assess its adverse effect on his family life.
QUESTIONS TO THE PARTIES
1. What were the motives and factual grounds for the refusal to grant the applicant’s request for a temporary residence permit in Russia (the refusal)? The Government are requested to produce a copy of the materials from the Federal Security Service which served as the basis for that decision, including the letter of 24 September 2016 no. 106/10/13163 to the Department of Migration of the Ministry of the Interior in Nizhniy Novgorod. The Court notes that access to those documents may be restricted pursuant to Rule 33 §§ 1 and 2 of the Rules of Court.
2. What was the scope of review of the domestic courts, which examined the applicant’s appeal against the refusal of the request for a temporary residence permit? Was the judicial review limited to ascertaining whether the refusal had been delivered in accordance with the procedure prescribed by law and, in particular, whether the material which formed its basis had been issued within the competence of the Federal Security Service? Was it within the courts’ competence to verify whether the refusal was based on genuine national security grounds and whether the executive was able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant presented a risk in that regard? Did the courts make a balancing exercise between the need to protect national security and the applicant’s right to respect for his family life?
3. Was the classified information from the Federal Security Service disclosed to the applicant or his representative? Was the applicant given a fair and reasonable opportunity to refute the facts and findings contained in that material? In particular, did the courts examine other pieces of evidence to confirm or refute the allegations against the applicant? Did the applicant have an opportunity to have witnesses questioned or present other evidence?
4. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention, as alleged by the applicant?
5. The Government are requested to provide a copy of the documents pertaining to the reasons for the refusal of the applicant’s request for a residence permit in Russia.
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