FIFTH SECTION
DECISION
Application no. 80545/12
Meley GIRMAY
against Sweden
The European Court of Human Rights (Fifth Section), sitting on 8 July 2014, as a Committee composed of:
Boštjan M. Zupančič, President,
Ann Power-Forde,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 12 October 2012,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and fact that this measure has been complied with,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Miss Meley Girmay, is an Ethiopian national, who was born in 1996 and lives in Stockholm. She was represented before the Court by Mr J. Södergren, a lawyer practising in Stockholm.
The Swedish Government (“the Government”) were represented by their Agent, Ms J. Sjöstrand, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In April 2008, the applicant was granted a temporary residence permit in Sweden, as the child of A, who had been granted a temporary residence permit on the basis of family ties to his wife, Y, who lived in Sweden. In July 2008, the applicant and A arrived in Sweden and settled with Y.
In March 2010, the applicant and A lodged an application with the Migration Board (Migrationsverket) to have their residence permits extended. Due to doubts about the authenticity of the applicant’s birth certificate, a paternity investigation, including a DNA-test, was carried out which revealed that A was not the applicant’s biological father.
The applicant then applied for a residence permit in Sweden on the basis of her substantial connection to Sweden and the particularly distressing circumstances of her case. She had never had much contact with her mother and always lived with A. She and A had always believed they were father and daughter and she did not want to be separated from him since he was her closest family member.
On 17 October 2011, the Migration Board rejected the application. It noted that, since A was not the applicant’s father, the family ties relied on, on which the initial decision to grant the applicant a temporary residence permit had been based, had never existed. The Board then considered that the applicant had lived her entire life in Ethiopia before coming to Sweden, and that the applicant’s mother, the only parent known to the Board, still lived there. It would therefore be in the applicant’s best interest to reunite with her mother in Ethiopia, a country to which she had a stronger connection than Sweden, even considering that she had integrated well into Swedish society and had a strong relationship with A.
The applicant appealed to the Migration Court (Migrationsdomstolen) which, on 23 March 2012, upheld the Board’s decision in full. Two lay judges were of a dissenting opinion and considered that the applicant should be granted a permanent residence permit in Sweden on the basis of the particular reasons in the case.
On 14 June 2012, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal.
On 1 September 2013 the applicant requested the Migration Board to stay the enforcement of the expulsion order and grant her a new examination of her case since A had been granted a permanent residence permit on the basis of his marriage to Y.
The request to stay the removal order was rejected by the Migration Board on 2 September 2013 and, on 27 September 2013, it found that no new circumstances had been invoked which could alter its previous decision.
By decision of 18 February 2014, following the communication of the present application, the Migration Board granted the applicant a permanent residence permit in Sweden. It took into account as a new circumstance that the applicant had turned 18 years old and become an adult. Moreover, she had lived with A and Y for around six years and the Board considered that she had created such particularly strong social and cultural links to Sweden that expulsion to Ethiopia was no longer proportional to the intrusion that it would entail into her private life. In reaching its decision, it had special regard to Article 8 of the Convention.
COMPLAINT
The applicant complained under Article 8 of the Convention that the right to respect for her family and private life had been violated by the national authorities’ decision to expel her and thus not allow her to remain in Sweden with A.
THE LAW
In her observations submitted on 21 April 2014, the applicant informed the Court that, on 18 February 2014, the Migration Board had granted her a permanent residence permit in Sweden. However, she wished to pursue her application before the Court since, in her view, she was still a victim of a violation under Article 8 because she had lived for more than two years under the threat of being expelled, which had caused her stress and anxiety. She considered that the Swedish authorities had mishandled her case, refusing her an effective remedy under Article 13 of the Convention, and she wanted compensation and reimbursement for cost and expenses, both in the national proceedings concerning the stay of the removal order and before the Court.
The respondent Government invited the Court to strike the application out of its list of cases, as it was clear that the applicant no longer risked being expelled to Ethiopia. Thus, in their view the case had been resolved and the applicant could no longer claim to be a victim.
The Court notes that the applicant no longer risks being expelled to Ethiopia as she has been granted a permanent residence permit and thus will be able to remain with A in Sweden. Their family life will consequently not be ruptured.
In the above circumstances, the Court finds that the matter under Article 8 must be considered to have been resolved, within the meaning of Article 37 § 1 (b) of the Convention. Furthermore, the applicant’s new complaint under Article 13 of the Convention does not raise an issue under the Convention since the Migration Board and the Migration Court considered her case on the merits. Consequently, pursuant to Article 37 § 1 (c), it is no longer justified to continue the examination of the application. Moreover, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the complaint.
Accordingly, it is appropriate to strike the application out of the Court’s list of cases. Therefore the application of Rule 39 of the Rules of Court comes to an end.
In so far as concerns the applicant’s claim for compensation, the Court reiterates that Article 41 of the Convention allows it to award just satisfaction to the “injured party” only if it has previously “[found] that there has been a violation of the Convention or the Protocols thereto” (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 132, ECHR 2007‑I). Since this is not the case in the present application, no compensation can be granted.
Moreover, under Rule 43 § 4 of the Rules of Court, it is at the discretion of the Court to decide whether or not costs should be compensated. In this regard, the Court notes that the costs before the national authorities in the proceedings for the extension of the applicant’s residence permit were covered by the State. It was only in the proceedings before the Migration Board, concerning a stay of the enforcement of the expulsion order, that the applicant’s costs were not covered. Furthermore, the Court observes that the applicant did not apply to the Court for legal aid even though information about this possibility was provided in paragraph 8 of the “Information to applicants on the proceedings after communication of an application” which the applicant received with the communication letter and the statement of facts in August 2013. In these circumstances, the Court finds no reason to exercise its discretion under Rule 43 § 4 of the Rules of Court to compensate the applicant for her costs.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
Full & Egal Universal Law Academy