GÜL v. Switzerland



                  EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 23218/94

                               Riza GÜL

                                against

                              Switzerland

                       REPORT OF THE COMMISSION

                       (adopted on 4 April 1995)

                           TABLE OF CONTENTS

                                                                 Page

I.    INTRODUCTION

      (paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 16 - 31). . . . . . . . . . . . . . . . . . . . . . . 3

      A.   The particular circumstances of the case

           (paras. 16 - 26) . . . . . . . . . . . . . . . . . . . . 3

           a)    Applicant's situation in Switzerland

                 (paras. 16 - 20) . . . . . . . . . . . . . . . . . 3

           b)    Applicant's request for the entry of his

                 sons into Switzerland

                 (paras. 21 - 25) . . . . . . . . . . . . . . . . . 3

           c)    Situation of the applicant's son E. in Turkey

                 (para. 26) . . . . . . . . . . . . . . . . . . . . 4

      B.   Relevant domestic law and practice

           (paras. 27 - 31) . . . . . . . . . . . . . . . . . . . . 4

III.  OPINION OF THE COMMISSION

      (paras. 32 - 71). . . . . . . . . . . . . . . . . . . . . . . 6

      A.   Complaint declared admissible

           (para. 32) . . . . . . . . . . . . . . . . . . . . . . . 6

      B.   Point at issue

           (para. 33) . . . . . . . . . . . . . . . . . . . . . . . 6

                           TABLE OF CONTENTS

                                                                 Page

      C.   Article 8 of the Convention

           (paras. 34 - 70) . . . . . . . . . . . . . . . . . . . . 6

           a)    Interference with the applicant's rights

                 under Article 8 para. 1 of the Convention

                 (paras. 35 - 43) . . . . . . . . . . . . . . . . . 6

           b)    Justification of the interference under

                 Article 8 para. 2 of the Convention

                 (paras. 44 - 70) . . . . . . . . . . . . . . . . . 7

           CONCLUSION

           (para. 71)   . . . . . . . . . . . . . . . . . . . . . .10

DISSENTING OPINION OF Mr. S. TRECHSEL, JOINED BY MM. C.A. NØRGAARD,

E. BUSUTTIL, G. JÖRUNDSSON, J.-C. SOYER, M.A. NOWICKI, N. BRATZA,

I. BÉKÉS AND J. MUCHA

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

DISSENTING OPINION OF Mr. L. LOUCAIDES. . . . . . . . . . . . . . .13

APPENDIX I   : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .14

APPENDIX II  : DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .15

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant, a Turkish citizen born in 1947, resides at

Pratteln in Switzerland.  Before the Commission he is represented by

Mr. J. Walker, a lawyer practising at Olten in Switzerland.

3.    The application is directed against Switzerland.  The respondent

Government are represented by their Deputy Agent, Mr. Ph. Boillat, Head

of the European Law and International Affairs Section of the Federal

Office of Justice.

4.    The case concerns the applicant's complaint under Article 8 of

the Convention that his son is not permitted to join him in

Switzerland.

B.    The proceedings

5.    The application was introduced on 31 December 1993 and registered

on 10 January 1994.

6.    On 11 April 1994 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on its admissibility and merits.

7.    The Government's observations were submitted on 21 June 1994.

The applicant replied on 26 August 1994.  On 8 July 1994 the Commission

granted the applicant legal aid for the representation of his case.

8.    On 10 October 1994 the Commission declared admissible the

complaint under Article 8 of the Convention relating to the applicant's

son E.  The remainder of the application was declared inadmissible.

9.    The text of the Commission's decision on admissibility was sent

on 20 October 1994 to the parties who were invited to submit further

observations on the merits of the case.  Both parties submitted their

observations on 2 December 1994.  Further observations were received

from the Government on 16 January 1995 and from the applicant on

21 February 1995.

10.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.    The present Report

11.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           MM.   C.A. NØRGAARD, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 S. TRECHSEL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

12.   The text of this Report was adopted on 4 April 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13.   The purpose of the Report, pursuant to Article 31 of the

Convention, is:

      (i)  to establish the facts, and

      (ii) to state an opinion as to whether the facts found disclose

           a breach by the State concerned of its obligations under

           the Convention.

14.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

15.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    The particular circumstances of the case

      a)   Applicant's situation in Switzerland

16.   Until 1983 the applicant resided in Turkey with his wife and

two sons, namely T., born in 1971, and E., born in 1983.  His wife

suffers from epilepsy.

17.   The applicant entered Switzerland in 1983 and filed a request for

asylum.  He worked in a hotel kitchen until 1990 when he fell ill.

18.   In 1987 his wife, who was still in Turkey, fell into a fire when

suffering an epileptic fit and was severely burnt.  As she could not

be treated adequately in the area where she lived, she travelled to

Switzerland where she was treated as an emergency case.  Two fingers

of her left hand were eventually amputated.

19.   In 1988 their child N., a girl, was born in Switzerland.  Soon

it became clear that the applicant's wife who continued to suffer from

epilepsy could not care for the child, and N. was placed in a home in

Switzerland.  It also transpired that the wife was unable to return to

Turkey.

20.   On 26 June 1989 the Aliens' Police (Fremdenpolizei) of the Canton

of Basel-Landschaft granted the applicant, his wife and N. a residence

permit (Aufenthaltsbewilligung) in Switzerland on humanitarian grounds.

In view thereof the applicant withdrew his request for asylum.

      b)   Applicant's request for the entry of his sons

           into Switzerland

21.   The applicant then filed a request to permit the sons T. and E.,

who were still in Turkey, to join him in Switzerland.  On

19 September 1990 the Aliens' Police of the Canton of Basel-Landschaft

dismissed the request.  It found in particular that the applicant and

his wife did not have an apartment meeting the necessary requirements;

that they did not have the financial means to take care of the family;

and that T. could not join them in Switzerland as he was already 18.

22.   The applicant's appeal against this decision was dismissed by the

Government (Regierungsrat) of the Canton of Basel-Landschaft on

30 July 1991.  It found that the applicant's children could not be

permitted entry into Switzerland as he only had a residence permit, not

a permit to establish domicile (Niederlassungsbewilligung), as required

by Section 17 para. 2 of the Federal Act on Residence and Domicile of

Foreigners (Bundesgesetz über Aufenthalt und Niederlassung der

Ausländer; see below, Relevant domestic law and practice).

Furthermore, Article 8 of the Convention could only be of relevance if

the applicant had either Swiss nationality or a permit to establish

domicile.

23.   Insofar as the Aliens' Police could on its own accord permit

children under 18 years of age to join the applicant and his wife

according to Section 38 of the Federal Ordinance on the Limitation of

the Number of Foreigners (Verordnung über die Begrenzung der Zahl der

Ausländer; see below, Relevant domestic law and practice), the

Government noted that T. was 18.  In respect of E. the Government found

that the applicant's income, derived from social welfare, amounted to

2,060 SFr per month and thus did not reach the subsistence minimum of

2,710 SFr per month.  Insofar as the applicant was awaiting an

invalidity pension, his family would rely entirely on social security

benefits.  The social security authorities (Fürsorgebehörde) could not

be expected to ensure the subsistence of further children in respect

of which it was clear in advance that the they would burden (zur Last

fallen) the authorities.  Moreover, the applicant's wife was unable to

rear N. on account of her health; it appeared likely that the

applicant's family could not take care of E. and that he would also be

placed in a home.  In this respect the Government relied on Section 39

para. 1 of the Federal Ordinance (see below, Relevant domestic law and

practice).

24.   Finally, the Government found that it could not be the purpose

of residence permits granted on humanitarian grounds further to

privilege the persons concerned by granting their family members the

right to join them.

25.   Against this decision the applicant filed an administrative law

appeal (Verwaltungsgerichtsbeschwerde) which the Federal Court

(Bundesgericht) dismissed on 2 July 1993.  The Court recalled its

case-law on Article 8 of the Convention according to which a person

could only join a family member in Switzerland if the latter had Swiss

nationality or a permission to establish domicile (see below, Relevant

domestic law and practice).   Moreover, in the present case it could

not be completely excluded that in future the circumstances, in

particular the medical grounds, which justified the granting of a

residence permit on humanitarian grounds, would change, or that other

grounds would arise militating against prolongation of the residence

permit.

      c)   Situation of the applicant's son E. in Turkey

26.   E. has been living in Istanbul since 1993.  According to the

Government's submissions he is living with the family of his older

brother T., where also his grandfather lives.  The applicant submits

that E.'s residence varies; according to a custom among Kurdish

families, he alternates by spending two to three days each in a

different family in Istanbul stemming from his home village;

occasionally, he lives with his brother's family.

B.    Relevant domestic law and practice

27.   According to Section 4 of the Federal Act on Residence and

Domicile of Foreigners (Bundesgesetz über Aufenthalt und Niederlassung

der Ausländer), within the framework of the legal order, the

authorities will freely appreciate (nach eigenem Ermessen) whether to

grant a residence permit.

28.   According to Section 16 para. 1 of the Federal Act, when granting

a residence permit the authorities will consider, inter alia, the

economic interests of the country.

29.   Section 17 para. 2 of the Federal Act provides, inter alia, that

if a foreigner has permission to establish his domicile

(Niederlassungsbewilligung) in Switzerland, this permission will

include unmarried children under 18 years of age.

30.   According to Section 38 of the Federal Ordinance on the

Limitation of the Number of Foreigners (Verordnung über die Begrenzung

der Zahl der Ausländer), the Cantonal Aliens' Police may permit the

spouse and unmarried children under 18 years of age to join a foreigner

in Switzerland.  According to Section 39 para. 1 of the Ordinance,

members of the family may join the foreigner on condition, inter alia,

that he has sufficient means to support the family and the care of the

children is assured.

31.   According to the case-law of the Federal Court (Bundesgericht),

Article 8 of the Convention entitles a person to join a family member

in Switzerland if the latter had either Swiss nationality or permission

to establish domicile (see ATF 116 Ib 355;

115 Ib 4; 111 Ib 163 et seq.).

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

32.   The Commission has declared admissible the applicant's complaint

that the Swiss authorities will not permit his son E. to join him in

Switzerland.

B.    Point at issue

33.   The point at issue is whether there has been a violation of

Article 8 (Art. 8) of the Convention.

C.    Article 8 (Art. 8) of the Convention

34.   The applicant complains that the Swiss authorities did not permit

his son E. to join him in Switzerland.  He relies on Article 8 (Art. 8)

of the Convention which states, insofar as relevant:

      "1.  Everyone has the right to respect for ... family life ...

      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)   Interference with the applicant's rights

           under Article 8 para. 1 (Art. 8-1) of the Convention

35.   The first question is whether there has been an interference with

the applicant's rights under Article 8 para. 1 (Art. 8-1) of the

Convention.

36.   The applicant submits that he has not been able to visit E. as

he only draws an invalidity pension and lacks money to travel.  His

wife was unable to travel to Turkey on account of her illness.  In

fact, the Swiss authorities, by refusing E. entry into Switzerland,

have prevented the applicant and his son from seeing each other.

37.   The Government submit that the applicant only has a residence

permit on humanitarian grounds; he has no right to stay in Switzerland,

and cannot therefore invoke the rights of Article 8 (Art. 8) of the

Convention.  Moreover, the applicant has not seen E. since 1991; his

wife has not seen E. since 1988.

38.   The Commission recalls that no right of an alien to enter, remain

or reside in a particular country is as such guaranteed by the

Convention.  However, if a person is refused entry to a country where

his close family resides, an issue may arise under Article 8 (Art. 8)

of the Convention (see No. 10375/83, Dec. 10.1.84, D.R. 40 p. 196).

39.   The Commission's first task is to consider whether a sufficient

link exists between the relatives concerned as to give rise to the

protection of Article 8 (Art. 8) of the Convention.  Generally, the

protection of family life under Article 8 (Art. 8) involves close

family members, such as parents and their minor children (see

No. 10375/83, ibid.).

40.   In the present case, E. is the applicant's son; he is currently

12 years old.  It is true that the applicant and his wife have not

visited E. for some time, though the Commission notes that they are

indigent, and the applicant's wife is ill.  In the Commission's

opinion, however, a close link between the applicant and E. arises

naturally from the relationship existing between a minor child and his

parents.

41.    In respect of his son E. the applicant therefore enjoys the

protection afforded by Article 8 (Art. 8) of the Convention in respect

of family life.

42.   As the Swiss authorities refuse to permit E. to join his father,

the applicant, in Switzerland, there has been an interference with the

applicant's right under Article 8 para. 1 (Art. 8-1) of the Convention.

43.   The Commission must therefore examine whether the interference

satisfied the conditions under Article 8 para. 2 (Art. 8-2) of the

Convention.

      b)   Justification of the interference under

           Article 8 para. 2 (Art. 8-2) of the Convention

44.   The first question is whether the interference was "in accordance

with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

45.   The Government contend that the measure was based on the Federal

Act on Residence and Domicile of Foreigners.

46.   The Commission notes that in its decision of 30 July 1991 the

Government of the Canton of Basel-Landschaft, when refusing E. entry

into Switzerland, relied on Section 17 para. 2 of the Federal Act on

Residence and Domicile of Foreigners as well as on Sections 38 and 39

of the Federal Ordinance on the Limitation of the Number of Foreigners

(see above, paras. 22 and 23).

47.   The interference was therefore "in accordance with the law"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

48.   The next question to be examined under Article 8 para. 2

(Art. 8-2) of the Convention is whether the interference had a

legitimate aim.

49.   The Government submit that the purpose of the measure was the

prevention of disorder, the protection of the economic well-being of

the country and the protection of the rights and freedoms of others.

50.   The Commission notes that the Government of the Canton of Basel-

Landschaft in its decision of 30 July 1991 refused E. entry into

Switzerland as it did not appear certain whether the applicant's family

could take care of E.  Moreover, the applicant's family relied entirely

on social security benefits and E.'s residence in Switzerland would

further burden the social security authorities (see above, para. 23).

51.   The Commission accepts therefore that the measure was "in the

interests of ... the economic well-being of the country" within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

52.   Finally, the Commission must examine whether the interference was

"necessary in a democratic society" within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention.

53.   The applicant submits that E.'s situation in Turkey is not

optimal.  He moves around in different families and school attendance

is irregular, particularly as his grandfather cannot always pay school

fees.  If E. lived in Switzerland he would no longer have the

disadvantages of his present unstable life.

54.   The applicant further contends that he, his wife and their

daughter N. cannot be expected to return to Turkey where medical

treatment for his wife would be insufficient and the social network

would be missing.

55.   The applicant also submits that, had E. been permitted to enter

Switzerland with his mother earlier on, he would have also received a

residence permit on humanitarian grounds.  The applicant draws an

invalidity pension, so he can take care of E.  The daughter N. was only

placed in a home as the applicant could not take care of her when she

was a baby; meanwhile, it would be inappropriate to take N. away from

the home.

56.   The Government submit that the measure was "necessary in a

democratic society" within the meaning of Article 8 para. 2 (Art. 8-2)

of the Convention, having regard to the margin of appreciation left to

States in such matters.  Reference is made in particular to the fact

that the applicant's family could live in another country, and that it

is not excluded that the applicant's wife could be treated in Turkey.

The applicant left Turkey of his own free will, when E. was three

months old, and he could return to Turkey if he wished.  The applicant

and his wife do not have the financial means to rear E., whose stay in

Switzerland would be disadvantageous to his well-being.  Thus, it would

not be in the interest of E. to let him enter Switzerland where in all

likelihood he could not lead a family life.

57.   The Government contend that the conditions in which E. currently

lives in Turkey have no bearing on the right under Article 8 (Art. 8)

of the Convention to respect for family life.  It is submitted,

however, that the economic conditions are not optimal.  His aunts who

live there apparently have their own families and it is doubtful

whether they could take care of E.

58.   According to the Convention organs' case-law, in determining

whether an interference was "necessary in a democratic society", due

allowance must be made for the margin of appreciation that is left to

the Contracting States.  However, in order to be "necessary" the

interference must correspond to a pressing social need and be

proportionate to the legitimate aim pursued (see Eur. Court H.R.,

Berrehab judgment of 21 June 1988, Series A no. 138, p. 15 et seq.,

para. 28).

59.   Cases such as the present one do not only concern family life

within the meaning of Article 8 (Art. 8) of the Convention, but they

also have a bearing on immigration policy (see Eur. Court H.R.,

Abdulaziz and others judgment of 28 May 1985, Series A no. 94, p. 34,

para. 67).  In the present case the Commission notes, for instance, the

decision of the Government of the Canton of Basel-Landschaft of

30 July 1991 according to which it could not be the purpose of

residence permits granted on humanitarian grounds further to privilege

the persons concerned by granting their family members the right to

join them (see above, para. 24).

60.   In such matters the Commission recalls that it cannot be the

Convention organs' function to pronounce themselves in general terms

on the immigration and residence policies of Contracting States.

Indeed, the Convention does not prevent Contracting States in principle

from regulating the entry and length of stay of aliens (see above,

para. 38).  The Convention organs only have to examine the

interferences complained of, and they must do so not only from the

point of view of immigration and residence, but also with due regard

to what is at stake for the applicants.  Thus, in the present case the

legitimate aim pursued has to be weighed against the seriousness of the

interference with the applicant's right to respect for his family life

within the meaning of Article 8 (Art. 8) of the Convention (see Eur.

Court H.R., Berrehab judgment, loc. cit., p. 16, para. 16).

61.   The Commission has examined the seriousness of the interference

complained of.  It finds that E. risks growing up without ever having

lived together with his father, the applicant.  The Swiss authorities'

refusal to let E. enter Switzerland therefore seriously disrupted the

applicant's family life within the meaning of Article 8 (Art. 8) of the

Convention.

62.   The Commission further notes that the parties disagree as to E.'s

situation in Turkey.  According to the Government's submissions he is

living with the family of his older brother T., where also his

grandfather lives.  The applicant submits that E.'s residence varies.

However, the Commission notes both parties' submissions according to

which E.'s situation in Turkey is unsatisfactory for economic reasons.

The applicant submits furthermore that in view of financial

difficulties E.'s school attendance is irregular.

63.   Against this background the Commission has examined the grounds

adduced by the Swiss authorities when refusing E. entry into

Switzerland.

64.   In the domestic proceedings as well as before the Commission

reference was made mainly to the fact that the applicant and his wife

were not in a position to rear E.  Thus, the applicant's wife was ill

and was unable to rear their daughter N. who was placed in a home.  It

was therefore likely that E. would also be placed in a home.

65.   However, the Commission notes the applicant's submissions that

he no longer works on account of his invalidity and is therefore in a

position to rear E. himself; and that N. has only been left in the

children's home as she has hitherto spent virtually all her life there.

In the Commission's opinion, it must therefore be accepted that it is

the intention of the applicant and his wife that they should live

together with E. and rear him, rather than place him in a foster home.

66.   As a further ground, the Federal Court in its decision of

2 July 1993 found that it could not be excluded that in future the

circumstances, in particular the medical grounds, justifying the

granting of a residence permit on humanitarian grounds could change,

or that other grounds would arise militating against prolongation of

the residence permit (see above, para. 25).  Before the Commission the

Government have also argued that the applicant could be expected to

return with his family to Turkey.

67.   It is true that it would serve little purpose if E. were to enter

Switzerland shortly before the applicant and his wife were to leave the

country.  However, the Commission sees no indication that the applicant

and his wife wish to do so.  Thus, the applicant has been living in

Switzerland since 1983, his wife since 1988, and they appear firmly

rooted there.  Moreover, given the current ill-health of the

applicant's wife, it does not appear that in the near future the

circumstances would change to such an extent that the applicant and his

wife could be expected to leave Switzerland.

68.   A further reason adduced both in the domestic proceedings and

before the Commission was that the applicant would be unable to ensure

E.'s subsistence; the latter would therefore burden the social security

authorities.

69.   In the Commission's opinion, however, such financial

considerations are not sufficient to justify a permanent separation of

a child from its parents.

70.   In the circumstances of the present case the Commission does not

find that a fair balance was struck between the various interests at

stake.  The interference was not therefore proportionate to the

legitimate aim pursued.  As a result, it was not justified under

Article 8 para. 2 (Art. 8-2) of the Convention.

      CONCLUSION

71.   The Commission concludes, by 14 votes to 10, that in the present

case there has been a violation of Article 8 (Art. 8) of the

Convention.

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (C.A. NØRGAARD)

                                                        (Or. English)

                 DISSENTING OPINION OF Mr. S. TRECHSEL

       JOINED BY MM. C.A. NØRGAARD, E. BUSUTTIL, G. JÖRUNDSSON,

      J.-C. SOYER, M.A. NOWICKI, N. BRATZA, I. BÉKÉS AND J. MUCHA

      I regret that in the present case I cannot follow the opinion of

the majority.  I wish to stress that I fully recognize the very

difficult situation of the applicant's family in a humanitarian

perspective.  However, I do not agree that the respondent Government

can be held responsible for this.

      What is at issue here, as far as the Convention is concerned, is

the refusal of the Swiss Government to issue the applicant's son E.

with an entrance and residence permit.  The majority has come to the

conclusion that this constitutes an interference with the applicant's

right to respect for his family life.

      In my view, however, the omission complained of cannot be

analysed as an "interference" within the meaning of Article 8 para. 2

of the Convention.  As the object of the criticism addressed to the

Government is the fact that a specific action was not taken, the case

falls to be considered under Article 1 together with Article 8 para. 1

of the Convention.  The question, therefore, is: Did the refusal of an

entry permit to the applicant's son E. constitute a failure, on behalf

of the Government, to secure respect for the applicant's family life

(see e.g., Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment

of 28 May 1985, Series A no. 94, p. 33 et seq., para. 67).  As the

Court stressed (loc. cit.), "this is an area in which the Contracting

Parties enjoy a wide margin of appreciation in determining the steps

to be taken to ensure compliance with the Convention with due regard

to the needs and resources of the community and of individuals".  The

Court came to the conclusion that the refusal of the applicants'

husbands' immigration to the United Kingdom did not constitute "lack

of respect" for family life.

      It is true that in the Abdulaziz, Cabales and Balkandali case the

immigrants did not already have a family which they left behind in

another country until they had achieved settled status in the United

Kingdom.  In the present case, the applicant's son E. had been born

three months before the applicant himself entered Switzerland in 1983.

His wife at that time remained in Turkey; she followed him only in 1987

after having suffered a severe accident.

      On the other hand, the applicant did not qualify for a settlement

permit in Switzerland, but was only permitted to stay on humanitarian

grounds.  The family is fully dependent on social security and the

daughter N., born in Switzerland, was placed in a home because the

applicant's wife could not take care of her.  This being the case, it

is at least extremely doubtful whether the applicant would be able to

take care of E. without resorting to another placement in a foster

home, having regard to the circumstances in which the family is living

in Switzerland, particularly the wife's state of health and the

family's dependence on social security benefits.  If E. were to be

placed in a foster home, as seems probable in these circumstances,

it is difficult to see how the quality of their family life would be

substantially enhanced by the presence of E. on Swiss territory.  It

is also rather difficult to understand why respect for family life

would require a residence permit for E. while the applicant did not

avail himself of the possibility to establish full family life with his

daughter N. who does live in Switzerland.

      Finding a violation of Article 8 in the present case amounts to

saying that, as the Government accepted the applicant and his wife to

stay on humanitarian grounds, they must also admit their son who has

hitherto lived in Turkey.  He is twelve years old and would certainly

have considerable difficulties to catch up with schooling in

Switzerland, in particular as there is no indication that he has any

knowledge of the German language.  His situation in Turkey may not be

fully satisfactory, but important as such a consideration may be on a

humanitarian level, I cannot agree that it is a relevant factor for

imposing upon the Swiss Government the obligation to let him immigrate.

I even find it very doubtful whether a transfer to Switzerland can be

regarded as being in the interest of E.

      It is true that the applicant has not seen his son in a long

time.  However, there is nothing in the file which would permit one to

conclude that it would not be possible for E. to join his parents for

a visit.

      Considering all the circumstances of the present case, I have

come to the conclusion that the refusal of the Swiss authorities to let

E. join his parents in Switzerland does not amount to a "lack of

respect" for the applicant's family life.  There was, accordingly, no

breach of Article 8 of the Convention.

                                                        (Or. English)

                DISSENTING OPINION OF Mr. L. LOUCAIDES

      I regret that I cannot agree with the majority in this case.

      The Commission does not recognise the right of an alien to enter

in a particular country.  In those exceptional cases, where an alien

has close relatives in a country which is Party to the Convention and

his admission is sought on the basis of the right to respect for his

or his relatives' family life, the question whether there is an

obligation on the part of the State to admit such an alien must depend

on the particular circumstances of the case.  In this respect account

must also be taken of the State's margin of appreciation.

      Humanitarian grounds are not sufficient to create an obligation

on the part of the State to admit an alien.  Such an obligation, in the

context of the right to respect for family life, can only exist if (a)

the non-admission of the alien would inevitably amount to a disruption

of the complainant's family life lawfully established in the territory

of the State concerned; and if (b) the non-admission is not found to

be necessary for any of the purposes set out in para. 2 of Article 8

of the Convention.

      In this particular case applicant's family life was at the

material time already disrupted through no fault of the respondent

Government.  Applicant's daughter N., born in Switzerland, could not

be taken care of either by the applicant or his wife and she had to be

placed in a home.  His sons T. and E. had been living in Turkey ever

since the applicant entered Switzerland in 1983.  Applicant's son E.

was already twelve years old when the refusal complained of to admit

him in Switzerland took place.

      Applicant was only permitted to reside in Switzerland temporarily

on humanitarian grounds.  He was not given a permit to establish

domicile.  Admission of an alien under these circumstances could not

reasonably entail an obligation on the part of the State concerned to

allow entry of his family as well, or be a ground for legitimate

expectations for such entry.  It was a temporary, conditional and

personal admission of the applicant not extending to his family.

      Applicant complains that the refusal to admit his son E. in

Switzerland amounted to a breach of his right to respect for his family

life within the meaning of Article 8 of the Convention.  In the light

of the above, I believe that applicant's complaint is unfounded.

                              APPENDIX I

                      HISTORY OF THE PROCEEDINGS

Date                        Item

_________________________________________________________________

31 December 1993            Introduction of application

10 January 1994             Registration of application

Examination of admissibility

11 April 1994               Commission's decision to communicate the

                            case to the respondent Government and to

                            invite the parties to submit observations

                            on admissibility and merits

21 June 1994                Government's observations

08 July 1994                Commission's granting of legal aid

26 August 1994              Applicant's observations in reply

10 October 1994             Commission's decision to declare

                            application in part admissible and in part

                            inadmissible

Examination of the merits

2 December 1994             Parties' observations

16 January 1995             Government's further observations

21 February 1995            Applicant's further observations

25 February 1995            Commission's consideration of the state of

                            the proceedings

4 April 1995                Commission's deliberations on the merits,

                            final vote and adoption of the Report

 

Full & Egal Universal Law Academy