H.K. AND A.K. v. SWITZERLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 36223/97

                      by H. K. and A. K.

                      against Switzerland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   S. TRECHSEL

                 J.-C. GEUS

                 G. JÖRUNDSSON

                 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 14 May 1997 by

H. K. and A. K. against Switzerland and registered on 26 May 1997 under

file No. 36223/97;

      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 applicants, father and son, are citizens of former Yugoslavia

and were born in 1948 and 1979, respectively.  The first applicant is

a construction labourer, the second applicant an apprentice.  Before

the Commission the applicants are represented by Mr D. Ehrenzeller, a

lawyer practising at Teufen in Switzerland.

      The facts of the case, as submitted by the applicants, may be

summarised as follows.

      In 1979 the applicant's wife bore twins, both with the name Avni,

the second twin being the second applicant.

      In 1989 the applicants' family consisted of the first applicant,

his wife, the three children A., S. and M., and the twins Avni.  The

first applicant, who had been living in Switzerland since 1977, was

joined in 1989 by his family, including the first, but not the second,

twin brother Avni.  The child A. later died in Switzerland.

      According to the applicants' submissions before the Commission,

upon the family's departure to Switzerland in 1989, the second twin

brother Avni, the second applicant, remained with his grandmother with

whom he had close relations.  The subsequent decision of the Federal

Court of 15 November 1996 stated that according to the applicants'

submissions the second applicant had been brought to the grandmother

shortly after his birth in 1979.

      In Switzerland, the first twin brother Avni was afflicted by

leukaemia.  In 1991 it transpired that he was terminally ill, he was

therefore brought back to Yugoslavia where he died on 24 April 1991.

For unexplained reasons, the Swiss authorities were not immediately

informed of the first twin brother's decease.

      In 1993 the first applicant obtained a renewal of his right to

domicile (Niederlassungsbewilligung) which extended to the children A.,

S. and M., a further daughter Ar., and the twin brother Avni.

      The surviving second twin brother Avni, the second applicant, had

meanwhile terminated his schooling in Yugoslavia.  As his grandmother

was for health reasons no longer in a position to take care of him, the

second applicant travelled to Switzerland in June 1994 with the Alien's

identity card (Ausländerausweis) of the deceased first twin brother.

Upon his arrival, the second applicant went to the Swiss authorities

with the document certifying his father's right to domicile and a

photo.  The latter was stuck into the document.  The second applicant

then commenced an apprenticeship.

      Upon a control by the police in October 1994, the second

applicant claimed that he was the twin brother of the deceased Avni and

that he was also called Avni.

      Criminal proceedings were then instituted against the applicants

on suspicion of having circumvented regulations of the Aliens' Police

(Fremdenpolizei).  The proceedings against the second applicant were

eventually terminated, whereas the first applicant was fined 400 Swiss

Francs (CHF).

      On 14 December 1994 the Aliens' Police ordered the second

applicant to leave Switzerland before 2 January 1995.  The first

applicant then filed a request to let the second applicant join the

family in Switzerland.  This request was dismissed by the Aliens'

Police on 27 March 1995 and, upon appeal, by the Government of the

Canton of St. Gallen (Regierungsrat) on 5 September 1995.

      The applicants' administrative law appeal (Verwaltungsgerichts-

beschwerde) was dismissed by the Federal Court (Bundesgericht) on

15 November 1996, the decision being served on 18 December 1996.

      In its decision the Federal Court noted that according to S. 4

of the Federal Act on Residence and Domicile of Aliens (Bundesgesetz

über Aufenthalt und Niederlassung der Ausländer), the authorities were

free to decide whether or not to grant a residence allowance to

foreigners.  As a result, the foreigner and his relatives had in

principle no right to be granted a residence authorisation.  Insofar

as S. 17 para. 2 of the Federal Act envisaged the right of children

under eighteen years of age to join their family in Switzerland, this

presupposed links within a cohabiting family.

      The Court considered that according to the applicants'

submissions the second applicant's grandmother had taken care of him

shortly after his birth.  The second applicant had, therefore, been

separated from his original family.  Subsequently, the separation had

been maintained; thus it transpired from a family document of 1988 that

the second applicant was not listed as a family member.  The decision

continued:

      "The second applicant grew up with his grandmother and his great

      uncle in Yugoslavia.  He lived there until he finished compulsory

      schooling.  When questioned by the police on 30 November 1994 he

      stated that he had hesitated to travel to Switzerland, as he did

      not want to leave alone in Yugoslavia his grandmother who was

      seriously ill; thus, he had shown that he was closely attached

      to his grandmother/mother.  Immediately after his entry in

      Switzerland the second applicant commenced training as a

      construction apprentice with the H. company in D.  Thus, it

      cannot be dismissed out of hand that his residence in Switzerland

      also - or even mainly - served the purpose of education and

      employment."

      In respect of Article 8 of the Convention the decision stated:

      "The first applicant has been living as a seasonal worker in

      Switzerland since 1977.  Since 1989 his wife and children have

      been living here.  The second applicant remained with his foster

      parents in former Yugoslavia.  According to his own submissions

      the first applicant had "given (his second son Avni) as a

      present" to a rich uncle who had married his widowed mother.  The

      second applicant's contacts with his parents during his youth

      were limited to occasional visits and presents ...  Thus, the

      second applicant lived separated from the original family until

      he travelled to Switzerland when he was fifteen years old.

      Accordingly, a juvenile person, who has spent his whole childhood

      and his youth as a member of another family, cannot at present

      maintain an overriding private interest in joining his family.

      Even if he continues to live in Yugoslavia, it will be possible

      to continue the mutual contacts and to maintain the relationship

      between the second applicant and his original family.  An

      application for a tourist visa can be filed for visits in

      Switzerland."

COMPLAINTS

      The applicants complain under Article 8 of the Convention of the

Swiss authorities' refusal to let the second applicant join the first

applicant.  This should be permitted until the second applicant is

18 years of age.  The Swiss authorities no longer doubt that the second

applicant is a twin and descends from the first applicant.

      The second applicant moved, when he was 10, to his grandmother

who did not want to stay alone.  After he finished his schooling the

question arose as to whether he should join his family in Switzerland.

It transpired that the grandmother would, for health reasons, no longer

be able to provide family related security to the second applicant, and

that the child A. would soon die.  Thus, the first applicant decided

to bring the second applicant to Switzerland.  As the first applicant

can neither read nor write, it should be accepted that he thought that

the second applicant was included in his application for a prolongation

of his right to domicile.

      The applicants point out that the Swiss authorities who are

interested in reducing the number of foreigners in Switzerland should

not benefit from the fact that two children of the first applicant have

died.

THE LAW

      The applicants complain that the second applicant is not allowed

to join his father, the first applicant, in Switzerland.  They rely on

Article 8 (Art. 8) of the Convention which states, insofar as relevant:

      "1.  Everyone has the right to respect for his ... 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."

      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.

Nevertheless, the expulsion of a person from a country where close

members of his family are living may amount to an infringement of the

right to respect for family life guaranteed in Article 8 para. 1

(Art. 8-1) of the Convention (see Eur. Court HR, Moustaquim v. Belgium

judgment of 18 February 1991, Series A no. 193, p. 18, para. 36).

      The Commission has therefore examined whether in the present case

the refusal of the Swiss authorities to grant the second applicant the

right to join his father, the first applicant, in Switzerland, will

separate him from close members of his family and thus infringe his

right to respect for family life within the meaning of Article 8

(Art. 8) of the Convention.

      In examining such cases the Commission must consider whether a

sufficient link exists between the relatives concerned as to give rise

to the protection of "family life" within the meaning of Article 8

(Art. 8) of the Convention.  Generally, this involves married couples,

on the one hand, and, on the other, cohabiting dependents such as

parents, spouses and their dependent, minor children.  Whether it

extends to other relationships depends on the circumstances of the

particular case (see Eur. Court HR, Boughanemi v. France judgment of

24 April 1996, Reports of Judgments and Decisions 1996 II, p. 608,

para. 35; No. 10375/83, Dec. 10.12.84, D.R. 40, p. 196).

      The Commission has examined the second applicant's links with the

family of his father, the first applicant, on the one hand, and with

his foster family in Yugoslavia, on the other.

      It is true that before the Commission the applicants have

explained that the second applicant moved to his grandmother in 1989.

Nevertheless, it transpires from the decision of the Federal Court of

15 November 1996, which is the final decision in the present case, that

before the Swiss authorities the applicants claimed that the second

applicant had been brought to his grandmother shortly after his birth.

A confirmation herefor can be found in a family document of 1988 in

which the second applicant was not listed as a family member.

      In the Commission's opinion, therefore, the second applicant has

been separated from his original family since his early childhood, and

the separation was subsequently maintained until 1994.  Indeed, the

applicants have not referred to any circumstances which would indicate

particularly close links of the second applicant with the family

residing in Switzerland.  On the other hand, the second applicant has

consistently maintained close ties with his foster family.

      The Commission also notes the assurances of the Swiss

authorities, in particular of the Federal Court in its decision of

15 November 1996, according to which the second applicant may continue

the mutual contacts with his original family, and may at any time file

an application for a tourist visa for a visit in Switzerland.

      As a result, the applicants have not sufficiently made out an

interference with their rights under Article 8 para. 1 (Art. 8-1) of

the Convention.

      In any event, even assuming that the applicants had sufficiently

made out an interference with the exercise of their rights under

Article 8 para. 1 (Art. 8-1) of the Convention, the interference would

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

      The Commission notes that the Swiss authorities, in particular

the Federal Court in its decision of 15 November 1996, relied on the

Federal Act on Residence and Domicile of Aliens.  According to S. 4 of

the Act, the authorities are free to decide whether or not to grant a

residence allowance to foreigners. Insofar as S. 17 para. 2 of the Act

envisages the right of children under eighteen years of age to join

their family in Switzerland, this presupposes links within a cohabiting

family.

      The interference is, therefore, "in accordance with the law"

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

      Moreover, when refusing to grant the second applicant the right

to join the first applicant, the Federal Court did not exclude that the

second applicant's residence in Switzerland served the purpose, inter

alia, of employment.  The interference was therefore imposed "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.

      Finally, the Commission has examined whether the measure was

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

para. 2 (Art. 8-2) of the Convention, as interpreted in the Convention

organs' case-law (see Eur. Court HR, Berrehab v. Netherlands judgment

of 21 June 1988, Series A no. 138, p. 15, para. 27).

      The Commission notes that the applicants wish to let the second

applicant join the family in Switzerland since he is not yet eighteen

years of age.  They submit that the Swiss authorities, who are

interested in reducing the number of foreigners in Switzerland, should

not benefit from the fact that two of the first applicant's children

have died.

      In the Commission's opinion, however, the applicants have not

demonstrated that they cannot lead their private and family life

elsewhere, in particular in Yugoslavia.

      Taking into account the margin of appreciation which is left to

Contracting States in such circumstances (see Eur. Court HR, Berrehab

judgment, loc. cit., p. 15, para. 28), the Commission considers that

any interference with the applicant's right to respect for his private

and family life would be justified under Article 8 para. 2 (Art. 8-2)

of the Convention in that it could reasonably be considered "necessary

in a democratic society 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.

      The application is therefore manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber

 

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