AS TO THE ADMISSIBILITY OF
Application No. 24136/94
by H. Z.
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 30 November 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 9 March 1994 by
H. Z. against Sweden and registered on 11 May 1994 under file No.
24136/94;
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 former Yugoslavia and of Kosovo-
Albanian origin. He was born in 1972 and is currently residing at
Kristinehamn, Sweden. Before the Commission he is represented by
Mr. Lars Sjödin, a lawyer at Härnösand.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Particular circumstances of the case
The applicant entered Sweden on 1 September 1992. On 2 September
1992 he requested asylum there, alternatively a residence permit on
humanitarian grounds, referring to his fear of being arrested and
forced to participate in acts of war committed by the army of former
Yugoslavia.
In January 1993 the applicant started cohabiting with A., a woman
of Swedish nationality, and her son from a previous relationship.
On 9 March 1993 the National Immigration Board (statens
invandrarverk) rejected the applicant's request for asylum or a
residence permit and decided to expel him from Sweden. He was
furthermore prohibited from returning to Sweden before 1 April 1995.
The applicant appealed, referring, inter alia, to his
relationship with A., with whom he contracted marriage on 28 May 1993.
He informed the Aliens Appeals Board (utlänningsnämnden) of the
marriage on 11 June 1993.
On 28 June 1993 the Aliens Appeals Board rejected the applicant's
appeal, considering, in particular, that his relationship with A. did
not constitute a reason for granting a residence permit while he was
staying in Sweden.
The applicant lodged a further request for a residence permit,
complaining that his submission of 11 June 1993 had not been taken into
account by the Aliens Appeals Board.
On 6 July 1993 the National Immigration Board rejected the
applicant's further request, considering that the new circumstances
invoked were not sufficient for the granting of a residence permit.
In the autumn of 1993 the applicant applied for a passport at the
Embassy of former Yugoslavia in Stockholm. No passport was issued. The
applicant then lodged a further request for a residence permit,
claiming that it was impossible for him to obtain a passport enabling
him to leave the country for the purpose of lodging a fresh request for
a residence permit in Sweden.
On 21 December 1993 the National Immigration Board rejected the
applicant's further request, observing that on 28 July 1993 the Embassy
of former Yugoslavia had requested the applicant to fill out certain
forms and to state how he had been able to leave that country without
a passport. Subsequently he had been requested to appear in person at
the Embassy in order for his passport application to be processed.
According to the applicant, it emerged from his subsequent meeting with
Embassy staff that he would have to undergo his military service in
former Yugoslavia upon his expulsion there and that he would therefore
not be issued with a passport.
As from June 1994, A. is pregnant with a child to be born to her
and the applicant.
Relevant domestic law
According to the 1989 Aliens Act (utlänningslag 1989:529), an
expulsion order issued by the National Immigration Board may be
combined with a prohibition on the alien's return valid either for a
certain period of time or indefinitely (Chapter 4, Sections 1 and 14).
An alien who has been prohibited from returning to Sweden may,
nevertheless, be granted a permit to visit the country for extremely
important purposes. For particular reasons, such a permit may be
granted at the request of someone other than the alien himself (Chapter
4, Section 15).
A request for a residence permit lodged by an alien, who is to
be refused entry or expelled by a decision which has acquired legal
force, may only be granted if the request is based on new circumstances
and provided that the applicant is entitled to asylum or there are
weighty humanitarian reasons for allowing him to stay in Sweden
(Chapter 2, Section 5, subsection 3).
COMPLAINTS
The applicant complains that his impending expulsion to former
Yugoslavia would violate his rights under Article 8 of the Convention.
The expulsion would disrupt his family life and prevent a subsequent
reunification of the family.
THE LAW
The applicant complains that his impending expulsion to former
Yugoslavia would disrupt his family life and thus violate his rights
under Article 8 (Art. 8) of the Convention. This provision reads as
follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
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 the Contracting States are in
principle free to control the entry, residence and expulsion of aliens.
The duties imposed by Article 8 (Art. 8) of the Convention cannot be
considered as extending to a general obligation on the part of a
Contracting State to respect the choice by married couples of the
country of their matrimonial residence and to accept the non-national
spouses for settlement in that country (Eur. Court H.R., Abdulaziz,
Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp.
33-34, paras. 67 and 68). Expulsion of a person from a country in which
close members of his family live may, however, amount to an unjustified
interference with his right to respect for his family life as
guaranteed by Article 8 (Art. 8) of the Convention (e.g., Eur. Court
H.R., Moustaquim judgment of 18 February 1991, Series A no. 193,
pp. 19 et seq., paras. 43 et seq.).
The Commission considers that the decision ordering the
applicant's expulsion from Sweden and the related prohibition on his
return would, if enforced, interfere with his right to respect for his
family life due to his relationship with his Swedish wife residing in
that country. It must next be examined whether this interference would
be justified under the terms of para. 2 of Article 8 (Art. 8-2). Under
that paragraph such an interference must satisfy three conditions: it
must be "in accordance with the law", it must pursue one or more of the
aims enumerated in para. 2 and it must be "necessary in a democratic
society" for that aim or those aims. The necessity criterion implies
the existence of a pressing social need and, in particular, requires
that the measure be proportionate to the legitimate aim pursued (the
above-mentioned Moustaquim judgment, pp. 18 et seq., paras. 37 et
seq.). Regard should further be had to the margin of appreciation
afforded to the Contracting States (Eur. Court H.R., Berrehab judgment
of 21 June 1988, Series A no. 138, pp. 15-16, para. 28).
The Commission is satisfied that the expulsion order was issued
"in accordance with the law". It also considers that the enforcement
of the order would pursue a legitimate aim under Article 8 para. 2
(Art. 8-2), namely the economic well-being of the country. As regards
the question whether the interference was "necessary in a democratic
society" in pursuit of the above-mentioned aim, the Commission observes
that the applicant and A. contracted marriage only after the National
Immigration Board's initial expulsion order. He cannot therefore
reasonably have expected to be able to pursue his family life with A.
in Sweden. The Commission further observes that the expulsion order has
not yet been enforced and that the prohibition on his return to Sweden
is to expire in April 1995. Should enforcement take place, the
applicant or his wife could, in principle, apply for a short-term
residence permit enabling him to visit her in Sweden even while the
prohibition on return is valid.
Taking into account the margin of appreciation left to the
Contracting States, the Commission concludes that the enforcement of
the expulsion order would be justified under Article 8 para. 2
(Art. 8-2) of the Convention in that it can reasonably be considered
as "necessary in a democratic society" in pursuance of the above-stated
aim. Accordingly, the enforcement of the expulsion order would not
violate Article 8 (Art. 8).
It follows that the application must be rejected as being
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.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy