Communicated on 19 October 2017
THIRD SECTION
Application no. 28895/14
Mkrtich Azotovich KHACHATRYAN and Yelizaveta Nikolayevna KONOVALOVA
against Russia
lodged on 26 March 2014
STATEMENT OF FACTS
The applicants, Mr Mkrtich Azotovich Khachatryan, who was born in 1958, and Ms Yelizaveta Nikolayevna Konovalova, who was born in 1976, are Armenian and Russian nationals respectively and live in Sosnogorsk. They are represented before the Court by Mr Ernest Mezak, a human-rights defender from Syktyvkar.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant arrived in Russia in 2001. In 2008 he started cohabiting with the second applicant in Sosnogorsk, in the Republic of Komi. In 2010 the couple had a son, G.Kh. In May 2012 the applicants officially registered their marriage.
It appears that between 2001 and 2013 the first applicant resided in Russia on the basis of regularly extended temporary (three-year) residence permits.
On 20 February 2013 the first applicant applied for the renewal of his temporary residence permit.
On 10 April 2013 the Federal Migration Service of the Komi Republic (“the FMS”) rejected his application, as he had failed to provide a medical certificate attesting that he was free of HIV and other infectious diseases by 22 March 2013. The first applicant received the refusal letter on 22 April 2013.
On 24 April 2013 the first applicant appealed against the refusal to the Sosnogorsk Town Court (“the Town Court”). He stated that he had been unaware of the obligation to provide the medical certificate, and that the refusal to grant him the residence permit would adversely affect his family life, as, in accordance with the regulations in force, he would be obliged to leave Russia for 90 days out of every 180 days until 10 April 2014. Such a situation would disrupt his family life with the second applicant and their son, who was a minor, and would cause them financial hardship. The first applicant enclosed the required medical certificate with his appeal.
On 26 June 2013 the Town Court upheld the refusal to grant the residence permit. The court stated that, when filing his request for the renewal, the first applicant had signed an undertaking to provide the medical certificate within thirty days. However, he had neither submitted the document nor requested an extension of the time-limit for its submission. Therefore, the authorities’ refusal to grant the permit had been duly substantiated. The fact that the first applicant had presented the required medical certificate to the court at the hearing could not serve as a basis for overruling the refusal. The court’s decision stated in general terms that the refusal to grant the permit interfered with the first applicant’s right to respect for family life. However, the decision did not examine either the proportionality of the impugned measure or its effect on the first applicant’s family life.
The first applicant appealed against the Town Court’s decision to the Supreme Court of the Komi Republic (“the Komi Supreme Court”). He stated, inter alia, that the Town Court had failed to review the negative impact of the refusal on his family life, and stressed that the minor failure to submit the medical certificate would deprive him of the opportunity to reside with his wife and young son for one year, and cause psychological and financial hardship for the family.
On 26 September 2013 the Komi Supreme Court rejected the appeal. The court stated that the refusal had been issued in compliance with the relevant regulations and for the protection of public health. The first applicant’s failure to provide the necessary medical certificate had indicated to the authorities that he could have HIV and therefore pose a danger to the public. The court did not examine the first applicant’s allegations regarding the disruptive effect of the refusal on his family life with the second applicant and their young son.
B. Relevant domestic law
See Muradeli v. Russia, no. 72780/12, §§ 45-50, 9 April 2015.
COMPLAINT
The applicants complain under Article 8 of the Convention that the refusal to renew the first applicant’s residence permit was a disproportionate measure for a minor violation of procedural regulations, and that the domestic court failed to examine the adverse effect of that measure on their family life.
QUESTIONS TO THE PARTIES
Did the refusal to renew the first applicant’s temporary residence permit constitute an interference with the applicants’ right to respect for their family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention (see Üner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006-XII, and Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-109, 3 October 2014)?
(a) What was the domestic courts’ scope of review of the first applicant’s appeals against the refusal to renew the temporary residence permit?
(b) Did the domestic courts balance the private and public interests when examining the appeals against the refusal to renew the temporary residence permit?
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