AS TO THE ADMISSIBILITY OF
Application No. 22978/93
by Amal KORIEH
against Sweden
The European Commission of Human Rights (Second Chamber) sitting in
private on 2 March 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 3 September 1993 by
Amal KORIEH against Sweden and registered on 22 November 1993 under file
No. 22978/93;
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 facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Syrian citizen, born in 1961 at Damascus and,
presently, a resident of Syria. Before the Commission she is represented
by Mr. C.M. Lilienberg, a lawyer practising in Stockholm.
The applicant grew up in Syria and lived there with her parents,
sisters and brothers. She commenced her studies at the university in
Damascus in 1979. In 1983 she had to leave the university because she was
not a member of the Baath Party and refused to become a member.
Furthermore, she was informed that the Syrian authorities suspected her
of sympathising with the Christian militia and of being against the
Syrian regime. She began to work as an agronomist as she thought this
would enable her to continue her studies. However, this proved to be
impossible and she therefore applied for a scholarship to study in France
and a visa. She received both and she left Syria in December 1984 to
pursue her studies in France. There she stayed with a brother. She
submits that since she left her job in Syria without permission the
Syrian authorities issued a prohibition against her leaving the country.
However, the applicant was not informed thereof until after she had
actually left for France.
In 1986 her parents left Syria and settled in Sweden where they
obtained a permanent residence permit. They were later joined by two of
their daughters in 1988 and a son in 1990. The latter has not, however,
obtained a permanent residence permit yet.
On 3 September 1990 the applicant arrived in Sweden from France on
a visa valid until 30 September 1990. On 9 October 1990 she requested
asylum. She submitted to the Swedish authorities that she feared being
compelled to 15 years' house arrest or similar punishment if returned to
Syria, that she would be prohibited from working there and that she would
be sentenced to a fine of approximately 300,000 SEK. She also submitted,
as a humanitarian consideration, that her parents and siblings were
living in Sweden, and that it was an Islamic tradition that an unmarried
woman should live with her parents for which reason she would end up in
a difficult social situation upon return to Syria.
While the applicant's request for asylum was being considered, her
father died on 4 December 1991 of a heart disease and one of her sisters
died on 22 November 1992 of a liver disease.
On 21 February 1992 the National Immigration Board (Statens
Invandrarverk, hereafter "SIV") rejected the applicant's request for
asylum. SIV considered that the circumstances as described by the
applicant did not disclose that the requirements for obtaining status as
a refugee in accordance with Chapter 3, section 1, subsections 1 and 3,
of the Aliens Act (utlänningslagen) were fulfilled. SIV stated
furthermore that the applicant's family situation was not of such a
character that it could constitute a valid reason for granting her a
residence permit. The applicant was refused leave to return to Sweden
before 1 March 1994 without prior permission from SIV.
The applicant appealed against the decision to the Aliens Board
(utlänningsnämnden) and referred to the period of time she had stayed in
Sweden and to the fact that a brother had in the meanwhile been granted
a permanent residence permit which increased her attachment to Sweden.
She also submitted that the death of her father and her sister was yet
another humanitarian reason to let her stay in Sweden.
However, the Aliens Board upheld the decision of SIV on
22 March 1993. The applicant could not be regarded as a refugee within
the meaning of the Aliens Act. Furthermore, the attachment to her family
or other humanitarian grounds were not sufficient to obtain a residence
permit. The applicant has returned to Syria.
COMPLAINTS
The applicant complains that her expulsion from Sweden violated her
right to respect for her family life within the meaning of Article 8 of
the Convention.
She claims that she went to Sweden to join her family. In Syria it
is a tradition that women live with the parents until their marriage. She
has no family in Syria and she maintains that it is impossible for her
family to return to that country.
THE LAW
The applicant complains that by expelling her from Sweden the
Swedish authorities have violated her right to respect for her family
life. She invokes Article 8 (Art. 8) of the Convention which provides 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 Convention does not guarantee a
right to enter or reside in a particular country. However, the Commission
has held that, in view of the right to respect for family life ensured
by Article 8 (Art. 8) of the Convention, the exclusion of a person from
a country in which his or her close relatives reside may raise an issue
under this provision of the Convention (cf., for example, No. 13654/88,
Dec. 8.9.88, D.R. 57 p. 287).
In such circumstances the Commission first examines whether such a
degree of dependency existed between the applicant and her relatives as
to give rise to the protection envisaged by Article 8 (Art. 8) of the
Convention.
The Commission notes that the applicant lived with her family in
Damascus until 1984 and again in Sweden from 1990 until she was expelled
in 1993. During the applicant's stay in France from 1984 to 1990 she
lived with one of her brothers.
In these circumstances, the Commission would not exclude that there
was a family life between the applicant and her family within the meaning
of Article 8 para. 1 (Art. 8-1) of the Convention. Consequently, the
applicant's expulsion may be considered as an interference with her right
to respect for family life.
The question which remains to be examined is whether this
interference was justified under the second paragraph of Article 8
(Art. 8) of the Convention, i.e. whether it was in accordance with law,
had a legitimate aim and was necessary in a democratic society in order
to achieve the aforesaid aim.
The Commission recalls that the decision of the Swedish authorities
not to grant the applicant a residence permit and to expel her was taken
in accordance with the Swedish Aliens Act which inter alia aims at
regulating the right of aliens to take up residence in the country.
Having regard to the close connection between the policy of
regulating immigration and considerations pertaining to the economic
well-being of the country and the public order, the Commission considers
that the decision not to grant the applicant asylum and to expel her was
taken in pursuit of legitimate aims within the meaning of Article 8 para.
2 (Art. 8-2) of the Convention, i.e. the economic well-being of the
country and the prevention of disorder.
What remains is accordingly to examine whether the interference was
"necessary". In this connection the Commission recalls, as already
indicated above, that the Convention does not in principle prohibit the
Contracting States from regulating the entry and length of the stay of
aliens, and the Commission's function is not to pass judgment on
immigration or residence policies as such. It only has to examine the
interference complained of and to weigh the legitimate aims pursued
against the seriousness of the interference with the applicant's right
to respect for her family life (cf. Eur Court H.R., Berrehab judgment of
8 March 1985, Series A no. 138, p. 16, para. 29).
In the present case the Commission recalls that the applicant, at
the age of 23, left her family home in Syria in order to pursue her
studies in France. She remained there for six years before joining her
parents who had moved to Sweden in the meantime. Furthermore, when she
applied for asylum in Sweden her application did not concern a person who
already lived there lawfully, but an alien seeking a permanent residence
permit for the first time. In such circumstances the Commission does not
consider the applicant's contention of a difficult social status in Syria
as a unmarried woman to carry any decisive weight. Furthermore, the
applicant's wish to reside permanently in Sweden was not based on any
legitimate expectations. As regards the extent of the interference, the
Commission also notes that the applicant is now 32 years old, having left
the family home already in 1984, and that she had managed to live without
her parents, for six years in France.
In these circumstances the Commission finds that respect for the
applicant's family life does not outweigh the general interest of the
economic well-being of the country and the prevention of disorder. The
interference with the applicant's right under Article 8 para. 1
(Art. 8-1) of the Convention was therefore justified under para. 2 of
Article 8 (Art. 8-2) of the Convention.
If 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