Legal summary
May 2024
Mirzoyan v. the Czech Republic - 15117/21 and 15689/21
Judgment 16.5.2024 [Section V]
Article 8
Article 8-1
Respect for family life
Refusal of applicant’s applications to extend his long-term residence permit for business purposes and for long-term residence permit for family purposes on grounds he was considered to pose a threat to national security and public order: no violation
Facts – The applicant, a Russian national, has lived in the Czech Republic with his wife, an Armenian national, and four children, all Russian nationals, since 2006. In 2009 he was granted a long-term residence permit for business purposes, valid until August 2011. Before its expiry the applicant applied for an extension. In 2014 he also applied for a new long-term residence permit for family purposes. The Department for Asylum and Migration Policy of the Ministry of Interior (“the Ministry”) issued decisions dismissing both applications. The former application was dismissed on the grounds that the applicant’s residence in the country was not in the interests of the Czech Republic and the latter application on grounds there was a reasonable risk that he could seriously disrupt public order. In reaching those decisions the Ministry relied on classified information, some of which the applicant’s representative was able to consult. The applicant unsuccessfully challenged those decisions before the domestic courts. An application for a permanent residence permit on the grounds that the applicant had been residing in the Czech Republic for at least five years was similarly dismissed on public order grounds. Proceedings are ongoing in respect of his further application, for a temporary residence permit for a family member of an EU citizen, which he filed once his adult daughter had acquired Czech citizenship in 2020.
Law – Article 8:
The applicant had lived and worked in the Czech Republic since 2006 and in 2009 had been granted a long-term residence permit for business purposes. He could thus be considered a long-term or “settled migrant” who had been allowed to take part in the host country’s society, to form relationships and to enjoy a family life there. While no formal decision on expulsion had been issued, the refusal of the domestic authorities to extend his long-term residence permit for business purposes and not to grant him another one for family purposes had deprived him of the legal right to stay in the Czech Republic and made his continued enjoyment of his family life there uncertain and prone to be interrupted. The decisions issued in the two sets of proceedings had therefore interfered with his right to respect for family life. Nevertheless, since the domestic proceedings had exclusively concerned whether the applicant had been entitled to an extension of a residence permit which had expired, or to be granted another one on different grounds, and since there had been neither an expulsion order nor a withdrawal or revocation of a valid residence permit following a criminal conviction, the criteria developed in the Court’s case-law for assessing the compatibility of such measures with Article 8 could not be transposed automatically to the applicant’s situation.
(a) Limitations of the applicant’s procedural rights – The administrative authorities, when dismissing the applicant’s applications for a residence permit, had referred primarily to the legal provisions considered relevant to his case, which could not suffice to provide adequate information about the reasons underlying the decisions taken against him. In their further explanation given to the applicant as regards his specific conduct, the Ministry had relied on classified documents and information which had had its source in the applicant’s personal activities and conduct over a relatively long period of time. In the first set of impugned proceedings, the authorities had considered that his conduct had represented a risk to national security and crime prevention, it being immaterial whether he himself had committed a crime. In the second set of impugned proceedings, the Ministry had been of the view that the applicant had repeatedly and over a long period behaved immorally, which had seriously disrupted public order. The decisions had not specified why the authorities had referred to those two different grounds and why the applicant had been considered a danger to national security and public order, nor had they mentioned the specific factual elements on the basis of which those findings had been made. They had merely provided a general description of his problematic conduct. Moreover, none of the classified documents relied on had been made available to the applicant, and the two pieces of classified information containing more specific details had not been disclosed to his lawyer. The foregoing had resulted in a significant limitation of the applicant’s procedural rights in the proceedings before the administrative authorities, which had had to be mitigated by appropriate counterbalancing safeguards.
The impugned decisions of the administrative authorities had been reviewed in judicial proceedings held up to and including the Supreme Administrative Court. Those courts had enjoyed the requisite independence within the meaning of the Court’s case-law and had had access to the classified information on which the administrative authorities’ decisions had been based. Those had been significant safeguards. On several occasions, the courts had also considered that the impugned classified information had not met the qualitative requirements laid down in the relevant domestic case-law, and had requested further details in order to verify that the applicant really did represent a danger to national security and public order. The Supreme Administrative Court had held in that regard that the specific role of a full‑jurisdiction review had been to also review the substantive correctness of the findings of fact and conclusions of law and had considered it crucial that classified information be as credible and verifiable by the courts as possible. Ultimately, that court had found that the information contained in the classified part of the administrative file had been sufficient in terms of conclusiveness, accuracy and reliability. That information had reproduced the content of specific evidence gathered in the criminal proceedings against other individuals. The Supreme Administrative Court had also found that the documents and information available had provided more than a convincing picture of the general and long-term characteristics of the applicant’s way of life and contact with a criminal community in the Czech Republic, which had not related to an isolated fact or event, but had contained a mosaic of facts that had occurred over an extended period of time. Therefore, the applicant had been at least provided with an outline of the allegations against him. In view of those considerations, the applicant had been able to have his case reviewed by independent courts which had had the power to effectively examine the grounds underlying the administrative authorities’ decisions, had had access to the classified documents and had been diligent in verifying the authenticity of those documents and the credibility and veracity of the classified information adduced in support.
The Court did not lose sight of the fact that the applicant had not been allowed to examine the classified information and that his representative had only been able to consult the pieces describing his activities generally. However, it found it understandable that they should not have been privy to the relevant pieces of classified information, given the potential implications for national security and the risk of revealing operational activities of the police. The applicant had been represented by a lawyer throughout the whole proceedings and had been able to have his matter examined in adversarial proceedings. Therefore, the court proceedings had offered him sufficient guarantees counterbalancing the limitations of his procedural rights and had not deprived him of the possibility of effectively challenging the executive’s assertions that national security and public order had been at stake.
(b) Assessment of the applicant’s family ties – The Supreme Administrative Court had held that, although the administrative authorities had been bound by the duty to establish facts beyond reasonable doubt, they could not be expected to actively seek details about an applicant’s private life or to invite an applicant to supplement his submissions, unless there appeared to be any doubts or a need to supplement information already submitted. While the applicant had not been asked for any details about his family life in his initial interview, or at any point later in the proceedings, nothing had prevented him from submitting statements relating to the circumstances of his family life and from substantiating them with relevant evidence. The Supreme Administrative Court had found that the applicant had not submitted any information likely to overturn the administrative authorities’ decisions, nor had he specified any important facts from his private or family life which would have outweighed the public interest in his no longer residing in the Czech Republic. Apart from the applicant’s procedural inactivity, every domestic authority had had regard to the State’s obligations under Article 8 and had considered the relevant elements, including the applicant’s children’s interests. Indeed, the authorities had taken account of the fact that none of the children’s residence permits had depended on the existence of the applicant’s, that his family members had had permanent residence in the Czech Republic and could continue to reside there, and that they had been financially independent of him because his wife was also a businesswoman and able to provide for the family. The fact that the applicant’s children had been living in the Czech Republic for a long time and had developed social ties in the country had not been considered a specific feature calling for a more thorough assessment. The authorities had also stated that the applicant had repeatedly travelled to Russia, so his ties with his home country had not been disrupted, and that the refusal to grant him a residence permit had not excluded him from his children’s care, since it had been entirely up to him to decide where he would exercise his parental rights and obligations. On that basis, the administrative authorities and courts had reached the same conclusion, namely that the interest served by denying the applicant a residence permit had outweighed his rights under Article 8.
While the Court acknowledged that the applicant’s family would certainly be affected by his leaving the Czech Republic, it was ready to accept the highest courts’ conclusion that the impact on his children had been rather indirect. The applicant had made no submissions about the impact his relocation would have on his children, nor had he suggested that he had played a central role in the family and that his presence in the Czech Republic had been important for their well-being. He had not put forward any reasons why his family would not be able to visit him in Russia or why they would not be able to stay in contact through modern means of communication. In addition, the applicant was currently trying to obtain a temporary residence permit for a family member of an EU citizen. If unsuccessful and if an order to leave was issued against him, he would be able to challenge it. In the absence of an expulsion order, he would also have the possibility of applying for a visa in order to visit his family in the Czech Republic. While four of his children had been minors when he had applied for extension of his residence permit for business purposes, three had remained minors when he had applied for a new residence permit for family purposes and only two were still minors at present. Given the significant amount of time which had elapsed since the beginning of the impugned domestic proceedings and the subsequent decisions denying the applicant a residence permit, and given that no formal order to leave had yet been issued against him, the applicant had been able to enjoy family life with his children for most of their childhood. Moreover, he appeared to be remaining in the Czech Republic since the proceedings relating to his application for a temporary residence permit for a family member of an EU citizen remained pending, which de facto prevented the authorities from expelling him. Therefore, the domestic authorities had given sufficient consideration to the applicant’s family ties and, with reference to the case-law of the Court, had balanced the relevant interests at stake, without overstepping the margin of appreciation afforded to them.
Conclusion: no violation (unanimously).
The Court also rejected as incompatible ratione materiae, the applicant’s complaint under Article 1 of Protocol No. 7.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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