AS TO THE ADMISSIBILITY OF
Application No. 36287/97
by Nguanga MOMIQUE-POLA
against Sweden
The European Commission of Human Rights sitting in private on
10 July 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
M.P. PELLONPÄÄ
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms; Having regard to the
application introduced on 5 June 1996 by Nguanga MOMIQUE-POLA against
Sweden and registered on 30 May 1997 under file No. 36287/97;
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 applicant is a national of the Democratic Republic of Congo
(formerly Zaire), born in 1940 and resident at Älvsjö. She is
represented by Mr Per Stadig, a lawyer in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant entered Sweden in December 1994 and requested
asylum. Later she withdrew this request and instead asked for a
residence permit on account of her ties to her only remaining child,
her daughter M, born in 1965. M had been living in Sweden since 1989
by virtue of a permanent residence permit and had children of her own.
The applicant had allegedly cared for those children until March 1994,
when M had fetched them from Zaire (presently the Democratic Republic
of Congo). The applicant's husband had allegedly died in 1990. Her
three further children had either died or disappeared. In the Swedish
investigation of her claims she gave contradictory information on
various points regarding her children and other matters. Her counsel
claimed that she was illiterate and had only a very feeble idea of time
and place.
On 12 May 1995 the National Immigration Board (Statens
invandrarverk) rejected the request for a residence permit, ordered the
applicant's expulsion and prohibited her from returning to Sweden
during a period of two years. The Board noted that a residence permit
should, save for exceptional reasons, be sought before the alien's
arrival in Sweden. M was over 20 years of age and had founded her own
family. The two therefore no longer belonged to the same nuclear
family. The applicant could thus not be granted a residence permit for
family reunification purposes, nor were there any other exceptional
reasons for granting a residence permit in response to a request lodged
in Sweden.
The applicant appealed, stating, inter alia, that she was
illiterate, suffering from angina pectoris and other illnesses. She
would therefore be unable to cope with a return to Zaire. She adduced
copies of certain patient records and requested to be informed if
further medical evidence was considered necessary.
On 30 May 1996 the Aliens Appeals Board (Utlänningsnämnden)
rejected the appeal. It noted that M had previously referred to another
woman as her mother. The names of M's children and siblings did not
correspond to those stated by the applicant. Considering the
contradictory information the Aliens Appeals Board concluded that the
alleged family relationship between the applicant and M had not been
credibly substantiated. Allowances were made for the applicant's
alleged illiteracy and her feeble idea of time and place.
In the summer of 1996 M travelled to Zaire in order to find
someone who could care for the applicant. Due to the fighting in the
country and an illness the daughter could not return to Sweden until
February 1997, not having found any carer for the applicant.
In March 1997 the applicant lodged a new application with the
Aliens Appeals Board and claimed that due to an amendment to the Aliens
Act (utlänningslag 1989:529) she now had the right to obtain a
residence permit even if she had sought the permit after having entered
Sweden. Furthermore, in the appeal proceedings in 1996 she had not been
afforded an opportunity to prove the veracity of information which the
Aliens Appeals Board eventually concluded was not credible. For
instance, as an illiterate the applicant had stated the nicknames of
M's children and not their official names as referred to by M.
On 14 April 1997 the Aliens Appeals Board rejected the fresh
application, finding no essential new facts. The amendment to the
Aliens Act implied that the alien could, in some situations, be granted
a residence permit on account of a relationship with close relatives
who were already residing in Sweden even if the alien had sought the
permit only after entering Sweden. According to the travaux
préparatoires to the amendment, the alien and the relatives should have
lived together immediately before the relatives' move to Sweden. The
request for a family reunification was to be made relatively quickly
after the relatives settled in Sweden. The Aliens Appeals Board noted
that the applicant's alleged daughter had come to Sweden on
22 December 1989. She had received a residence permit on 2 July 1992.
The applicant had not arrived in Sweden until 27 December 1994 and
their alleged relationship was thus not a reason to grant the applicant
a residence permit on the basis of the amended legislation.
COMPLAINTS
1. Under Article 8 of the Convention the applicant originally
complained that her expulsion would fail to respect her family life,
as she would be separated from her daughter and grandchildren in
Sweden. She also referred to her age and state of health.
In her further complaint of 17 June 1998 the applicant stated
that the authorities had begun to plan the enforcement of the expulsion
order. Such enforcement would violate Article 8 in view of the current
precarious circumstances in the receiving State. The applicant
furthermore submitted that in the receiving country she would be unable
to obtain treatment of medication against her hepatitis. Finally, the
threat of enforcement is allegedly causing her great distress.
2. The applicant complains further that she did not get a fair and
public hearing within a reasonable time by an independent and impartial
tribunal established by law. The question to be determined concerned
family members' right to live together, this being a "civil right"
within the meaning of Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 June 1996. The applicant
requested the Commission to indicate to the Swedish Government that it
was desirable in the interests of the parties and the proper conduct
of the proceedings before the Commission not to expel the applicant to
Zaire until the Commission had been able to examine the application.
On 4 July 1996 the Commission decided not to indicate to the
Government, pursuant to Rule 36 of the Commission's Rules of Procedure,
the measure suggested by the applicant.
The application was registered on 30 May 1997.
On 17 June 1998 the applicant again requested the Commission to
indicate to the Swedish Government that it was desirable in
the interests of the parties and the proper conduct of the proceedings
before the Commission not to expel the applicant to the Democratic
Republic of Congo (formerly Zaire) until the Commission had been able
to examine the application.
On 10 July 1998 the Commission decided not to indicate to the
Government, pursuant to Rule 36 of the Commission's Rules of Procedure,
the measure suggested by the applicant.
THE LAW
1. The applicant complains that her expulsion would fail to respect
her family life, as she would be separated from her daughter and
grandchildren. She also refers to the current precarious circumstances
in the receiving State and to her state of health. 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 as a matter of well-established
international law and subject to its treaty obligations, a State has
the right to control the entry, residence and expulsion of
non-nationals (see, e.g., the Abdulaziz, Cabales and Balkandali v. the
United Kingdom judgment of 28 May 1985, Series A no. 94, p. 34,
para. 67). It follows that Article 8 (Art. 8) does not guarantee to a
non-national a right to enter or remain in a particular country. Nor
can Article 8 (Art. 8) be considered to impose on a State a general
obligation to respect immigrants' choice of the country of their
matrimonial residence and to authorise family reunification in its
territory. Consequently, this provision does not guarantee a right to
choose the most suitable place to develop family life. In order to
establish the scope of the State's obligations the facts of the case
must be considered (see, e.g., Eur. Court HR, Ahmut v. the Netherlands
judgment of 28 November 1996, Reports of Judgments and Decisions 1996-
VI, p. 2033, paras. 67, 71; Gül v. Switzerland judgment of 19 February
1996, Reports of Judgments and Decisions 1996-I, pp. 187-188,
para. 38). An issue may arise under Article 8 (Art. 8) if a person is
excluded, or removed, from a country where his close relatives reside
or have the right to reside (see eg. No. 7816/77, Dec. 19.5.77, D.R.
9, p. 219; No. 9088/80, Dec. 6.3.82, D.R. 28, p. 160; No. 9285/81, Dec.
8.7.82, D.R. 29, p. 205).
While it is true that Article 8 (Art. 8) contains no explicit
procedural requirements, the Convention organs are entitled to have
regard to the decision-making process on the domestic level in order
to determine whether it has been conducted in a manner which, in all
the circumstances, is fair and affords due respect for the interests
protected by Article 8 (Art. 8) (see, e.g., B. v. the United Kingdom
judgment of 8 July 1987, Series A no. 121-B, pp. 72-73, para. 63;
McMichael v. the United Kingdom judgment of 24 February 1995, Series
A no. 307-B, p. 57, para. 91). In the present case it has not been
argued that the applicant's expulsion would not be "in accordance with
the law" or that it would not pursue a legitimate aim. The necessity
criterion in Article 8 para. 2 (Art. 8-2) implies the existence of a
pressing social need and, in particular, requires that the measure must
be proportionate to the legitimate aims pursued. It has to be
determined whether a fair balance has been struck between the
applicant's right to respect for her alleged family life and the
legitimate interests of the State which furthermore must be afforded
a certain margin of appreciation (see, e.g., Eur. Court HR, Boughanemi
v. France judgment of 24 April 1996, Reports of Judgments and Decisions
1996-II, pp. 609-610, paras. 41-42).
The Commission notes that the expulsion order concerning the
applicant has not been quashed but appears to have been left unenforced
since May 1996. Assuming that the order were now to be enforced, the
Commission recalls that it was found in the domestic proceedings that
the applicant, though represented by counsel, had not adduced evidence
capable of convincing the Swedish authorities that she was M's mother.
The Commission sees no reason to question that finding. At any rate,
it has not been argued that the applicant's alleged daughter and
grandchildren would be unable to follow her to the applicant's country
of origin which appears to be the same as theirs. In the overall
circumstances of the case the Commission therefore finds that the
Swedish authorities were reasonably entitled to refuse her a residence
permit.
As to the decision-making process, the Commission notes that in
her appeal the applicant, through her counsel, requested to be informed
if further medical evidence was considered necessary. There is no
indication that the applicant was prevented from adducing, throughout
the domestic proceedings, whatever evidence she felt it necessary to
adduce. The procedural guarantee inherent in Article 8 (Art. 8) cannot
be interpreted so as to render it compulsory for decision-making
authorities to afford a party an opportunity to lodge further
submissions if the evidence initially adduced is not considered
sufficient. For the purposes of Article 8 (Art. 8) the applicant was,
accordingly, sufficiently involved in the decision-making process.
In sum, this complaint does not disclose any lack of respect for
the applicant's family life within the meaning of Article 8
(Art. 8) .
It follows that this part of the application is manifestly
ill-founded with the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains that she did not get a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law. The question to be determined concerned
family members' right to live together, this being a "civil right"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention,
which, in relevant parts, reads as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing by
an independent and impartial tribunal established by law.
..."
The Commission has previously held that a decision as to whether
an alien should be allowed to stay in a country does not involve any
determination of his or her "civil rights" (see, e.g., No 12122/86,
Dec. 16.10.86, D.R. 50, p. 268 with further reference). In the present
case the proceedings complained of concerned precisely the applicant's
right to remain in Sweden. In these circumstances the proceedings
complained of did not involve a determination of the applicant's "civil
rights" within the meaning of Article 6 para. 1 (Art. 6-1). This
provision is therefore inapplicable in the instant case.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy