AS TO THE ADMISSIBILITY OF
Application No. 25783/94
by Metin and Nurdine ÖZKARAN
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, 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 16 August 1994 by
Metin and Nurdine Özkaran against Germany and registered on
25 November 1995 under file No. 25783/94;
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 facts, as they have been submitted by the applicants, may be
summarised as follows.
The first applicant, born in 1974, is a Turkish national who
joined his parents in Germany in August 1988 and has an unlimited
residence permit. He is residing in Erlenbach. In August 1991 he
married in Turkey the second applicant, a Turkish national born in
1976. In the proceedings before the Commission they are represented
by Mr. H.H. Heldmann, a lawyer practising in Frankfurt/Main.
On 5 January 1994 the Miltenberg County Administration
(Landratsamt), acting as Aliens Office (Ausländerbehörde), dismissed
the second applicant's request for a residence permit and ordered her
to leave the territory of the Federal Republic of Germany. The County
Administration also ordered her expulsion in case that she should not
leave Germany as ordered.
In its decision, the County Administration noted the second
applicant's submissions that she had come to Germany in August 1993
with a three months' visa for visiting purposes. The Office, referring
to the relevant provisions of the Aliens' Act, found that the mere
reason of not having entered the territory with the visa for the
purpose of family unification would justify the refusal of her request
for a residence permit. In any event, there were no special
circumstances requiring that she be granted residence permit. In
particular, the applicants' marriage had been concluded in August 1991
and thus a long time before the second applicant's arrival in Germany.
Moreover, she had failed to show that the health situation of her
mother-in-law necessitated her presence in Germany, the medical
certificate in this respect being rather vague. Finally, the first
applicant had not met the condition for family unification of residence
in Germany of at least eight years, and the applicants had not
submitted that they had a child or that the second applicant was
pregnant. In this respect, the Office referred to the case-law of the
Federal Constitutional Court (Bundesverfassungsgericht), according to
which the condition of an eight years term of residence could not be
objected to under constitutional law, as the general interest in
permitting family unification only on the secure basis of an
integration of one of the foreigners in Germany outweighed the
individual interests.
The applicants, represented by Mr. Heldmann, lodged an
administrative appeal (Widerspruch) and applied with the Würzburg
Administrative Court (Verwaltungsgericht) for a stay of execution of
the decision ordering the second applicant to leave Germany and the
expulsion order.
On 16 February 1994 the Würzburg Administrative Court dismissed
the applicants' request for a stay of execution. The Administrative
Court found that the request was inadmissible to the extent that it had
been lodged by the first applicant, who was not the addressee of the
contested decisions and only indirectly concerned. As regards the
second applicant, the Administrative Court noted that she had entered
the territory of Germany with a visa for visiting purposes, although
she had intended to join her husband for more than three months. Her
entry in Germany had thus been illegal. In any event, she had no right
to a residence permit for any of the special reasons laid down in the
Regulations regarding the Aliens Act. In this respect the
Administrative Court confirmed in detail the findings of the Miltenberg
County Administration. The Court finally considered that the second
applicant had no right under European community law to join her husband
in Germany.
On 15 March 1994 the Bavarian Administrative Court of Appeal
(Verwaltungsgerichtshof) dismissed the applicants' appeal (Beschwerde).
On 9 May 1994 the Federal Constitutional Court refused to admit
the applicants' constitutional complaint (Verfassungsbeschwerde).
The main proceedings are apparently still pending.
COMPLAINTS
The applicants complain under Article 8 of the Convention about
the decision of the Miltenberg County Administration of 5 January 1994
dismissing the second applicant's request for a residence permit. The
applicants submit inter alia that the second applicant is entitled to
join her husband under European community law.
THE LAW
The applicants complain that the decision of the Miltenberg
County Administration of 5 January 1994 dismissing the second
applicant's request for a residence permit amounts to a violation of
their right to respect for their family life as guaranteed by Article 8
(Art. 8) of the Convention.
Article 8 (Art. 8) of the Convention states, so far as relevant:
"1. Everyone has the right to respect for his private and
family life ...
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 ... the economic well-being of the country, for the prevention
of disorder or crime, ... "
The Commission notes that the applicants lodged an administrative
appeal against the decision of 5 January 1994, and subsequently
exhausted remedies in court proceedings with a view to obtaining a stay
of execution. In these proceedings the administrative court, in a
summary nature, considered the second applicant's submissions regarding
her request for a residence permit. It does not appear that the second
applicant also exhausted the remedies available to her in the main
proceedings regarding the decision in question. The question,
therefore, arises whether the applicant exhausted domestic remedies,
as required by Article 26 (Art. 26) of the Convention. However, this
question can be left open as the application is anyway manifestly ill-
founded for the following reasons.
The Commission recalls that no right of an alien to enter or to
reside in a particular country is as such guaranteed by the Convention.
However, the refusal of entry, or expulsion of a person from a country
where close members of his family are living may amount to an
infringement of the right to respect for family life guaranteed in
Article 8 para. 1 (Art. 8-1) (see Eur. Court H.R., Moustaquim judgment
of 18 February 1991, Series A no. 193, p. 18, para. 36; No. 9203/80,
Dec. 5.5.81, D.R. 24 p. 239).
The Commission finds that the decision refusing the second
applicant's request for a residence permit, filed while she was staying
with the first applicant in Germany, and ordering her to leave Germany
interferes with the applicants' right to respect for their family life
within the meaning of Article 8 para. 1 (Art. 8-1). Such interference
is in breach of Article 8, unless it is justified under Article 8
para. 2 (Art. 8-2) of the Convention.
As regards the lawfulness of the interference, the Commission
observes that the German authorities, when refusing the second
applicant's request for a residence permit and ordering her to leave
Germany, relied on the relevant provisions of the German Aliens Act.
The authorities also considered that under European Community law the
second applicant had no right to join the first applicant in Germany.
The applicants' arguments as to the applicability and interpretation
of the said rules do not relate to any non-observance of the Aliens Act
or of European community law, but do no more than evince their
disagreement with the decisions of the County Administration and the
administrative courts. The interference was therefore "in accordance
with the law" within the meaning of Article 8 para. 2 (Art. 8-2).
Moreover, when taking their decisions, the German authorities
considered the public interest in the regulation of the entry of
aliens, and compliance of aliens with the prevailing rules on
immigration, such as visa regulations, and in securing that a family
unification of aliens in Germany takes place only after integration of
one of the spouses in Germany. The impugned decisions thus pursued the
interests of the economic well-being of the country and the prevention
of disorder. These are a legitimate aims mentioned in Article 8
para. 2 (Art. 8-2).
As regards the question whether the interference complained of
was "necessary in a democratic society", the Commission recalls that
the Contracting States enjoy a certain margin of appreciation in
assessing whether such a need for an interference exists, but it goes
hand in hand with European supervision (see, Eur. Court H.R., Berrehab
judgment of 21 June 1988, Series A no. 138, p. 15, para. 128; Funke
judgment of 25 February 1993, Series A no. 256-A, p. 24, para. 55).
The Commission notes that the administrative authorities had
regard to the applicants' family situation, in particular to the fact
that their marriage had been concluded in Turkey in 1991, and that the
second applicant had illegally entered Germany with a three months visa
for visiting purposes, although she intended to join the first
applicant. The German authorities further considered that the first
applicant, born in 1974, had only joined his parents in Germany in 1988
and did not fulfil the requirement of a minimum period of residence in
Germany in order to allow for the second applicant to join him on the
basis of family unification. They also found that the applicants
failed to show any other circumstances exceptionally entitling the
second applicant to stay.
In these circumstances, the Commission considers that there are
relevant and sufficient reasons for the challenged decisions. Weighing
the applicants' interests in pursuing their married life in Germany,
and the public interests at stake, the Commission finds that the German
authorities did not overstep the margin of appreciation left to them.
In this respect the Commission had particular regard to the fact that
the first applicant only came to Germany at the age of fourteen, that
he married the second applicant in 1991 in Turkey, while they were or
should have been aware of the prevailing immigration rules, and that
the second applicant illegally entered Germany. Moreover, the
applicants failed to show that they are prevented to pursue their
married life together in Turkey.
Consequently, the interference with the applicants' right to
respect for their private and family life was justified under Article 8
para. 2 (Art. 8-2) in that it can reasonably be considered "necessary
in a democratic society ... in the interest of the economic well-being
of the country" and "for the prevention of disorder and crime".
Accordingly, there is no appearance of a violation of Article 8
(Art. 8) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy