Communicated on 19 September 2016
THIRD SECTION
Application no. 30764/13
Akhmed Shakh RAZIGDAD
against Russia
lodged on 16 April 2013
STATEMENT OF FACTS
The applicant, Mr Akhmed Shakh Razigdad, is an Afghan national who was born in 1967 and lives in Moscow. He is represented before the Court by Ms Svetlana Gannushkina, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Between 1986 and 1992 the applicant was an officer of the Afghan security service, KhAD/WAD (Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati). Between 1992 and 1996 he worked as a market vendor in Mazar-e-Sharif.
At some point in 1996 the applicant had to leave Afghanistan owing to persecution by the mujahideen for his earlier work for the security service.
In October 1996 the applicant arrived in Russia on a visa. It is unclear on what basis the applicant continued to reside in Russia after the visa expired.
On 8 September 1999 the applicant applied for refugee status in Russia. On 13 September 1999 the Federal Migration Service (“the FMS”) rejected his application. The applicant did not appeal against that decision.
On 25 November 1999 the applicant married Ms A.G., a Russian national. Between 1999 and 2002 the couple had two sons and a daughter, all of whom are Russian citizens.
In December 2006 the applicant applied for temporary asylum in Russia. On 19 March 2007 the Moscow department of the FMS rejected his application as unsubstantiated. The applicant did not appeal.
In February 2007 the applicant renewed his Afghan passport until February 2012 at the embassy of Afghanistan in Moscow.
In April 2010 the applicant again applied for temporary asylum in Russia. On 21 July 2010 the Moscow department of the FMS again rejected his application.
The applicant appealed against the decision of 21 July 2010 to the FMS of the Russian Federation. On 14 December 2010 it granted the appeal, overruled the refusal to grant him temporary asylum and ordered a fresh examination of the case. The decision stated, amongst other things, the following:
“... granting the applicant temporary asylum in the Russian Federation would ... ensure compliance with the principle of the unity of family under Article 9 of the Convention on the Rights of the Child. As the applicant is the breadwinner for his wife and three children, his children would be deprived of both financial support and parental care if he was returned to Afghanistan.
A move to Afghanistan with the applicant of his wife and children, all of whom are Russian citizens, is impossible as they might risk ill-treatment in connection with the general situation in the country, including ill-treatment from the local population.
In the light of the above, and having regard to the principles of humaneness, in order to ensure the rights of the children and the unity of the applicant’s family, the FMS’s decision refusing to grant temporary asylum should be re-examined ...”
On 20 July 2011 the Moscow department of the FMS again examined the applicant’s application for temporary asylum and rejected it. The decision stated that the application had been motivated by a desire to legalise the applicant’s immigration status in Russia and not by the alleged risk of ill‑treatment. The decision did not examine the applicant’s allegations of a violation of his right to respect for his personal and family life.
On 27 January 2012 the applicant appealed against the refusal of 20 July 2011 to the Preobrazhenskiy District Court (“the District Court”) in Moscow. The applicant referred to a risk of ill-treatment if he was deported to Afghanistan and to a violation of his right to respect for his private and family life as neither he nor his family had any connection with Afghanistan. He further stated that he could not apply for a residence permit in Russia as he had no valid visa, which was a prerequisite for such a procedure, and that going back to Afghanistan to apply there for a new Russian visa was not possible owing to the risk of ill-treatment.
On 27 March 2012 the District Court dismissed the applicant’s appeal. On 12 November 2012 the Moscow City Court (“the City Court”) upheld that decision on further appeal.
On 17 December 2012 the Moscow City Court dismissed an application by the applicant for examination of his appeal in cassation and on 22 March 2013 the Supreme Court of the Russian Federation upheld that decision.
It is unclear whether the applicant has been deported from Russia.
It can be seen from the applicant’s submission that he told the Russian authorities that he had lost all family and social ties with Afghanistan, that his family lived in Russia and had no connections whatsoever with Afghanistan. In addition, his parents and four siblings lived in Sweden and he had no family left in Afghanistan. If he was forced to return to Afghanistan he would have nowhere to live and no income to survive on. In addition, living in Russia meant he did not follow Afghan traditions or practise Islam in the same way as people who lived in Afghanistan, which would lead to significant changes in his lifestyle if he was deported there.
B. Relevant domestic law
For the relevant domestic law and practice see Muradeli v. Russia, no. 72780/12, §§ 45-54, 9 April 2015.
COMPLAINTS
The applicant complains under Articles 3 and 8 of the Convention that his deportation to Afghanistan would subject him to a risk of ill-treatment and would adversely affect his right to respect for his personal and family life. Under Article 13 of the Convention, he complains of the lack of effective remedies against those violations.
QUESTIONS TO THE PARTIES
1. Were the applicant’s complaints concerning a violation of his right to respect for his private and family life duly examined by the domestic authorities? Has there been an interference with the applicant’s right to respect for his private and family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference necessary in terms of Article 8 § 2 of the Convention?
2. Did the applicant have at his disposal effective domestic remedies against the alleged violation of Article 8 of the Convention as required by Article 13 of the Convention (see, for example, De Souza Ribeiro v. France [GC], no. 22689/07, § 83, ECHR 2012)?
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