AS TO THE ADMISSIBILITY OF
Application No. 31042/96
by R. K.-V.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 26 June 1996, the following members being present:
MM. H. DANELIUS, President
S. TRECHSEL
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
Ms. M.-T. SCHOEPFER, 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 11 April 1996 by
R. K.-V. against Switzerland and registered on 18 April 1996 under file
No. 31042/96;
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, born in 1975 and a citizen of former Yugoslavia,
resides at Lucerne in Switzerland. Before the Commission she is
represented by Mr M. Spescha, a lawyer practising in Zürich.
Particular circumstances of the case
The applicant's father has a permission to establish domicile
(Niederlassungsbewilligung) in the Canton of Lucerne. Upon his
request, the Aliens Police of the Canton of Lucerne granted his
daughter, the applicant, a permission to establish domicile with her
parents on 12 March 1992.
The authorities thereby relied on Section 17 para. 2 of the
Federal Act on the Residence and Domicile of Aliens (Bundesgesetz über
Aufenthalt und Niederlassung der Ausländer; see below, Relevant
domestic law).
On 9 November 1992, while in former Yugoslavia, the applicant
married her compatriot S.K. Their child, born on 5 April 1993, died
within one week.
Following these occurrences the applicant was invited to appear
before the Aliens Police where on 19 October 1993 she was asked why she
had not remained with her husband in former Yugoslavia. She replied
"I have entered Switzerland with the intention to look for employment
here and then to let my husband join me in Switzerland" ("Ich bin mit
dieser Absicht in die Schweiz eingereist, dass ich mir hier eine
Arbeitsstelle suchen werde und dann meinen zukünftigen Mann in die
Schweiz nachziehen lassen werde."). The applicant further stated that
she had known her husband for 10 years and had had a relationship with
him since 1991.
On 20 January 1994 the Aliens Police of the Canton of Lucerne
withdrew the applicant's permission to establish domicile. The Aliens
Police found that while the applicant had entered Switzerland in 1992
to join her parents, she had from the beginning had the intention to
found a family with her friend and later husband. By remaining silent
on essential facts she had therefore obtained a permission to establish
domicile on false grounds. As the applicant had not lived long in
Switzerland, and her husband lived in their home country, she could be
expected to return and lead a family life with him in former
Yugoslavia.
On 6 December 1994 the Government (Regierungsrat) of the Canton
of Lucerne dismissed the applicant's further appeal.
The applicant's administrative law appeal (Verwaltungsgerichts-
beschwerde) was dismissed by the Federal Court (Bundesgericht) on
27 November 1995.
In its decision the Court recalled that the applicant had on
19 October 1993 explained to the Aliens Police that she had entered
Switzerland with the intention of looking for employment and of letting
her husband join her. Thus, she had herself admitted that, rather than
intending to live together with her parents, she wanted as soon as
possible to found a new family with her husband. Thus, she had wanted
to use the institution of the family reunion for a purpose for which
it was not conceived. Had the Aliens Police known about this
intention, the applicant would certainly not have received a permission
to establish domicile in Switzerland.
The Court which also relied on Section 9 para. 4 of the Federal
Act on the Residence and Domicile of Aliens (Bundesgesetz über
Aufenthalt und Niederlassung der Ausländer; see below, Relevant
domestic law) further found that the applicant was not prevented from
leading her married life together with her husband in their common home
country.
Relevant domestic law
According to Section 17 para. 2 of the Federal Act on the
Residence and Domicile of Aliens children under 18 years are entitled
to be included in the permission to establish domicile of their parents
if they live together with the parents.
Section 9 para. 4 of the Act provides that the permission to
establish domicile will be withdrawn if it was obtained by means of
false indications or by concealing relevant facts.
Section 8 para. 4 of the Ordinance on this Act (Vollzugsver-
ordnung) provides that there will be no such entitlement if the
foreigner residing in Switzerland has concealed the presence of a
family member during the proceedings (wenn der Ausländer das Vorhanden-
sein eines Familienglieds im Bewilligungsverfahren verschwiegen hat).
COMPLAINTS
1. The applicant complains under Article 8 of the Convention that
her permission to establish domicile in Switzerland has been withdrawn.
She complains in particular of the conclusion of the Swiss authorities
that a girl of 16 years and a half will lose her right to live with her
parents if the family reunion at least indirectly had the purpose that
she herself would wish to found a family in the not too distant future
and would wish her future husband to join her in Switzerland.
The applicant submits in particular that the measure was not "in
accordance with the law" within the meaning of Article 8 para. 2 of the
Convention. Thus, none of the grounds stated in Section 8 para. 4 of
the Ordinance applied to her or her parents. Rather, the conduct of
which they were accused concerned internal facts, namely prospects of
the future.
The applicant further complains that the withdrawal of her
permission to establish domicile was not necessary in a democratic
society in that it was disproportionate and it did not serve the
interests of public order.
2. Under Article 14 taken together with Articles 8 and 12 of the
Convention the applicant complains of discrimination on account of her
sex and her intention to marry. Had she been a homosexual she would
not even have considered marriage and she could not then have had the
detrimental intentions which the Swiss authorities now lay against her.
3. Under Article 6 of the Convention the applicant complains of the
manner in which the Aliens Police questioned her.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention that her permission to establish domicile in Switzerland was
withdrawn when it transpired that she had entered Switzerland with the
intention eventually to live there with her then prospective husband.
Article 8 (Art. 8) of the Convention states, insofar as relevant:
"1. Everyone has the right to respect for his ... 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 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 no right of an alien to enter or to
reside in a particular country is as such guaranteed by the Convention.
Nevertheless, the 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) of the Convention (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 has therefore examined whether in the present case
the refusal of the Swiss authorities to grant the applicant the
permission to establish domicile in Switzerland will separate her from
close members of her family and thus infringe her right to respect for
family life within the meaning of Article 8 (Art. 8) of the Convention.
In examining such cases the Commission must consider whether a
sufficient link exists between the relatives concerned as to give rise
to the protection of "family life" within the meaning of Article 8
(Art. 8) of the Convention. Generally, this involves married couples,
on the one hand, and, on the other, cohabiting dependents such as
parents, spouses and their dependent, minor children. Whether it
extends to other relationships depends on the circumstances of the
particular case (see No. 10375/83, Dec. 10.12.84, D.R. 40, p. 196).
The Commission has therefore examined the applicant's links with
her parents, on the one hand, and with her husband, on the other.
As regards the applicant's links with her parents, the Commission
notes that the applicant is meanwhile 20 years old, and there is no
evidence of any dependence on her parents, involving more than the
normal, emotional ties. Before the Commission the applicant has not
referred to any other circumstances which would indicate particularly
close links with her family residing in Switzerland.
As regards the links with her husband, the Commission notes the
applicant's declared intention of living her marriage together with her
husband. The latter lives in former Yugoslavia. In the Commission's
opinion, there is nothing to prevent the applicant from living her
marriage together with her husband in their home country.
The applicant has not, therefore, sufficiently made out an
interference with her rights under Article 8 para. 1 (Art. 8-1) of the
Convention. It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. Under Article 14 taken together with Articles 8 and 12
(Art. 14+8+12) of the Convention the applicant complains of
discrimination on account of her sex and her intention to marry.
However, the Commission has just found that the applicant has not
demonstrated any particularly close links with her parents in
Switzerland and that she can lead her family life in former Yugoslavia.
It follows that no separate issue arises under Article 14 taken
together with Articles 8 and 12 (Art. 14+8+12) of the Convention. This
part of the application is therefore manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. Under Article 6 (Art. 6) of the Convention the applicant
complains of the manner in which the Aliens Police questioned her.
However, the Commission recalls that the decision whether an alien
should be allowed to stay in a country or be expelled does not involve
either the determination of the alien's civil rights or obligations,
or a criminal charge, within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention (see No. 8118/77, Dec. 19.3.81, D.R. 25,
p. 105). The remainder of the application is therefore incompatible
ratione materiae with the provisions of the Convention, pursuant to
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy