Communicated on 5 September 2016
THIRD SECTION
Application no 14918/14
Roman ROZKHANI
against Russia
lodged on 6 February 2014
STATEMENT OF FACTS
The applicant, Mr Roman Rozkhani, is a stateless person who was born in 1976 and currently lives in Toruń, Poland.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
The applicant was born in 1976 in Tbilisi, Georgia. His mother, Ms N.N., is a Russian national and lives in the settlement of Leontyevskoye in the Krasnodar Region, Russia.
In 2009 the Georgian authorities confirmed that the applicant was not a Georgian national. On 7 February 2011 they provided him with a stateless person’s identity card.
In November 2010 the applicant moved from Georgia to Russia with his wife and two children to live with his mother, who had a disability.
On 1 April 2011 the Department of the Federal Migration Service of the Krasnodar Region (Управлении Федеральной миграционной службы по Краснодарскому краю (ФМС)) (hereinafter “the FMS department”) granted the applicant a temporary residence permit.
On 27 December 2012 the FMS department[A1] took decision no. 157489, refusing to provide the applicant with a long-term residence permit. The decision referred to section (9)(1)(1) of the Foreign Nationals Act, that the applicant posed a threat to national security.
On 28 January 2013, by decision no. 47144, the FMS department[A2] revoked the applicant’s temporary residence permit issued on 1 April 2011.
The applicant challenged both decisions before the Belorechenskiy District Court of the Krasnodar Region (hereinafter “the District Court”). On 28 February 2013 the court found in the applicant’s favour and declared both decisions unlawful. In particular, the court stated:
“... the court has established, during the examination of the reasons for the refusal to issue the residence permit, that on 5 December 2012 the Department of the Federal Migration Service of the Krasnodar Region received a letter from the Department of the Federal Security Service of the Krasnodar Region concerning the lack of approval with regard to issuing a residence permit to the stateless person, Mr R. Rozhkani, in accordance with section 9(1)(1) of the Foreign Nationals Act. On the basis of that [lack of approval], the Department of the Federal Migration Service of the Krasnodar Region refused to issue a residence permit to Mr R. Rozhkani ... In connection with the refusal to issue the residence permit, on 28 January 2013 the Department of the Federal Migration Service of the Krasnodar Region revoked his temporary residence permit ...
As follows from the above, the information received in the letter of 5 December 2012 from the Department of the Federal Security Service of the Krasnodar Region served as the basis for the refusal to grant the residence permit and the revocation of the temporary residence permit. [However], the conclusion of the Department of the Federal Migration Service of the Krasnodar Region does not contain such information, whereas according to appendix 4 of Administrative Regulation no. 41, the operative part of such a conclusion should contain a well-reasoned foundation for a positive or negative decision concerning the issuance of a residence permit...
...no evidence has been provided to the court by the Department of the Federal Migration Service of the Krasnodar Region to demonstrate the reasons for taking the impugned decisions.
In such circumstances, in the absence of information and substantiating evidence, the court cannot agree with the decisions issued by the Department of the Federal Migration Service of the Krasnodar Region on 27 December 2012 concerning the refusal to grant the applicant a residence permit, and then on 28 January 2013 concerning the revocation of his temporary residence permit, ...
As the impugned decisions are not substantiated and do not comply with the requirements of the Administrative Regulations and the Foreign Nationals Act, the court finds it necessary to oblige the Department of the Federal Migration Service of the Krasnodar Region to remedy those deficiencies ...”
The FMS department appealed the above decision to the Krasnodar Regional Court (hereinafter “the Regional Court”).
On 23 April 2013 the Regional Court overruled the decision of the District Court and found that the decisions of 27 December 2012 and 28 January 2013 had been lawful. Without referring to any specific information obtained against the applicant by the Department of the Federal Security Service of the Krasnodar Region (Федеральная служба безопасности по Краснодарскому краю (ФСБ)) (“the FSS”), the Regional Court stated, amongst other things:
“... the residence permit was annulled after the local FMS department received incoming letter no. 1260 of 5 December 2012 from the Department of the Federal Security Service of the Krasnodar Region. Such documents, which contain confidential information, could only be obtained following a reasoned request and written permission from an appropriate State official. Therefore, [the letter] could not be disclosed to the applicant.
Therefore, the Department of the Federal Migration Service of the Krasnodar Region acted within its mandate and in compliance with domestic law ...”
The applicant appealed the above decision to the Civil Chamber of the Regional Court.
On 9 July 2013 the Civil Chamber of the Krasnodar Regional Court refused to examine the applicant’s cassation appeal on the merits, finding no violations of substantive or procedural law which had influenced the outcome of the proceedings, and upheld the decision of 23 April 2013.
On 13 September 2013 the Supreme Court of Russia refused to transfer the applicant’s cassation appeal to its chamber for administrative cases, and did not examine it.
On 25 October 2013 the FMS department issued a decision on the applicant’s deportation. On an unspecified date between the end of October and the middle of November 2013 the applicant was deported to Poland.
B. Relevant domestic law
Law no. 115-FZ of 25 July 2002 on the Legal Status of Foreign Nationals in the Russian Federation (hereinafter “the Foreign Nationals Act”) provides that a foreign national married to a Russian national living on Russian territory is entitled to a three-year residence permit (section 6(3)(4)).
A three-year residence permit (разрешение на временное проживание) may be refused or revoked only in circumstances which have been exhaustively defined, and particularly if the foreign national in question advocates a radical change to the constitutional foundations of the Russian Federation, or otherwise threatens the security of the Russian Federation or its citizens (section 7(1)(1)).
If a three-year residence permit has been revoked, the foreign national concerned may apply for a new three-year residence permit no earlier than a year after the revocation (section 6(6)).
A three-year residence permit may not be issued during the five-year period following a person’s administrative removal or deportation from Russia (section 7(1)(3)).
During the validity of a three-year residence permit, a foreign national may apply for a renewable five-year residence permit (вид на жительство). Such an application is only possible after the foreign national has lived in Russia for a year at least on the basis of a three-year residence permit (section 8(1)-(3)).
COMPLAINTS
The applicant complains under Article 8 of the Convention that the revocation of his residence permit violated his right to respect for his family life. He argues that he does not present any security risk and that the authorities’ findings to the contrary were unsubstantiated. His procedural rights were violated because the decisions revoking his temporary residence permit and refusing to grant him a permanent residence permit were taken on the basis of classified material.
QUESTIONS to the parties
1. What were the motives and factual grounds for the decisions refusing to provide the applicant with a long-term residence permit and subsequently revoking his temporary residence permit?
2. Did the revocation of the applicant’s residence permit constitute an interference with his right to respect for his family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention? Was the decision-making process leading to the measure of interference fair and such as to afford due respect to the interests safeguarded by Article 8 of the Convention? In particular:
(a) What was the scope of review of the domestic courts which examined the applicant’s complaint against the revocation of his residence permit? Was the judicial review limited to ascertaining that the residence permit had been revoked in accordance with the procedure prescribed by law and, in particular, that the materials which formed the basis for the revocation had been issued within the administrative competence of the Federal Security Service? Did the courts have competence to verify whether the decision to revoke the residence permit had been made on genuine national security grounds and whether the executive was able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant presented a risk in that regard?
(b) Was the applicant afforded sufficient procedural guarantees in the domestic proceedings? In particular, were the specific allegations mentioning the locations and dates of the actions allegedly committed by the applicant divulged to him? Was the classified material from the Federal Security Service disclosed to him? Was he given a fair and reasonable opportunity to refute the facts and findings contained in that material?
(c) Did the courts strike a balance between the need to protect national security and the applicant’s right to respect for his private and family life?
3. The Government are requested to submit copies of the relevant documents, including:
- the letter from the Department of the Federal Security Service of the Krasnodar Region, received by the Department of the Federal Migration Service of the Krasnodar Region, concerning the lack of approval in respect of the issuance of the applicant’s residence permit;
- decision no. 157489 of 27 December 2012, decision no. 47144 of 28 January 2013 and the decision of 25 October 2013 by the Department of the Federal Migration Service of the Krasnodar Region concerning the applicant’s residence permit and deportation.
- documents confirming the applicant’s deportation from Russia.
The Court notes that access to the documents submitted may be restricted, pursuant to Rule 33 §§ 1 and 2 of the Rules of Court.
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