Communicated on 22 September 2015
FIRST SECTION
Application no. 60186/09
Ley SHI against Russia
lodged on 9 October 2009
STATEMENT OF FACTS
The applicant, Mr Ley Shi, is a Chinese national, who was born in 1974 and lives in Ussuriysk, Russia. He is not legally represented before the Court.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
The applicant’s wife and two minor children are Russian nationals and live in Russia. The applicant arrived in Russia in 1994 (in the documents submitted the year also referred to as 2000). In November 1999 he married Ms A.M. with whom he had two children, who were born in 2002 and 2007.
On 19 October 2004 the applicant received a five-year residence permit. On an unspecified date in 2008 the applicant decided to apply for the Russian citizenship.
On 29 July 2008 the Primorskiy Regional Department of the Federal Migration Service (“the FMS department”) issued decision no. 102/08 revoking the applicant’s residence permit on the grounds that his application for the Russian citizenship had not been approved by the Federal Security Service (the FSB). According to the latter, the applicant posed a threat to the national security by calling to violent change of the constitutional order of the Russian Federation. The applicant was informed of the revocation decision on 15 August 2008.
The applicant challenged the decision of 29 July 2008 before the Ussuriysk Town Court (the Town Court) asking that it be annulled.
On 25 December 2008 the Town Court ruled that the FMS decision of 29 July 2008 had been unlawful and found for the applicant. In particular, the court stated as following:
“... revocation of the applicant’s residency permit who is married to a Russian citizen and has children implies the obligation to voluntarily leave Russia within 15 days and represents, in the court’s opinion, an interference with his private and family life the right to which is guaranteed by Article 8 of the Convention. Such measures could be taken only by an appropriate executive body and a court and only taking into account his personality along with the public danger of the committed violation.
However, the court obtained no evidence confirming the allegation that Mr Ley Shi had called for a violent change of the constitutional order, and, therefore, threatened national security of Russia ...”
The Primorskiy Regional Department of the FSB appealed the decision of 25 December 2008 to the Civil Chamber of the Primorskiy Regional Court (the Regional Court).
On 15 April 2009 the Regional Court overruled the decision of 29 July 2008 and upheld the revocation. The Regional Court did not refer to any documents submitted by the FSB which had served as the basis for the revocation. It noted in general terms that findings made by the FSB department were not subject to judicial scrutiny and that the court did not have the competence to assess issues which were within the executive’s discretionary power. The court further stated that the decision to revoke the residence permit had been issued in accordance with the procedure prescribed by law, had been reasoned by reference to the information submitted by the Regional FSB department and had been, therefore, lawful. In its decision the court left without examination the issue whether the revocation of the residence permit amounted to an interference with the applicant’s family life.
On 7 July 2009 the Deputy Chairman of the Supreme Court of the Russian Federation refused to refer the applicant’s supervisory appeal for examination by the Civil Chamber of the Supreme Court, finding no violations of substantive or procedural law which influenced the outcome of the proceedings. It did not examine whether the revocation interfered with the applicant’s family life either.
From the documents submitted it is unclear when the applicant has been removed from Russia.
B. Relevant domestic law
1. Foreign Nationals Act
On 25 July 2002 Law no. 115-FZ on Legal Status of Foreign Nationals in the Russian Federation (“the Foreign Nationals Act”) introduced the requirement of residence permits for foreign nationals. The Act contained a list of circumstances in which a residence permit must be refused or annulled. Such circumstances included enforcement of a deportation order in respect of the foreign national (section 9 (3) of the Act), imposition of administrative liability for two and more time within a year for violating residence regulations (section 9 (7)). In 2008 section 9 was amended to include an additional circumstance for the permit annulment, namely if a decision was taken that the foreigner’s presence in Russia was undesirable (see the Entry Procedure Act below).
2. Entry Procedure Act
A competent authority, such as the Ministry of Foreign Affairs or the Federal Security Service, could issue a decision that a foreign national’s presence on Russian territory is undesirable. Such a decision could be issued if a foreign national was unlawfully residing on Russian territory or if his or her residence was lawful but created a real threat to the defensive capacity or security of the State, to public order/safety, etc. If such a decision had been taken, the foreign national was to leave Russia or would otherwise be deported. That decision also formed the legal basis for subsequent refusal of re-entry into Russia (section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996, as amended on 10 January 2003, “the Entry Procedure Act”).
A foreign national who had been deported or administratively removed from Russia could not re-enter it during the five-year period following such deportation or administrative removal (section 27 § 2 of the Entry Procedure Act).
COMPLAINT
The applicant complains under Article 8 of the Convention that the revocation of his residence permit violated his right to respect for family life. In the absence of a residence permit he is obliged to leave Russia where his family lawfully resides and would be unable to visit them due to financial difficulties. He argues that he does not present any security risk and the authorities’ alleged findings to the contrary were completely unsubstantiated. His procedural rights were violated because the decision to revoke his residence permit was taken on the basis of unspecified classified materials.
QUESTIONS TO THE PARTIES
1. The Government are requested to submit copies of the following documents:
– decision no. 102/08 of 29 July 2008 by the Primorskiy Regional Department of the Federal Migration Service to revoke the applicant’s residence permit;
– document(s) by the Primorskiy Regional Department of the Federal Security Service providing the basis for the decision of 29 July 2008;
- copy of the applicant’s removal order and other documents pertaining to the applicant’s removal from Russia.
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? 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? 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 domestic proceedings? In particular, were the specific allegations mentioning the details, such as locations and dates of the actions allegedly committed by the applicant divulged to him? Were the classified materials from the Federal Security Service disclosed to him or his lawyer? Was he given a fair and reasonable opportunity to refute the facts and findings contained in those materials?
(c) Did the courts make a balancing exercise between the need to protect national security and the applicant’s right to respect for his family life?
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