Published on 7 October 2024
THIRD SECTION
Application no. 5590/23
S.K. and others
against Switzerland
communicated on 16 September 2024
SUBJECT MATTER OF THE CASE
The application concerns the ban on entering Switzerland of a Turkish national (the first applicant). He is married to a Swiss national (the second applicant) and they have a child (the third applicant, born in October 2021). The second and third applicants live in Switzerland, while the first applicant lives in Iraqi Kurdistan.
The first applicant claims that he was a member of the Workers’ Party of Kurdistan (PKK), which he left after many years. He was subsequently arrested by the PKK and managed to escape. He surrendered to the Kurdistan Democratic Party (KDP). He was granted a one-year residence permit for the Kurdistan Region. He claims that his residence permit has not been renewed and he fears that the KDP may expel him to Türkiye, where he risks arrest and conviction as a former member of the PKK.
In 2020 the first and second applicants married in Iraq. Subsequently, they submitted a request for family reunification in Switzerland to the Cantonal Office for Migration to obtain a residence permit for the first applicant.
In a report dated 26 November 2020, on the basis of the documents submitted by the applicants in connection with the request for family reunification, the Swiss Federal Intelligence Service (FSI) reiterated that the first applicant was a member holding a leadership position in the PKK. It concluded that an entry ban should be issued against the first applicant due to fears that the PKK could put pressure on him to carry out activities on its behalf in Switzerland. Based on this report, the Federal Office of Police (fedpol), by decision of 6 January 2021, issued an entry ban of 10 years against the first applicant on the grounds that he was a potential threat to Switzerland’s internal or external security. As a result of this entry ban, the Cantonal Office for Migration discontinued the request for family reunification. The applicants did not have a possibility to appeal against the decision to discontinue the family reunification proceedings. They did, however, appeal against the entry ban. The Federal Department of Justice and Police (FDJP) rejected the appeal by decision of 14 October 2021. The Federal Council confirmed the entry ban by decision of 23 September 2022.
The domestic authorities considered that the public interests (risk to national security and to Swiss international relations) outweighed the applicants’ individual rights under Article 8 of the Convention.
The applicants argue that the entry ban of ten years is based on an incomplete assessment of the interests at stake, and complaint that the ban is disproportionate, violating their right to respect for family life under Article 8 of the Convention and is contrary to the best interests of the child.
QUESTIONS TO THE PARTIES
1. Did the entry ban imposed on the first applicant constitute a breach of the applicants’ right to respect for their family life within the meaning of Article 8? Do the authorities have a positive obligation under Article 8 to allow the first applicant entering Switzerland (see, mutatis mutandis, Nada v. Switzerland [GC] no. 10593/08, §§ 164-99, 12 September 2012; M.A. v. Denmark [GC], no. 6697/18, § 130-94, 9 July 2021; Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-122, 3 October 2014; and El Ghatet v. Switzerland, no. 56971/10, §§ 46-53, 8 November 2016)? If yes, did they comply with this positive obligation?
2. Was the entry ban in respect of the first applicant subject to a meaningful scrutiny by a court competent to review all the relevant questions of fact and law and in line with the requirements under Article 8 (see Al‑Nashif v. Bulgaria, no 50963/99, § 123, 20 June 2002; C.G. and others v. Bulgaria, no 1365/07, §§ 43-49, 24 April 2008; and Slivenko v. Latvia [GC], no. 48321/99, §§ 93-129, 9 October 2003)?
APPENDIX
Application no. 5590/23
No.
Applicant’s Name
Year of birth/registration
Nationality
Place of residence
1.
S.K.
1985
Turkish
Erbil
2.
I.K.
1986
Swiss
Zürich
3.
H.M.K.
2021
Swiss
Zürich