THIRD SECTION
DECISION
Applications nos. 7177/15 and 7180/15
Deepa THANNAPULI HEWAGE and Others against Cyprus
and Nimal JAYAWEERA against Cyprus
The European Court of Human Rights (Third Section), sitting on 8 September 2020 as a Committee composed of:
Erik Wennerström, President,
Georgios A. Serghides,
Lorraine Schembri Orland, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above applications lodged on 5 January 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in application no. 7180/15 is Mr Nimal Jayaweera (“first applicant”), a Sri Lankan national born in 1955. Application no. 7177/15 was lodged by his wife, Mrs Deepa Thannapuli Hewage (“second applicant”) and their daughters Madushanie Jayaweera (“third applicant”) and Dilini Rangika Jayaweera (“fourth applicant”). They were born in 1963, 1989 and 2002 respectively and at the time of their application to the Court they were also Sri Lankan nationals. The first, second and fourth applicants live in Limassol, and the third applicant lives in the United Kingdom. The applicants are represented before the Court by Ms N. Charalambidou, a lawyer practising in Nicosia.
2. The Cypriot Government (“the Government”) were represented by their Agent, Mr C. Clerides, Attorney General of the Republic of Cyprus.The circumstances of the cases
3. On 27 August 1993 the second applicant came to Cyprus and was granted a temporary residence permit to work as a domestic worker.
4. On 23 June 1995 the first applicant joined her in Cyprus on a temporary employment entry and residence permit to work in a company.
5. In September 1996, at the age of seven, the third applicant joined them in Cyprus.
6. The residence permits of the first and second applicants were renewed yearly until 7 July 2001. Requests for the renewal of their permits made in July 2001 were rejected. Subsequently, deportation and detention orders were issued but were not enforced.
7. On 5 January 2002 the fourth applicant was born.
8. Between 12 March 2002 and 30 June 2009 the authorities had on seven occasions temporarily approved the applicants’ repeated requests for residence permits. The applicants’ requests often remained unanswered for long periods of time, leading to interruptions in their residence status. However, following the approval, the applicants often omitted to duly submit the requisite applications to the Police Immigration Unit to have their permits properly issued.
9. In 2009 the third applicant finished school. On 11 September 2011 she left Cyprus and went to the United Kingdom to study, through Sri Lanka, due to the lack of a residence permit from Cyprus.
10. On 20 July 2013 the first applicant was arrested for not having a residence permit. Detention and deportation orders were issued against him. He successfully challenged these through recourse no. 5868/13 before the Supreme Court (first instance revisional jurisdiction) and was released from detention on 28 November 2013. The Government later appealed (no. 4/2014) with the Supreme Court (appellate jurisdiction).
11. Meanwhile, on 31 July 2013 the Ombudsman issued a report concerning the family (report no. 1564/2011), affirming the applicants’ hardships as set out before her in various letters. She recommended, inter alia, the regularisation of the family’s legal status.
The first and second applicants’ naturalisation applications
12. In the meantime, on 21 June 2002 the second applicant filed an application for naturalisation. This was rejected on 14 August 2002 and subsequently on two further occasions following re-examination by the authorities. The applicant successfully challenged all decisions rejecting her naturalisation through recourses nos. 896/2003, 26/2008 and 682/2014.
13. On 26 March 2004 the first applicant also applied for naturalisation. His application was rejected in 2007. Unlike his wife, the judgment issued in his favour (recourse no. 27/2008) was reversed upon appeal (no. 37/2010) by the Supreme Court (appellate jurisdiction).Developments following the lodging of the applications
14. From 2015 onwards, following several requests by the applicants, their residence permits were approved on various occasions and at different intervals. In short, the first and second applicants’ last work and residence permits were approved with validity until 2 February 2019 and 16 October 2020 respectively and the fourth applicant’s student permit until 16 October 2019.
15. On 11 October 2018 a third judgment was issued in favour of the second applicant’s recourse no. 682/2014 (see paragraph 12 above). Subsequently, on 11 April 2019 she was granted Cypriot citizenship.
16. On 4 September 2019 the Cypriot authorities granted the first applicant a residence permit as a spouse of a Cypriot citizen valid until 8 May 2021, with the possibility of renewal. As a result, the authorities abandoned appeal no. 4/2014 (see paragraph 10 above).
17. The third applicant still resides in the United Kingdom. She does not hold, nor has applied for, a residence permit in Cyprus since 2011.
18. The fourth applicant filed an application to be registered as a Cypriot national by origin in accordance to section 110(3) of the Civil Registry and Migration Law (see paragraph 21 below), the examination of which is still pending.Relevant domestic law and practiceThe Aliens and Immigration Law (Cap. 105, as amended) and the Aliens and Immigration Regulations (242/72, as amended)
19. The entry, residence and expulsion of aliens are regulated by the Aliens and Immigration Law (Cap. 105, as amended).
20. The Law is supplemented by the Aliens and Immigration Regulations of 1972 (as amended). Non-European citizens are allowed to apply for a residence permit in Cyprus on the basis of the Categories referred to in Regulations 5 and 6(2) of the Aliens and Immigration Regulations. Regulation 5, Category E, provides that a person can apply to obtain an immigration permit, if they have been offered permanent employment in the Republic, which will not create undue local competition. Regulation 6(2) provides that the Minister of Interior may provide an immigration permit to an immigrant who does not belong to the categories set out in Regulation 5, provided that such permit is not to the detriment of Cypriot citizens.The Civil Registry Law (no. 141(I)/2002, as amended)
21. Section 110(3) of the Civil Registry Law provides that the Minister of Interior may arrange the registration as a Cypriot citizen, of the minor child of any citizen of the Republic of Cyprus, following an application of the minor’s parent or guardian.The Law on the Right of European Union Citizens and their Family Members to Move and Reside Freely within the Territory of the Republic of Cyprus, 2007 (no. 7(I)/2007, as amended).
22. The relevant provisions of this Law read as follows:
Section 2 - Definitions
“Union citizen” means any person who has the citizenship of a Member State of the European Union;
“family member” means:
(a) the spouse;
(b) the direct descendants who are under the age of 21 or are dependants [...];”
Section 4 – Applicability of the Law
“(1) The present Law applies to every Union citizen who arrives or resides in the Republic of Cyprus as well as their family members, regardless of their citizenship, who accompany them during their transition to Cyprus or who arrive to Cyprus to meet them.
(2) Without prejudice to any rights of free movement and residence of the interested parties, the entry and residence in the Republic in accordance to the Aliens and Immigration Law, of the following persons is facilitated:
(a) Any other member of the family, regardless of citizenship, who does not fall into the definition of the term “family member” under section 2, provided that he/she is dependent on the Union citizen who has a primary right of residence.”
Section 21 – Related rights
“Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there.”
Section 25 - Retention of the right of residence by family members in the event of death or departure of the Union citizen
“(2) The Union citizen’s death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the Republic as family members for at least one year before the Union citizen’s death:
It is provided that before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of Cyprus. [...]”
23. Lastly, section 26 of the Law provides for the retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership, while section 30 of the law, titled “protection against expulsion” provides, inter alia, that before taking an expulsion decision on grounds of public policy or public security, the authorities shall take into account the applicant’s personal circumstances including the social and cultural integration in the Republic and the extent of his/her links with the country of origin.Relevant domestic case law
24. In the case of Guilan Zhu v. The Republic of Cyprus (recourse no. 1079/2014) of 23 December 2014 the Supreme Court (first instance revisional jurisdiction) held that Law 7(I)/2007 does not apply mutatis mutandis to family members of Cypriot citizens. The case concerned the deportation and detention orders issued against a Chinese national, spouse of a Cypriot citizen who had apparently, for reasons outside her control, abandoned the spouse’s residence, and her spouse later passed away. The court noted that her right to reside in Cyprus, to the extent that it depends on her spouse’s right to reside and move is not autonomous under Law 7(1)/2007. However, it noted that her right to reside in Cyprus as the spouse of a European citizen with the right to protection of family life did not cease. The court held that the decisions ordering the deportation and detention of the claimant, who was still the wife of a Cypriot national, with legal residence in Cyprus for a number of years violated, inter alia, the principles of good faith and proportionality.
COMPLAINTS
25. The applicants complained under Article 8 of the Convention about the overall handling of their case by the domestic authorities and the treatment they received pending the examination of the naturalisation applications of the first and second applicants, as well as about the authorities’ decisions. They challenged, inter alia, the authorities’ alleged failure to deal with their residence permit applications since 2009, resulting in periods of illegal stay and a life of continued uncertainty, and to take into account all the rights and interests of the children. They also complained about the alleged absence of domestic legislation providing legal protection against the arbitrary interference by public authorities with their rights as long term immigrants.
26. They further complained under Article 13 of the Convention of a lack of an effective remedy in relation to their complaints under Article 8 of the Convention.
THE LAWJoinder of the applications
27. Given their similar factual and legal background, the Court decides that the applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.Alleged violation of articles 8 and 13 of the Convention
28. The applicants relied on Articles 8 and 13 of the Convention which read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”The parties’ arguments
(a) The Government
29. The Government considered that the measures adopted following the second applicant’s naturalisation in 2019 were sufficient to remedy the applicants’ complaints and that any effects of a possible violation of the Convention have been redressed. In this regard, they stressed that, as confirmed by a letter of the Civil Registry and Migration Department of the Ministry of Interior of 6 September 2019 which was submitted to the Court, in the absence of a law regulating the rights of family members of Cypriot citizens, the provisions of Law 7(I)/2007 concerning family members of EU citizens applied mutatis mutandis. Hence, all applicants as family members of a Cypriot national were now protected from deportation by virtue of section 30 of the said Law and could only be deported exceptionally (see paragraph 23 above). Currently, none of the applicants faced any real or imminent risk of deportation from Cyprus. If there were any deportation orders issued against the applicants in the future, they would be able to challenge them through an appropriate recourse.
30. The Government observed that, consequently, the first applicant as the husband of a Cypriot citizen could move, reside and work freely within the Republic of Cyprus, and that even in the event of the second applicant’s death, her departure from Cyprus, divorce or annulment of their marriage, as per sections 2, 21, 25, 26 and 27 of Law 7(I)/2007 applied mutatis mutandis (see paragraph 22 above). Referring to the case of Guilan Zhu v. The Republic of Cyprus (see paragraph 24 above), the Government submitted that the question as to whether Law 7(I)/2007 covered also Cypriot citizens was to be decided on the domestic level, with due regard to the right to respect for family life and the right of EU citizens not to be discriminated against due to their nationality. They further reiterated that the competent Ministry decided to apply mutatis mutandis the provisions of the said law to the family members of Cypriot citizens.
31. As to the third applicant, the Government stressed that if she wished to return to Cyprus she could apply for a visitor’s permit by virtue of section 4 of Law 7(I)/2007, and subsequently for naturalisation. Alternatively, she could apply for permanent residence permits by virtue of Regulation 5 and/or 6(2) of the Aliens and Immigration Regulations (Regulation 242/72) (see paragraph 20 above). Moreover, if the third applicant was issued with a permit under Regulation 6(2) and subsequently found employment in Cyprus in line with the criteria of Regulation 5, Category E, she could change her immigration permit from Regulation 6(2) to Regulation 5, Category E.
32. Lastly, as regards the fourth applicant, the Government maintained that the examination of her application for naturalisation was pending and she was expected to be registered as a Cypriot national as a consequence of the second applicant’s Cypriot citizenship.
33. In light of the above, the Government considered that the application should be struck out of the Court’s list of cases in accordance with Article 37 § 1(b) of the Convention.
(b) The applicants
34. The applicants disagreed with the Government’s submissions. They maintained that the second applicant’s Cypriot citizenship did not deprive her of her victim status. In this connection the applicants claimed that the national authorities did not acknowledge the breaches complained of, either expressly or in substance, nor had they afforded redress for the said breaches. The applicants argued that this was evident from the Government’s observations where they denied a violation of their rights under Articles 8 and 13 of the Convention.
35. As regards the regularisation arrangements suggested by the Government, they noted that the third and fourth applicants were second generation migrants who had spent most (third applicant) if not all (fourth applicant) their lives in Cyprus, becoming thus aliens with “special situation” within the meaning of the Court’s jurisprudence. Hence, neither the suggestion that the third applicant could enter Cyprus upon a visitor’s visa, nor the extension of the fourth applicant’s temporary student residence compared to a status of regularisation. On the contrary, these suggestions indicated that the Government ignored the totality of the applicants’ ties with Cyprus and their level of integration.
36. Lastly, the applicants reiterated the difficulties they had faced in their attempts to regularise their status especially since 2009; the persisting uncertainty of their residence status for many years leaving them in a precarious situation, irrespective of their de facto integration and development of strong ties in Cyprus and despite the consecutive judicial decisions in their favour. In sum, they considered that the interference with their rights under Articles 8 and 13 of the Convention had not been addressed.The Court’s assessment
37. In the present case, the Court acknowledges that at least since 30 June 2009, namely, the end of the residence permit that was granted to the applicants (see paragraph 8 above) and until 2015 when the authorities decided to reply positively to the applicants’ repeated requests for new residence permits (see paragraph 14 above), the applicants experienced a lengthy period of insecurity and uncertainty in Cyprus. Nonetheless, in the light of the new developments brought to its attention, it considers that it does not have to address all the issues raised by the parties and that, for the reasons set out below, there is no objective justification for continuing to examine the applicants’ complaints. It is thus appropriate to apply Article 37 § 1 of the Convention, which provides as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
38. In order to ascertain whether Article 37 § 1 (b) applies to the present case, the Court must answer two questions: firstly, whether the circumstances complained of directly by the applicants still obtain; and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed. That entails first of all, establishing whether there is a risk of the applicants being deported; and after that the Court must consider whether the measures indicated by the Government constitute sufficient redress for the applicants’ complaints (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Sisojeva and Others v. Latvia (striking-out) [GC], no. 60654/00, § 97, ECHR 2007‑I; and Kaftailova v. Latvia (striking-out) [GC], no. 59643/00, § 48, 7 December 2007).
39. The Court observes primarily that the second applicant is now a Cypriot citizen. As a result, she is able to reside in Cyprus on a permanent and legal basis, work without restrictions and live a normal life in Cyprus.
40. As regards the first applicant, the Court notes that as of 4 September 2019 he holds a residence permit as a spouse of a Cypriot citizen, valid until 8 May 2021, with the possibility of renewal. According to the Government’s submissions, relying on an e-mail of 10 September 2019 by the Civil Registry and Migration Department of the Ministry of Interior addressed to the Government agent, the first applicant is, as a spouse of a Cypriot citizen, able to work in Cyprus without any of the previous employment restrictions.
41. The fourth applicant, as a family member of a Cypriot citizen, appears to be in an analogous situation to her father (the first applicant). The Court does not ignore the fact that her student permit expired on 19 October 2019 and that, according to the last information available, her application for registration as a Cypriot is still pending. Nonetheless, the Court notes that the fourth applicant has been able to pursue her education in Cyprus throughout her residence there. Her past experiences also show that there is nothing preventing her from continuing to do so through the renewal of her student permit if she wishes to pursue a course of higher education and obtain a degree in Cyprus, pending the examination of her application for registration as a Cypriot citizen.
42. The Court observes that it follows from the Government’s observations that the Cypriot authorities should apply Law 7(I)/2007 mutatis mutandis to family members of Cypriot citizens. This appears to be so despite the first instance judgment in Guilan Zhu v. The Republic of Cyprus (cited above), which predates the letter of the relevant department of the Ministry of Interior referred to by the Government in their observations (see paragraph 29 above). Therefore, the first and fourth applicants, as family members of the second applicant, are protected from arbitrary deportation and can reside and work in Cyprus even in the event of the second applicant’s death or departure from the country.
43. In any event, it appears from the case of Guilan Zhu v. The Republic of Cyprus as well as from the first applicant’s past experience (see paragraph 10 above) that in the event of a deportation order against the non-Cypriot applicants, they will be able to challenge it by way of an administrative recourse with a high likelihood of success. The Court would additionally observe that should the applicants encounter any difficulties in future, they can turn to the Court anew, as for example in the case of Kryezi v. Switzerland ((dec.), no. 73694/14, § 24, 8 October 2019).
44. The Court observes that, as matters stand, the first, second and fourth applicants who currently reside in Cyprus, do not face any real and imminent risk of deportation (see mutatis mutandis, Kaftailova, cited above, § 49). Although they might feel that uncertainty cannot be removed unless they are granted permanent residence permits, it is to be reiterated that Article 8 cannot be construed as guaranteeing, as such, the right to a particular type of residence permit – permanent, temporary or other – the choice being in principle a matter for the domestic authorities alone (see, among many authorities, Dremlyuga v. Latvia (dec.), no. 66729/01, 29 April 2003, and Sisojeva and Others, cited above, § 91). The Court notes that the measures indicated by the Cypriot Government allow those applicants to remain in Cyprus and to exercise freely their right to respect for their private and family life, as guaranteed by Article 8 of the Convention and interpreted in the Court’s case law. The same applies to the third applicant assuming she wishes to return to Cyprus and follows the procedures proposed by the Government to regularise her stay there.
45. Concerning the third applicant, the Court also notes that if she wishes to return to Cyprus, there are avenues available to her in order to regularise her status once there (see paragraph 31 above) which do not entail her entry and residence merely on a visitor’s permit. Since her departure from Cyprus the third applicant does not appear to have made any attempt to regularise her status in accordance with the existing domestic regulations.
46. While regretting the fact that the Cypriot authorities did not find an earlier solution to the matters complained about by the applicants, the Court does not consider that this fact on its own makes the measures finally suggested inadequate, especially in view of the fact that any deportation orders issued were not executed and the applicants were able to reside in Cyprus throughout the period concerned. This significantly minimises the extent of the redress which needs to be afforded in the present case (see mutatis mutandis, Kaftailova, cited above, § 53).
47. Having regard to the above, and in light of the relevant circumstances of the case, the Court considers that the regularisation arrangements proposed by the Government are adequate and sufficient to remedy the applicants’ complaints.
48. Consequently, the Court finds that both conditions for the application of Article 37 § 1 (b) of the Convention are met. The Court therefore concludes that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention. Furthermore, it is satisfied that respect for human rights as defined in the Convention does not require it to continue the examination of the application under Article 37 § 1 in fine.
49. Accordingly, the cases should be struck out of the list.
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to strike the applications out of its list of cases.
Done in English and notified in writing on 1 October 2020.
Olga ChernishovaErik Wennerström
Deputy RegistrarPresident
Full & Egal Universal Law Academy