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You are here: BAILII >> Databases >> European Court of Human Rights >> GUL v. SWITZERLAND - 23218/94 [1996] ECHR 5 (19 February 1996)
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JISCBAILII_CASE_ HUMAN_RIGHTS_ECHR
In the case of Gül v. Switzerland (1),
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection
of Human Rights and Fundamental Freedoms ("the Convention") and
the relevant provisions of Rules of Court A (2), as a Chamber
composed of the following judges:
Mr R. Bernhardt, President,
Mr F. Matscher,
Mr C. Russo,
Mr N. Valticos,
Mr S.K. Martens,
Mrs E. Palm,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 27 October 1995 and
22 January 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 53/1995/559/645. The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to the
Court since its creation and on the list of the corresponding
applications to the Commission.
2. Rules A apply to all cases referred to the Court before the
entry into force of Protocol No. 9 (P9) (1 October 1994) and
thereafter only to cases concerning States not bound by that
Protocol (P9). They correspond to the Rules that came into force
on 1 January 1983, as amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 29 May 1995, and
by the Government of the Swiss Confederation ("the Government")
on 26 June 1995, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 23218/94)
against Switzerland lodged with the Commission under Article 25
(art. 25) by a Turkish national, Mr Riza Gül, on
31 December 1993.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Switzerland
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred to Articles 45,
47 and 48 (art. 45, art. 47, art. 48). The object of the request
and of the application was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of
its obligations under Article 8 (art. 8) of the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he
wished to take part in the proceedings and designated the lawyers
who would represent him (Rule 30). The Turkish Government,
having been informed by the Registrar of their right to intervene
in the proceedings (Article 48 (b) of the Convention and Rule 33
para. 3 (b)) (art. 48-b), did not indicate any intention of so
doing.
3. The Chamber to be constituted included ex officio
Mr L. Wildhaber, the elected judge of Swiss nationality
(Article 43 of the Convention) (art. 43), and Mr R. Bernhardt,
the Vice-President of the Court (Rule 21 para. 4). On
8 June 1995, in the presence of the Registrar, the President of
the Court drew by lot the names of the other seven members,
namely Mr F. Matscher, Mr C. Russo, Mr N. Valticos,
Mr S.K. Martens, Mrs E. Palm, Mr M.A. Lopes Rocha and
Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21
para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
Government, the applicant's lawyers and the Delegate of the
Commission on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the order made in consequence, the
Registrar received the memorials of the applicant and the
Government on 3 and 11 August 1995 respectively. On
4 September 1995 the Secretary to the Commission informed the
Registrar that the Delegate would submit his observations at the
hearing.
On 25 August 1995 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
President's instructions.
5. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 25 October 1995. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr O. Jacot-Guillarmod, Assistant Director,
Head of the International Affairs Division,
Federal Office of Justice, Agent,
Mr F. Schürmann, Deputy Head of the European
Law and International Affairs Section,
Federal Office of Justice,
Mrs S. Marconato, Legal Officer,
Federal Aliens Office, Counsel;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Mr R. Plender QC,
Mr J. Walker, Fürsprech, Counsel.
The Court heard addresses by Mr Danelius, Mr Plender and
Mr Jacot-Guillarmod, and the latter's reply to the question asked
by one member of the Court.
On 25 and 27 October 1995 the Registrar received the
Government's and the applicant's written replies to that
question.
AS TO THE FACTS
I. Circumstances of the case
A. Situation of the applicant and part of his family in
Switzerland
6. Mr Gül is a Turkish national, who was born in 1947 and now
lives with his wife at Pratteln in the canton of Basle Rural,
Switzerland.
7. Until 1983 he lived with his wife and their two sons, Tuncay
(born on 12 October 1971) and Ersin (born on 20 January 1983),
in the town of Gümüshane in Turkey. On 25 April 1983 he
travelled to Switzerland, where he applied for political asylum
as a Kurd and former member of the Turkish Social Democratic
Party ("the CHP"). He worked in a restaurant there until 1990,
when he fell ill. Since then he has been in receipt of a
partial-invalidity pension.
8. In 1987 the applicant's wife, who had remained in Turkey
with their two sons, seriously burned herself during a fit
brought on by her epilepsy, from which she had suffered since
1982. In December 1987, having found that it was impossible for
her to obtain proper treatment in the area where she was then
living, she joined her husband in Switzerland, where she was
taken into hospital as an emergency case. Two of the fingers of
her left hand were amputated.
9. On 19 September 1988 in Switzerland Mrs Gül gave birth to
her third child, Nursal, a daughter. As she still suffered from
epilepsy, she could not take care of the baby, who was placed in
a home in Switzerland, where she has remained ever since. In a
written declaration dated 31 March 1989, a Pratteln specialist
in internal medicine stated that a return to Turkey would be
impossible for Mrs Gül and might even prove fatal to her, given
her serious medical condition.
10. On 9 February 1989 the Minister for Refugees rejected
Mr Gül's application for political asylum, on the ground that he
had not been able to establish that he personally had been a
victim of persecution, as the general situation of the Kurdish
population in Turkey was not in itself sufficient to justify
granting political asylum. He went on to say that, according to
reliable sources, no measures were being taken by the State
authorities against former members of the CHP, and ordered the
applicant to leave Switzerland by 30 April 1989, failing which
he would be deported.
On 10 March 1989 the applicant appealed against the above
decision to the Federal Justice and Police Department. He
asserted that the collective repression of Kurds in Turkey, of
which he himself had been a victim, in itself justified granting
political asylum. In addition, at the time when he had fled to
Switzerland all political parties had been proscribed and their
members - especially the members of left-wing parties like the
CHP - were being prosecuted. He could not therefore be required
to return to Turkey, and this would be in breach of Article 3
(art. 3) of the Convention.
11. In a letter of 26 June 1989, the Basle Rural Cantonal Aliens
Police (Fremdenpolizei) informed the applicant's lawyer that they
supported Mr Gül's request for a residence permit
(Aufenthaltsbewilligung) on humanitarian grounds in respect of
himself, his wife and his daughter Nursal.
In view of the length of time Mr Gül had been living in
Switzerland and his wife's precarious state of health, the police
considered that the conditions for the issue of such a permit
laid down in Article 13 (f) of the Federal Council's Order
Limiting the Number of Aliens ("the OLNA" - see paragraph 21
below) had been satisfied. The final decision to grant a
residence permit was given by the Federal Aliens Office on
15 February 1990.
12. As the Federal Justice and Police Department had informed
Mr Gül that his application for political asylum had only very
limited prospects of success on appeal, he withdrew it. The
authorities took formal note of this on 8 November 1989.
B. Steps taken by the applicant with a view to bringing
his two sons to Switzerland
1. Before the Basle Rural Cantonal Aliens Police
13. On 14 May 1990 Mr Gül asked the Basle Rural Cantonal Aliens
Police for permission to bring to Switzerland his two sons,
Tuncay and Ersin, who had remained in Turkey.
14. In a decision of 19 September 1990 the Aliens Police
rejected
Mr Gül's request, on the ground that the conditions for family
reunion had not been satisfied (Article 39 of the OLNA - see
paragraph 21 below). Firstly, the Gül family's flat did not
conform to the standards laid down and, secondly, the applicant
did not have sufficient means to provide for his family. In any
event, Tuncay was already eighteen and was therefore ineligible
for a residence permit under the rules governing family reunion.
2. Before the Basle Rural cantonal government
15. On 1 October 1990 the applicant appealed against this
decision to the Basle Rural cantonal government (Regierungsrat).
He argued that the residence permit issued to him and his wife
under Article 13 (f) of the OLNA should have been extended to
include his two sons, as his personal circumstances made it an
extremely serious case. Since it was impossible to return to
Turkey because of his wife's precarious state of health and the
length of time he had lived abroad, the family could be brought
back together only in Switzerland. Both Article 8 (art. 8) of
the European Convention on Human Rights, guaranteeing the right
to respect for family life, and the United Nations Convention on
the Rights of the Child gave the two boys the right to join their
parents in Switzerland. If the cantonal government were
nevertheless to rely on the provisions of Articles 38 et seq. of
the OLNA (see paragraph 21 below) on family reunion, the younger
son, Ersin, could and should be permitted to exercise that right.
There was enough room for him in the family's flat and Mr Gül's
financial resources were sufficient to provide for his family.
16. On 30 July 1991 the Basle Rural cantonal government
dismissed the applicant's appeal. It pointed out that under
section 4 of the Federal Residence and Settlement of Aliens Act
("the RSAA" - see paragraph 20 below) the question whether to
grant a residence permit (Aufenthaltsbewilligung) or settlement
permit (Niederlassungsbewilligung) was determined by the
competent cantonal authorities with unfettered discretion (nach
freiem Ermessen), having regard to the relevant statutory
provisions and international agreements. In that connection, the
authorities had to take account of the country's moral and
economic interests, and of the degree of immigrant penetration
(Überfremdung).
The cantonal government then considered whether Mr Gül's two
sons could rely on a right to obtain permission to reside in
Switzerland (Anwesenheitsbewilligung) on the basis of the
statutory provisions, as the agreement on settlement concluded
by Turkey and Switzerland on 13 December 1990 did not confer such
a right.
Under section 17 (2) of the RSAA (see paragraph 20 below)
a minor did not have such a right unless his parent was in
possession of a settlement permit. As Mr and Mrs Gül only had
a residence permit, they could not rely on that provision in
order to assert a right to family reunion. As for the guarantees
set forth in Article 8 (art. 8) of the Convention, only Swiss
nationals or persons in possession of a settlement permit could
rely on these; Mr and Mrs Gül fell into neither of those
categories.
Articles 38 et seq. of the OLNA (see paragraph 21 below) did
not confer a right but merely set out the minimum conditions to
be satisfied before family reunion could be authorised. The
cantonal authorities had the final say on the matter, and in
reaching their decision they had unfettered discretion. It being
established that the provisions concerned could only apply, if
at all, to the minor son, Ersin, the cantonal government listed
the minimum conditions which Article 39 para. 1 of the OLNA (see
paragraph 21 below) required to be satisfied by a foreigner
living in Switzerland before family reunion could be authorised,
namely:
(a) his residence and, where relevant, his gainful
employment should appear to be sufficiently stable;
(b) he should live with his family and occupy
accommodation suitable for that purpose;
(c) he should have sufficient means to support his family;
and
(d) firm arrangements should have been made for the care
of any children who still needed their parents' presence.
The cantonal government did not determine points (a) and
(b), but carefully considered points (c) and (d), on which it
gave the following decision:
"(c) The calculations made by the Aliens Police and the
cantonal government's legal service, which investigated the
case, show that Mr Gül has not satisfied the condition laid
down in Article 39 para. 1 (c) of the OLNA. He does not
have sufficient means to support his family during their
residence in Switzerland. According to the reference
calculation, Mr Gül should have a monthly net income of at
least 2,710 Swiss francs (CHF) if he is not to fall below
the minimum standard of living. That figure is derived
from the base rates used by the cantonal social security
office for assessing the likelihood of reliance on social
security, which are on the whole identical with the base
rates adopted by the Swiss Conference on Public Assistance
for the calculation of financial support. These base rates
are used to establish the monthly living expenses of the
foreigner concerned and the members of his family seeking
to join him, which have to be covered by his income. This
must be sufficient to provide not only the basic
necessities of life but also a minimum standard of living.
In this way the legitimate interest of the public
authorities in preventing the family from becoming a burden
on the social security services is also taken into account.
Mr Gül's net monthly income is CHF 2,060, which falls
CHF 650 short of the amount required for the minimum
standard of living as calculated by the social security
services. The cost of keeping the youngest child, Nursal,
in a children's home has not been taken into account, as it
is not known who pays for this. The calculation of income
is based on pay-slips from 1989, the latest available. On
23 October 1990 the Liestal Cantonal Hospital sent the
Basle Rural Aliens Police a medical certificate stating
that Mr Gül was 100% unfit for work and would remain so for
a period that it was not possible to determine. On enquiry
being made, it was confirmed in a medical certificate dated
19 April 1991 that Mr Gül had suffered from 100% incapacity
since April 1990 and would remain unfit for work for the
foreseeable future. The Pratteln municipal social security
services stated in a letter of 11 June 1991 that Mr Gül
would have to have several operations and that for the time
being he was waiting to be awarded an invalidity pension.
For the first three months of this year alone the social
security services have paid the Gül family CHF 8,731.75,
and the family will remain dependent on social security
payments. In June 1991 Mr Gül stated during a personal
interview with the subordinate authority (Vorinstanz) that
his family was at that time entirely dependent on social
security payments. He therefore has no other source of
income. At present the social security services are paying
the Gül family the amount needed by a three-person family,
but no more. The social security services cannot be
expected to provide for children arriving from abroad when
it is known in advance that they will have to support them.
Nor can Mr Gül support his other children from his own
resources. For that reason alone the application for
family reunion must be refused.
(d) Article 39 para. 1 (d) also requires firm arrangements
to be made for the care of children. But Mrs Gül, for
reasons connected with her illness, is not mentally or
physically capable of keeping her daughter Nursal with her
and looking after her. That is why Nursal has been brought
up in the "Auf Berg" children's home in Seltisberg, where
she is to remain. It follows that if Mr and Mrs Gül's
eight-year-old son Ersin joined the family, it is not at
all certain that firm arrangements could be made for his
care. He too would presumably have to be brought up in a
children's home, which is not the aim of family reunion.
A medical certificate dated 18 April 1991 states that
Mrs Gül is suffering from a serious illness which makes it
necessary for her to have constant medical supervision and
treatment. She might even need to go into hospital again.
That prospect makes it impossible to consider that firm
arrangements have been made for the child's care as the
Order requires."
The cantonal government went on to say that residence
permits issued on humanitarian grounds under Article 13 (f) of
the OLNA could not in addition confer on the recipients a right
to family reunion. In order to ensure equal treatment for all
aliens not having the right to reside in Switzerland, such
reunion could take place only under Articles 38 et seq. of the
OLNA.
Lastly, the cantonal government considered the situation of
the younger boy from the standpoint of Article 36 of the OLNA
(see paragraph 21 below), announcing its decision in the
following terms:
"Ersin Gül is only eight. It must be determined whether
his entry into Switzerland would be in accordance with
Article 36 of the OLNA, which requires an `important
reason' that is lacking in this case. There is no special
reason for treating Ersin Gül differently from other
children wishing to rejoin their families in respect of
whom the conditions laid down in Articles 38 et seq. of the
OLNA have not been satisfied. Another reason for refusing
to admit him to Switzerland is the fact that Ersin and
Tuncay Gül would be separated. Ersin has lived with Tuncay
since birth. On the other hand, he has been separated from
his father and mother for eight years and three and a half
years respectively. Having regard to the child's welfare,
which plays an important role in family reunion cases, the
question arises, at the very least, whether it is
reasonable to separate him from his brother and the
environment he is used to in order to bring him to live
with his mother, who is seriously ill and unable to keep
him with her or look after him, and his father, who went
away to Switzerland three month's after Ersin's birth,
which means that he hardly knows him. In view of all the
circumstances, and having regard to the child's welfare,
the cantonal government considers that Ersin Gül should not
be authorised to join his parents in Switzerland. In any
case, there is no important reason within the meaning of
Article 36 of the OLNA which requires him to be admitted to
Switzerland."
The cantonal government concluded that Mr Gül had not
satisfied the conditions laid down for family reunion and that
his children could not rely on Article 13 (f) or Article 36 of
the OLNA either in order to come to Switzerland to join him.
3. In the Federal Court
17. On 2 September 1991 the applicant lodged an
administrative-law appeal with the Swiss Federal Court. He
repeated his previous arguments (see paragraph 15 above) and
added that, because of the "special circumstances", Article 8
(art. 8) of the Convention gave his sons the right to obtain
permission to reside in Switzerland. The earlier issue of a
residence permit on humanitarian grounds to himself, his wife and
his daughter had been based on the finding that a return to
Turkey was impossible, as it would put the health of his wife and
daughter seriously at risk. Mr Gül argued that the same
considerations which had prevailed in the decision to grant that
residence permit should prevent any withdrawal thereof, which
would be tantamount to subjecting Mrs Gül, whose state of health
was still causing concern, to inhuman and degrading treatment
contrary to Article 3 (art. 3) of the Convention. The residence
permit issued to Mr and Mrs Gül on humanitarian grounds was
therefore the equivalent of a settlement permit, and it followed
that they had the right to family reunion, which could only take
place in Switzerland.
18. In a judgment of 2 July 1993 the Federal Court declared the
applicant's appeal inadmissible. It pointed out that, pursuant
to section 100 (b) (3) of the Federal Administration of Justice
Act, an administrative-law appeal in an immigration-control case
was inadmissible if it concerned the issue or refusal of permits
to which federal legislation conferred no entitlement. Like the
cantonal government, the Federal Court found that neither
section 17 (2) of the RSAA nor Article 8 (art. 8) of the
Convention conferred such a right on an alien resident outside
Switzerland whose parent living in Switzerland had only a
residence permit, as Mr Gül did. In particular, Article 8
(art. 8) of the Convention could be relied on only by a person
who had the right of abode in Switzerland either by virtue of his
Swiss nationality or by virtue of a settlement permit. The court
gave this ruling in the following terms:
"Article 8 (art. 8) of the European Convention on Human
Rights guarantees the right to respect for family life. In
certain circumstances the right to be issued with a
residence permit can be deduced from this (see ATF
[Judgments of the Swiss Federal Court] 118 Ib 152 at 4, 157
at c; 116 Ib 355 at 1b; 109 Ib 185 at 2), so that Article 8
(art. 8) may be breached where an alien whose family lives
in Switzerland is refused leave to enter the country.
According to the Federal Court's established case-law,
however, a breach can occur only where the family members
living in Switzerland themselves possess a well-established
right of abode (Anwesenheitsrecht). For that purpose, it
is in principle necessary to have Swiss nationality or
possess a settlement permit (see ATF 116 Ib 355 at 1b;
115 Ib 4 at 1d). A mere residence permit is at any rate
not sufficient unless it is based on a firmly established
right (see ATF 111 Ib 163/4 at 1a), as the Federal Court
has held in many unpublished judgments (most recently in
the judgment of 6 April 1993 in the case of K., at 1b) ...
That is, moreover, consistent with the new provisions on
the legal status of aliens having family members in
Switzerland (sections 7 and 17 (2) of the RSAA, as amended
on 23 March 1990, which came into force on 1 January 1992).
Under the Act the right to family reunion presupposes a
firmly established right of abode, as pointed out above
(at 1b). Given that the legislature's intention in
adopting the amendment in question was precisely to take
account of Article 8 (art. 8) of the European Convention on
Human Rights (see Bbl [Federal Gazette] 1987 III, pp. 293
et seq., particularly pp. 321 and 322), there is no reason,
when that provision (art. 8) of the Convention is invoked
with regard to recognition of legal rights in the matter of
residence permits, to go beyond what the Act itself
expressly provides (see the Federal Court's unpublished
judgment of 6 April 1993 in the case of K., at 1b)."
The Federal Court also emphasised the differences between
settlement permits and residence permits, stating:
"Unlike settlement permits, which are issued for an
indefinite period (section 6 (1) of the Federal Residence
and Settlement of Aliens Act - hereinafter the RSAA),
residence permits are always subject to a time-limit
(section 5 (1) of the RSAA). Whatever the reason for
granting the first residence permit, an alien must
therefore allow for the possibility that his permit will
not be renewed. There could be many reasons for this,
including, for example, police, economic or demographic
considerations. Although the alien's personal
circumstances have to be taken into account in the inquiry
into the proportionality of the decision not to renew, that
does not mean that the alien is on that account entitled to
have his residence permit renewed.
The above statement of the law also applies to residence
permits issued on humanitarian grounds. The only effect of
a finding that a case is an extremely serious one within
the meaning of Article 13 (f) of the Federal Council's
Order Limiting the Number of Aliens of 6 October 1986
(hereinafter the OLNA - SR 823.21) is to exclude the alien
concerned from the quotas laid down in that Order; it does
not imply the existence of a right to a residence permit.
The Aliens Police prefer to remain free to decide when such
a permit should be issued (see ATF 119 Ib 35 at 1a). In
addition, the possibility cannot be ruled out that the
particular circumstances which justified the issue of a
residence permit on humanitarian grounds will subsequently
cease to exist, or lose their significance to such an
extent that not only will there no longer be any reason to
exclude the person concerned from the quotas, but even
renewal of the residence permit will no longer be
justified. Moreover, it is apparent from the rule
established in Article 12 para. 2 of the OLNA that the
conditions required for a finding that the case is an
extremely serious one may subsequently cease to exist (see
the unpublished judgment of 3 July 1992 in the case of P.,
at 6). The question whether the case is of this type is
therefore entirely separate from the question whether the
person concerned has the right to obtain permission to
reside in Switzerland by virtue of Article 8 (art. 8) of
the European Convention on Human Rights (see ATF 115 Ib 8).
Furthermore, in the instant case the possibility cannot be
entirely ruled out that in the future the medical or other
reasons which led the authorities to grant the residence
permit will lose their significance, or that new grounds
justifying a refusal to renew the permit will become
apparent. The appellant can therefore not deduce from the
fact that he is authorised to reside in Switzerland any
right to the issue of a residence permit for his sons."
The Federal Court went on to say that the question how the
OLNA should be applied to the issue of permits was not one it had
to examine in connection with the administrative-law appeal, as
the cantonal government had already looked into the question
whether the Güls' younger son could be issued with a residence
permit under Article 36 of the OLNA.
C. Situation of the applicant's son Ersin in Turkey
19. Ersin has lived in Turkey since his birth, at first in
Gümüshane until 1993 (with his mother until 1987), and then in
Istanbul.
According to the Government, he is at present living, as is
his grandfather, with the family of his elder brother Tuncay, and
has been visited several times by his father.
The applicant maintained that Ersin frequently moved from
one home to another and spent two or three days staying with
various Kurdish families who used to live in the village where
he was born, including the family of his elder brother. Owing
to his grandfather's limited financial resources and the distance
between the homes of some of these families and the school it was
not possible for the boy to attend school on a regular basis.
As is evidenced by an article which appeared in the Turkish
newspaper Sabah on 25 July 1995, Mr and Mrs Gül visited their son
in Turkey in July and August 1995.
II. Relevant domestic law
A. The Federal Residence and Settlement of Aliens Act
(RSAA) of 26 March 1931
20. The Federal Residence and Settlement of Aliens Act provides:
Section 4
"The authority shall have discretion to decide, having
regard to the relevant statutory provisions and treaties
with foreign States, whether to grant residence or
settlement permits."
Section 16
"1. When deciding whether to grant a permit the
authorities must take account of the country's moral and
economic interests, and of the degree of immigrant
penetration.
..."
Section 17
"1. As a general rule, the authority shall first issue
only a residence permit, even if it is foreseen that the
alien will establish his permanent residence in
Switzerland. In each case the Federal Aliens Office shall
fix the date from which permission to settle may be
granted.
2. Where that date has already been fixed, or where the
alien is in possession of a settlement permit, his spouse
shall be entitled to a residence permit for as long as the
couple continue to live together. On completion of five
years' uninterrupted lawful residence the spouse shall also
become entitled to a settlement permit. Unmarried children
under 18 shall have the right to be included in the
settlement permit for as long as they continue to live with
their parents. These rights shall be extinguished if the
beneficiary has engaged in conduct contrary to public
policy."
Before 1 January 1992 the second paragraph of this section
read:
"Where that date has already been fixed, or where the alien
is in possession of a settlement permit, his wife and his
children under 18 shall have the right to be included in
the permit if they form part of his household."
B. The Order Limiting the Number of Aliens (OLNA) of
6 October 1986
21. The relevant provisions of the Order Limiting the Number of
Aliens are the following:
Article 13 - Exceptions
"The following categories of person shall not be included
in the quotas:
...
(f) aliens issued with residence permits in extremely
serious personal cases or on general policy grounds.
..."
Before 18 October 1989 the expression "extremely serious
personal cases" read: "cases of extreme adversity".
Article 36 - Other aliens without gainful employment
"Residence permits may be issued to other aliens without
gainful employment where important reasons so require."
Chapter 4: Family reunion
Article 38 - Principle
"1. The Cantonal Aliens Police may authorise an alien to
bring to Switzerland his spouse and his dependent unmarried
children under 18.
..."
Article 39 - Conditions
"1. An alien may be authorised to bring his family without
being required to complete any qualifying period ...
(a) if his residence and, where relevant, his gainful
employment appear to be sufficiently stable;
(b) if he lives with his family and occupies accommodation
suitable for that purpose;
(c) if he has sufficient means to support his family; and
(d) if firm arrangements have been made for the care of
any children who still need their parents' presence.
2. Accommodation is suitable if it meets the standards
applicable to Swiss nationals in the area where the alien
wishes to live."
Before 20 October 1993 the words "without being required to
complete any qualifying period" were not part of the text.
C. Case-law of the Swiss Federal Court
22. According to the established case-law of the Federal Court,
a person is entitled under Article 8 (art. 8) of the Convention
to join a member of his family in Switzerland if the latter is
a Swiss national or is in possession of a settlement permit
(Judgments of the Federal Court (ATF) vol. 116, part Ib, p. 355;
vol. 115, part Ib, p. 4; vol. 111, part Ib, pp. 163 et seq.).
D. The convention on social security concluded by Switzerland
and Turkey on 1 May 1969
23. Replying to the question asked at the hearing by one member
of the Court, the Government stated that by virtue of the
convention on social security concluded by Switzerland and the
Republic of Turkey on 1 May 1969, which came into force on
1 January 1972 with effect from 1 January 1969, invalidity
insurance benefits payable in either country are also payable in
the other. In the instant case, if Mr Gül returned to Turkey,
he would receive CHF 915, made up of his ordinary pension
(CHF 436) and half of the supplementary pension paid in respect
of his wife (CHF 131), his son Ersin (CHF 174) and his daughter
Nursal (CHF 174).
The applicant asserted that only his invalidity pension, not
the social security benefits, could be paid to him in Turkey.
Moreover, his invalidity pension was currently under review; if
his invalidity were to be assessed as less than 50%, his pension
could no longer be transferred to Turkey.
PROCEEDINGS BEFORE THE COMMISSION
24. Mr Gül applied to the Commission on 31 December 1993. He
alleged that the Swiss authorities' refusal to allow his two
sons, Tuncay and Ersin, to join him in Switzerland constituted
a violation of Article 8 (art. 8) of the Convention.
25. On 10 October 1994 the Commission declared the application
(no. 23218/94) admissible as regards the complaint under
Article 8 (art. 8) of the Convention concerning Ersin. It
declared the remainder of the application inadmissible.
In its report of 4 April 1995 (Article 31) (art. 31), it
expressed the opinion, by fourteen votes to ten, that there had
been a violation of Article 8 (art. 8). The full text of the
Commission's opinion and of the two dissenting opinions contained
in the report is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the
printed version of the judgment (in Reports of Judgments and
Decisions - 1996-I), but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
26. In their memorial the Government asked the Court to hold in
the instant case:
"primarily, that Article 8 (art. 8) of the Convention is
not applicable;
in the alternative, that there was no `interference' by the
Swiss public authorities with the applicant's exercise of
his right to enjoy a family life with his son Ersin;
in the further alternative, if such interference is held to
have occurred, that it was justified under paragraph 2 of
Article 8 (art. 8-2) of the Convention."
27. The applicant asked the Court to find that the conditions
laid down in Article 8 para. 2 (art. 8-2) of the Convention had
not been satisfied and to uphold the Commission's opinion on this
point.
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
28. Mr Gül submitted that the Swiss authorities' refusal to
permit his son Ersin to join him in Switzerland had infringed his
right to respect for his family life. He relied on Article 8
(art. 8) of the Convention, which provides:
"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."
29. It is first necessary to determine whether there is a
"family life" within the meaning of Article 8 (art. 8).
30. The Government's primary submission was that Article 8
(art. 8) was not applicable, since in the instant case the
element of intention inherent in the concept of family life was
missing. Mr Gül had left Turkey when his younger son Ersin was
three months old, and had never attempted to develop a family
life in his country of origin. In addition, the focus of that
son's family life was in Turkey since, even after his mother's
departure, the child had been taken in as a member of his elder
brother's family. Furthermore, the fact that Mr and Mrs Gül's
daughter Nursal had been placed in a home in Switzerland showed
that they were in any event incapable of assuming their parental
responsibilities with regard to the boy.
31. Like the applicant, the Commission considered that the bond
between Mr Gül and his son Ersin amounted to "family life".
32. The Court reiterates that it follows from the concept of
family on which Article 8 (art. 8) is based that a child born of
a marital union is ipso jure part of that relationship; hence,
from the moment of the child's birth and by the very fact of it,
there exists between him and his parents a bond amounting to
"family life" (see the Berrehab v. the Netherlands judgment of
21 June 1988, series A no. 138, p. 14, para. 21, and the Hokkanen
v. Finland judgment of 23 September 1994, Series A no. 299-A,
p. 19, para. 54) which subsequent events cannot break save in
exceptional circumstances.
33. Admittedly, Mr Gül left Turkey in 1983, when his son Ersin
was only three months old (see paragraph 7 above); Mrs Gül left
Ersin in 1987 because of her accident (see paragraph 8 above).
However, after obtaining a residence permit on humanitarian
grounds in Switzerland in 1990, the applicant asked the Swiss
authorities for permission to bring the boy, who was then six
years old, to Switzerland (see paragraphs 11 and 13 above).
Subsequently, he repeatedly asked the Swiss courts to allow his
son to join him, before bringing his case before the Convention
institutions. Despite the distance, in geographical terms,
between them, the applicant has made a number of visits to
Turkey, the last of these being in July and August 1995 (see
paragraph 19 above). It cannot therefore be claimed that the
bond of "family life" between them has been broken.
34. Secondly, it is necessary to ascertain whether there was
interference by the Swiss authorities with the applicant's right
under Article 8 (art. 8).
35. Mr Gül submitted that the result in practice of the
authorities' persistent refusal to allow Ersin to join him in
Switzerland had been to separate the family and make it
impossible, owing to lack of sufficient financial resources, for
the parents to maintain regular contacts with their son, whereas,
according to the Court's case-law, contacts between parents and
child were of capital importance. In addition, the length of
time Mr Gül had lived in Switzerland, his invalidity and his
wife's ill-health made family reunion in Turkey an unrealistic
prospect, so that the family could only be brought together again
in Switzerland.
36. The Government submitted that the applicant could not rely
on a right to family reunion in Switzerland, as he had only a
humanitarian permit, which was not a true settlement permit but
merely a document authorising residence that could be withdrawn
from him. In addition, Switzerland had fully discharged the
positive obligations arising under Article 8 para. 1 (art. 8-1),
as the invalidity pension the applicant was in receipt of enabled
him to make occasional visits to Turkey. In any event,
Switzerland was in no way responsible for the situation the Gül
family was in. Lastly, the Swiss authorities were not under any
obligation to ensure that the applicant led an optimal family
life in Switzerland.
37. The Commission considered that where a parent wanted his
minor child to live with him, preventing this amounted to
interference with his right to respect for family life, and that
the family would need to be reunited in Switzerland rather than
in Turkey in view of Mr and Mrs Gül's particular circumstances.
38. The Court reiterates that the essential object of Article 8
(art. 8) is to protect the individual against arbitrary action
by the public authorities. There may in addition be positive
obligations inherent in effective "respect" for family life.
However, the boundaries between the State's positive and negative
obligations under this provision (art. 8) do not lend themselves
to precise definition. The applicable principles are,
nonetheless, similar. In both contexts regard must be had to the
fair balance that has to be struck between the competing
interests of the individual and of the community as a whole; and
in both contexts the State enjoys a certain margin of
appreciation (see, most recently, the Keegan v. Ireland judgment
of 26 May 1994, Series A no. 290, p. 19, para. 49, and the Kroon
and Others v. the Netherlands judgment of 27 October 1994,
Series A no. 297-C, p. 56, para. 31).
The present case concerns not only family life but also
immigration, and the extent of a State's obligation to admit to
its territory relatives of settled immigrants will vary according
to the particular circumstances of the persons involved and the
general interest. As a matter of well-established international
law and subject to its treaty obligations, a State has the right
to control the entry of non-nationals into its territory (see,
among other authorities, the Abdulaziz, Cabales and Balkandali
v. the United Kingdom judgment of 28 May 1985, Series A no. 94,
pp. 33-34, para. 67).
Moreover, where immigration is concerned, Article 8 (art. 8)
cannot be considered to impose on a State a general obligation
to respect the choice by married couples of the country of their
matrimonial residence and to authorise family reunion in its
territory. In order to establish the scope of the State's
obligations, the facts of the case must be considered (see,
mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment
previously cited, p. 34, para. 68, and the Cruz Varas and Others
v. Sweden judgment of 20 March 1991, Series A no. 201, p. 32,
para. 88).
39. In this case, therefore, the Court's task is to determine
to what extent it is true that Ersin's move to Switzerland would
be the only way for Mr Gül to develop family life with his son.
40. The applicant left Turkey in 1983 and made his way to
Switzerland, where he applied for political asylum; this
application was rejected by the Minister for Refugees in 1989
(see paragraph 10 above). His wife joined him in 1987 so that
she could receive medical treatment in Switzerland after a
serious accident. Their daughter Nursal was placed from birth
in a home in Switzerland and has remained there ever since (see
paragraph 9 above). In 1990 Mr and Mrs Gül were granted a
residence permit on humanitarian grounds and then sought
permission to bring their son Ersin to Switzerland. Ersin has
always lived in Turkey (see paragraph 19 above).
41. By leaving Turkey in 1983, Mr Gül caused the separation from
his son, and he was unable to prove to the Swiss authorities -
who refused to grant him political refugee status - that he
personally had been a victim of persecution in his home country.
In any event, whatever the applicant's initial reasons for
applying for political asylum, the visits he has made to his son
in recent years tend to show that they are no longer valid. His
counsel, moreover, expressly confirmed this at the hearing. In
addition, according to the Government, by virtue of a social
security convention concluded on 1 May 1969 between Switzerland
and Turkey, the applicant could continue to receive his ordinary
invalidity pension and half of the supplementary benefit he
receives at present in respect of his wife, his son Ersin and his
daughter Nursal if he returned to his home country (see
paragraph 23 above).
Mrs Gül's return to Turkey is more problematic, since it was
essentially her state of health that led the Swiss authorities
to issue a residence permit on humanitarian grounds. However,
although her state of health seemed particularly alarming in
1987, when her accident occurred, it has not been proved that she
could not later have received appropriate medical treatment in
specialist hospitals in Turkey. She was, moreover, able to visit
Turkey with her husband in July and August 1995 (see paragraph 19
above).
Furthermore, although Mr and Mrs Gül are lawfully resident
in Switzerland, they do not have a permanent right of abode, as
they do not have a settlement permit but merely a residence
permit on humanitarian grounds, which could be withdrawn, and
which under Swiss law does not give them a right to family
reunion (see paragraph 18 above).
42. In view of the length of time Mr and Mrs Gül have lived in
Switzerland, it would admittedly not be easy for them to return
to Turkey, but there are, strictly speaking, no obstacles
preventing them from developing family life in Turkey. That
possibility is all the more real because Ersin has always lived
there and has therefore grown up in the cultural and linguistic
environment of his country. On that point the situation is not
the same as in the Berrehab case, where the daughter of a
Moroccan applicant had been born in the Netherlands and spent all
her life there (see the Berrehab judgment previously cited, p. 8,
para. 7).
43. Having regard to all these considerations, and while
acknowledging that the Gül family's situation is very difficult
from the human point of view, the Court finds that Switzerland
has not failed to fulfil the obligations arising under Article 8
para. 1 (art. 8-1), and there has therefore been no interference
in the applicant's family life within the meaning of that
Article (art. 8-1).
FOR THESE REASONS, THE COURT
Holds by seven votes to two that there has been no breach
of Article 8 (art. 8) of the Convention.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
19 February 1996.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the
dissenting opinion of Mr Martens, approved by Mr Russo, is
annexed to this judgment.
Initialled: R. B.
Initialled: H. P.
DISSENTING OPINION OF JUDGE MARTENS,
APPROVED BY JUDGE RUSSO
A. Introduction
1. To my regret I have not been able to persuade the majority.
I remain unable to share their opinion. I will refrain from
arguing why, but just set out my own judgment. I trust that from
that judgment it will be sufficiently clear why I could not join
the majority.
2. What is at stake in this case is whether the refusal of the
Swiss authorities to grant the applicant's son Ersin
authorisation to reside in Switzerland with his parents violated
Switzerland's obligation under Article 8 (art. 8) to respect the
applicant's family life. Consequently, the circumstances
obtaining at the date of the (first) refusal of the requested
authorisation - that is 19 September 1990 - are decisive.
I will come back to these circumstances hereinafter (see
paragraph 14), but I note already here that on 19 September 1990
the applicant and his wife were living lawfully in Switzerland
having been granted a residence permit on humanitarian grounds
on 15 February 1990. Their son Ersin, who was born on
20 January 1983, was then 7 years old and lived in Turkey under
circumstances which still remain controversial (see paragraph 12
below).
3. One more preliminary remark with regard to the facts. The
Court has repeatedly stressed that it is not bound by the
Commission's findings of fact and remains free to make its own
appreciation in the light of all the material before it (see,
inter alia, the Cruz Varas and Others v. Sweden judgment of
20 March 1991, Series A no. 201, p. 29, para. 74). In doing so
we should, however, bear in mind our limitations and be
particularly careful not to take into account facts other than
those which are properly established. The Government have
contended - without basing their contention on specific facts -
that in 1983 the applicant left Turkey "of his own free will,
preferring to seek employment in Switzerland" thereby suggesting
that the applicant's assertion that he came to Switzerland as a
refugee was a falsehood. However, although the applicant sought
asylum on 26 April 1983, his application was only dismissed on
9 February 1989 together with that of his wife (which dated from
8 February 1988). The applicant appealed. This appeal was never
decided because the applicant withdrew his application, since -
as his counsel put it without being contradicted - pursuing the
application for asylum was incompatible with accepting the
residence permit on humanitarian grounds that had been offered
to him and his wife. Under these circumstances it is not for us
to simply base ourselves on the refusal at first instance or to
speculate, thirteen years hence, on the truth and relevance of
the assertions underlying the applicant's asylum request. True,
it is common ground that in the summer of 1995 the applicant
visited Ersin in Turkey and, although attracting notice by a
press interview, has apparently not experienced any
disagreeableness from the Turkish authorities. However, that
does not in itself warrant the conclusion that thirteen years
earlier, in 1983, the applicant had no relevant and sufficient
grounds for fleeing from persecution in Turkey and requesting
asylum in Switzerland.
B. Applicability of Article 8 (art. 8)
4. In its Abdulaziz, Cabales and Balkandali v. the United
Kingdom judgment of 28 May 1985, Series A no. 94, the Court
adopted the established doctrine of the Commission that although,
certainly, the right of aliens to enter or to remain in a country
is not as such guaranteed by the Convention, immigration controls
have to be exercised consistently with Convention obligations and
that, accordingly, the exclusion of a person from a State where
members of his family are living may raise an issue under
Article 8 (art. 8) (see paragraphs 59 and 60 of the judgment).
Since this judgment there has been a considerable evolution in
the Court's general doctrine on Article 8 (art. 8), but not on
this point. On the contrary, its subsequent case-law has solidly
confirmed the principle that, although Contracting States have,
as a matter of well-established international law, the right to
control the entry, residence and expulsion of aliens, that right
is subject to their obligations under the Convention, notably
those under Article 8 (art. 8) (see the Berrehab v. the
Netherlands judgment of 21 June 1988, Series A no. 138,
pp. 15-16, paras. 28-29; the Moustaquim v. Belgium judgment of
18 February 1991, Series A
no. 193, p. 19, para. 43; the Cruz Varas and Others judgment
cited above, p. 28, para. 70; the Vilvarajah and Others v. the
United Kingdom judgment of 30 October 1991, Series A no. 215,
p. 34, para. 102; the Beldjoudi v. France judgment of
26 March 1992, Series A no. 234-A, p. 27, para. 74; and the Nasri
v. France judgment of 13 July 1995, Series A no. 320-B, p. 25,
para. 41).
Accordingly, if on 19 September 1990 there existed "family
life" between the applicant and his son Ersin, the applicability
of
Article 8 (art. 8) to the facts of the present case cannot be
called into question. To the evolution in the Court's general
doctrine on Article 8 (art. 8) I will return in paragraph 7
below.
5. On 19 September 1990 there certainly was a family life
relationship between the applicant and Ersin. Since Ersin was
born from the legitimate marriage between the applicant and his
wife, it follows from the aforementioned Berrehab judgment
(p. 14, para. 21) that there is ipso facto such a relationship
(see also the Hokkanen v. Finland judgment of 23 September 1994,
Series A no. 299-A, p. 19, para. 54). True, as the Court
recognised in the Berrehab judgment, subsequent events may break
such a family life relationship, but only exceptional
circumstances can warrant the conclusion that the tie between a
parent and his or her child is severed. The mere fact that, at
the relevant date, the applicant had not seen his then
seven-year-old son for almost seven years is not sufficient to
produce this negative effect. In this context it is immaterial
whether the applicant left his wife and Ersin under fear from
political prosecution or purely for economic reasons.
C. Is Switzerland in breach of an obligation under Article 8
(art. 8)?
6. "According to the Court's well established case-law, 'the
mutual enjoyment by parent and child of each other's company
constitutes a fundamental element of family life'", as the Court
pointed out in paragraph 86 of the McMichael v. the United
Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55.
Consequently, decisions of State authorities hindering such
enjoyment in principle amount to an infringement of the State's
obligation to respect the family life of those concerned. It
follows that the refusal of the Swiss authorities to grant the
applicant's son Ersin authorisation to reside in Switzerland in
principle entails their responsibility under Article 8 (art. 8).
Before it is possible to assess whether the refusal was
justified, it is - alas - necessary to give some consideration
to the question whether or not Switzerland's obligation under
Article 8 (art. 8) is a positive or a negative one.
D. Positive or negative obligation?
7. The Court's case-law distinguishes between positive and
negative obligations. Negative obligations require member States
to refrain from action, positive to take action. The Court has
repeatedly stressed that the boundaries between the two types "do
not lend themselves to precise definition" (see, for instance,
the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290,
p. 19, para. 49). The present case well illustrates the truth
of this proposition since the question whether the Swiss decision
violated a positive or a negative obligation, if either, seems
hardly more than one of semantics: the refusal of the Swiss
authorities to let Ersin and his parents be reunited may be
considered as an action from which they should have refrained,
whereas it could arguably also be viewed as failing to take an
action which they were required to take, namely making a reunion
possible by granting the authorisation. If one takes the view
that, if there is a violation at all, it must be of a positive
obligation - a view that finds support in the aforementioned
Abdulaziz, Cabales and Balkandali judgment (see paragraph 4
above) - then one has to put up with the rather awkward
systematic inconsistency that exclusion of a person from a state
where his family lives does not fall into the same category of
breaches as expulsion of a person from a state where his family
lives: the former decision may be in breach of a positive
obligation under Article 8 (art. 8), whereas the latter may be
in breach of a negative obligation.
8. These and other difficulties in distinguishing between cases
where positive and cases where negative obligations are at stake
would be immaterial if both kinds of obligation were treated
alike. There was a time, however, when the Court's case-law did
treat them differently.
The Abdulaziz, Cabales and Balkandali judgment is a striking
instance: see paragraph 67 of that judgment. Under the pretext
of the vagueness of the notion "respect" in Article 8 (art. 8)
the Court held that its requirements will vary from case to case,
thus creating for itself the possibility of taking into account,
when establishing whether or not there is a positive obligation,
whether or not there is a consensus between member States and,
moreover, a wide margin of appreciation for the State concerned.
This approach has been rightly criticised both outside and inside
the Court. One of the main objections was that under this
doctrine, in the context of positive obligations, the margin of
appreciation might already come into play at the stage of
determining the existence of the obligation, whilst in the
context of negative obligations it only plays a role, if at all,
at the stage of determining whether a breach of the obligation
is justified.
The Court's doctrine on this point has, however, evolved
considerably since the Abdulaziz, Cabales and Balkandali
judgment. The aforementioned difference in treatment between
positive and negative obligations has gradually dwindled away.
The Court now holds that the applicable principles are similar,
adding that in both contexts regard must be had to the fair
balance that has to be struck between the competing interests of
the individual and the community (see, inter alia: the
above-mentioned Keegan judgment, loc. cit. (paragraph 7 above);
the above-mentioned Hokkanen judgment, p. 20, para. 55; and the
Stjerna v. Finland judgment of 25 November 1994, Series A
no. 299-B, p. 61, para. 39).
9. For present purposes it may, therefore, be assumed that it
makes no material difference whether a positive or a negative
obligation is at stake. The present doctrine notably implies
that the distinction between the two types of obligation has no
bearing on either the burden of proof or the standards for
assessing whether a fair balance has been struck.
It follows that the refusal of the Swiss authorities to
grant the applicant's son Ersin authorisation to reside in
Switzerland amounts to a violation of Article 8 (art. 8), unless
it is deemed justified under paragraph 2 of that
Article (art. 8-2) or under similar principles to those enshrined
therein.
I agree with the Commission that the requirements of "in
accordance with the law" and "legitimate aim" are fulfilled. The
applicant's argument that the refusal was not "in accordance with
the law" did not convince me. On the other hand I cannot help
saying that I consider the Government's attempt to embellish the
harsh, political objectives of their decision by pleading that
in the first place it was designed to serve Ersin's interests
rather hypocritical. The stress laid on financial considerations
makes it clear that the legitimate aim pursued was, if not only
then mainly, "the interests of the economic well-being of the
country".
It follows that in any event the decisive question is
whether the refusal of authorisation to reside in Switzerland was
proportionate.
E. Was the refusal proportionate?
10. Was it "necessary in a democratic society" to refuse the
applicant's seven-year-old son Ersin authorisation to come and
live in Switzerland with his parents? In other words, did that
decision of the Swiss authorities strike a fair balance between
the competing interests of the applicant, his wife and their son
on the one hand and those of the community as a whole on the
other?
11. In explaining the interests of the community the Government
have stressed that Switzerland has a very high percentage of
foreigners living within its borders. Hence, as counsel for the
Government put it at our hearing, "in Switzerland immigration is
a particularly sensitive subject". Against this background the
Government are, understandably, afraid of creating a precedent
and therefore emphasise - rightly - that what is at stake is
their right to control the entry of non-nationals into their
territory and that, accordingly, we should leave them a wide
margin of appreciation. In this context they stress that they
have only granted the applicant and his wife a temporary
residence permit on humanitarian grounds, that as a consequence
of that generosity they have already to bear the costs of
subsistence of the applicant, his wife and their daughter Nursal
and that it is therefore asking too much to expect them to do the
same for Ersin.
12. So much for the one scale of the balance. What lies in the
other? First and foremost, of course, a fundamental element of
an elementary human right, the right to care for your own
children. It was only natural that the applicant and his wife,
as soon as their residence situation was regularised, wanted
their seven-year-old son to live with them. There is a dispute
as to Ersin's living conditions, but I need not go deeply into
that. It suffices to note that the Government have not
convincingly established that those conditions were satisfactory,
let alone that, at the decisive moment, it was more in the
interest of Ersin to remain in Turkey than to be reunited with
his father and mother.
13. The Government do not argue that these are not weighty
interests. But they seek to diminish their relevance by
contending that the applicant - on whom, they add, is the burden
- has not shown that there are obstacles to re-establishing the
family - father, mother and Ersin - in Turkey. It is clear that
the Government are thus relying on paragraph 68 of the Abdulaziz,
Cabales and Balkandali judgment. However, they choose to ignore
the fact that the Court, in the first sentence of that paragraph,
explicitly distinguishes "the present proceedings" - i.e. the
cases of the three wives that were before the Court - from the
case of "immigrants who already had a family which they left
behind in another country until they had achieved settled status
in the United Kingdom" (= the country of settlement).
That is an important proviso, for it strongly suggests that
in a case of "immigrants who already had a family which they left
behind" - such as the present applicant - different norms should
be applied.
14. Which norms? The Court does not answer that question, but
it is natural to infer that it intended to make it clear that in
respect of such cases it might possibly hold that, in the context
of the issue of family reunion, the State of settlement should
respect the choice of the immigrants who have achieved settled
status there and, accordingly, must accept members of their
family which they had left behind for settlement.
In other words, contrary to the Government's suggestion, the
Abdulaziz, Cabales and Balkandali judgment is no authority for
their allegation that Switzerland may refuse Ersin entry -
although he is a member of the family which the applicant and his
wife left behind - on the mere ground that if the applicant and
his wife want family reunion they should go back to Turkey, there
being a violation of Switzerland's obligations under Article 8
(art. 8) only if the applicant proves that there are obstacles
to doing so or other special reasons why that could not be
expected of him.
On the contrary, the Abdulaziz, Cabales and Balkandali
judgment supports the proposition that in cases where a father
and mother have achieved settled status in a country and want to
be reunited with their child which for the time being they have
left behind in their country of origin, it is per se
unreasonable, if not inhumane to give them the choice between
giving up the position which they have acquired in the country
of settlement or to renounce the mutual enjoyment by parent and
child of each other's company which constitutes a fundamental
element of family life.
15. It remains, of course, to be considered whether the latter
principle applies in the present case, where the applicant has
not "achieved settled status" in Switzerland, in so far as he and
his wife have not been granted a "settlement permit", but have
to base their right of residence on a permit which has, in
principle, a temporary character and, consequently, a lower legal
status than a settlement permit.
It cannot be denied that, from a point of view of State
interest - that is from a point of view of immigration and
residence - there is a good case for answering this question in
the negative. However, the European Court of Human Rights has
to ensure, in particular, that State interests do not crush those
of an individual, especially in situations where political
pressure - such as the growing dislike of immigrants in most
member States - may inspire State authorities to harsh decisions.
As we stressed in paragraph 29 of our aforementioned Berrehab
judgment (see paragraph 4 above), the Court must examine cases
like this not only from the point of view of immigration and
residence, but also with regard to the mutual interests of the
applicant, his wife and Ersin.
Whether he came as a refugee (as we must presume (see
paragraph 3 above)) or as a job seeker (as the Government
allege), at the material time the applicant had been living in
Switzerland for seven years and his wife for four years. During
these years he had been legally employed, apparently by the same
employer, until an unspecified date in 1990 when he fell ill (see
paragraph 7 of the Court's judgment). The Swiss authorities have
taken this time element into consideration, since their decision
to grant a residence permit was partly based on the time the
applicant had been living in Switzerland (see paragraph 11 of the
Court's judgment). Rightly so, for, generally speaking, it may
be assumed that after a period of between three and five years
immigrants become rooted in the country of settlement. By then
they have formed new social ties there and have definitively
begun to adapt themselves to their new homeland. In assessing
the humaneness of the choice with which the Swiss authorities
confronted the applicant and his wife this element, the fact that
they have become integrated in their new homeland - an element
which, incidentally, is closely connected with their private life
- is of far more importance than the formal status of their
permit.
There are some further, specific elements to be taken into
account.
The first is that for the applicant and his wife the choice
in question was not only between renouncing their son or
renouncing the position which they had acquired in Switzerland,
but also between renouncing their son Ersin or their little
daughter Nursal who was being educated in a home in Switzerland
and whose interests almost certainly would have required that she
should be left behind.
The second is that the applicant's wife is dependent on
medical care which she can certainly get in Switzerland, whilst
it is in debate to what extent, if at all, she will be able to
get it in Turkey.
The third is that the mere fact that the Turkish authorities
did not immediately arrest the applicant when he entered the
country as a visitor does not imply that he would not get into
trouble if he tried to settle there again on a permanent basis.
The fourth is that the applicant and his wife deserve
compassion: whilst his wife had been suffering from epilepsy
since 1982 and had a terrible accident in 1987, the applicant
himself became disabled in 1990.
Under these circumstances it could not reasonably be
required of the applicant and his wife that in order to be
reunited with Ersin they should leave Switzerland and return to
Turkey.
It follows that a proper balance was not achieved between
the interests involved, that the refusal of the Swiss authorities
is disproportionate and, as such, not necessary in a democratic
society. I thus conclude that there was a violation of Article 8
(art. 8).