European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 40125/06
by Anduena HYSENA BAJRAMAJ
against Denmark

The European Court of Human Rights (Fifth Section), sitting on 3 March 2009 as a Chamber composed of:

Rait Maruste, President,
Peer Lorenzen,
Karel Jungwiert,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,

and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 9 October 2006,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Anduena Hysena Bajramaj, is a Serbian national of Albanian ethnicity, who was born in 1983 in the province of Kosovo. She is represented before the Court by Mr Hans Boserup, a lawyer practising in Sønderborg.

The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen, of the Ministry of Foreign Affairs, and their Co-agent, Ms Nina Holst-Christensen, of the Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 10 July 2001, when the applicant was eighteen years old, she arrived in Denmark from Kosovo.

The following month, on 25 August 2001, in Denmark, she married V.B., a Serbian national from the province of Kosovo, who had been granted a Danish residence permit of temporary duration since 1996 and of unlimited duration since 15 December 2000.

The applicant's request for asylum

On 12 April 2002 the Aliens Authorities (Udlændingestyrelsen) found the applicant's request for asylum manifestly unfounded.

The applicant's request for a residence permit under section 9 (e), subsection 2 of the Aliens Act

Thereafter, the applicant requested a residence permit pursuant to section 9 (e), subsection 2 of the Aliens Act (Udlændingeloven). She enclosed a certificate of 2 June 2002 by a psychiatrist who found, among other things, that the applicant showed symptoms of Post Traumatic Stress Disorder (PTSD). On 29 August 2002 the Aliens Authorities refused the applicant's request on the grounds that she did not fulfil the requirements of the said provision of the Aliens Act, notably of having formerly held a residence permit under a so-called “Kosovo Emergency Act” or having applied for asylum before 30 April 1999.

On 15 May 2003, on appeal, the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for Flygtninge, Indvandrere og Integration - hereafter the Ministry), confirmed the decision, emphasising that it was a condition for residence under the said provision that the applicant should hold or have held a residence permit under the so-called Kosovo Emergency Act or have applied for a asylum before 30 April 1999.

The applicant's request for a residence permit on humanitarian grounds under section 9 (b), subsection 1 of the Aliens Act

On 15 May 2003, the Ministry also refused the applicant's request for a residence permit on humanitarian grounds pursuant to section 9 (b), subsection 1 of the Aliens Act. It noted in that respect that the applicant had not substantiated that she was suffering from a very serious physical or mental illness, and that neither PTSD nor depression were considered to be illnesses which alone could justify the granting of a residence permit on humanitarian grounds. The applicant was ordered to leave the country immediately.

Subsequently, referring to a psychiatric report of 2 October 2004, which confirmed that the applicant still had symptoms of PTSD, although these were decreasing, the applicant requested that the Ministry reconsider her application for a residence permit on humanitarian grounds. Her request was refused on 5 November 2004. On 30 May 2006 the Ministry refused the applicant's request to reconsider the case.

The applicant's request for a residence permit due to particular reasons under section 9 (c), subsection 1 of the Aliens Act

The applicant's first application for family reunification of December 2001, under the provision then in force, was refused by the Aliens Authorities on 14 April 2003 and this refusal upheld by the Ministry on 2 January 2004, since the applicant's spouse living in Denmark had held a permanent residence permit for less than three years.

In August 2002 and November 2003, two children were born to the applicant and her husband. A third child was born in August 2005. Due to their father's residence permit, the children were granted a temporary residence permit which will expire when they are eighteen years old.

On 15 April 2003, referring to her right to respect for family life, the applicant requested that a residence permit be granted to her pursuant to section 9 (c), subsection 1 of the Aliens Act.

Her request was refused by the Aliens Authorities on 4 February 2004, since such an application had to be lodged before entering Denmark, with a Danish Embassy in the applicant's country of origin or in a country in which she had stayed legally during the previous three months. After entry, such an application could not be submitted or examined in Denmark, unless there were particular reasons pursuant to section 9 (c), subsection 4 of the said Act.

By letter of 29 November 2004, in response to a notification by the Deputy National Commissioner of Police of the forced return of the applicant, the United Nations Interim Administration Mission in Kosovo (UNMIK) stated, among other things:

“Based on the information provided in the case of [the applicant] UNMIK's position is that the forcible return to Kosovo of [the applicant] without her two minor children and her husband would not be in accordance with international standards on family unity. Therefore, UNMIK is unable to accept the forcible return of [the applicant] at this time ...”

In the meantime the applicant had appealed against the Aliens Authorities' decision of 4 February 2004 to the Ministry, which upheld the decision on 31 October 2005. It repeated that there were no such particular reasons to allow the applicant to submit and have her request examined while staying in Denmark. Thus, the applicant had to return to Kosovo and apply for family reunification from there.

On 9 November, 14 December 2005, 9 January and 30 May 2006 the Ministry refused to re-open the case. To the applicant's argument that the Danish Embassy closest to Kosovo was situated in Belgrade, the Ministry replied that it had missions in Serbia and Montenegro. Moreover, an application could be submitted by post, but the immigration authorities could require personal appearance at the issue of a residence permit for identification purposes.

By letter of 15 August 2006 the Deputy National Commissioner of Police notified UNMIK, and the applicant's lawyer, about the intended return of the applicant.

On 19 August 2006 UNMIK stated that due to the circumstances of the case, notably the facts that the applicant's spouse had a residence permit in Denmark and that the couple had two children, UNMIK would consider the matter.

On 2 October 2006 UNMIK informed the Danish National Police that it had no objections to the applicant being returned to Kosovo.

On 16 November 2006 the applicant was returned by force to Kosovo.

Proceedings before the High Court and the Supreme Court

In the meantime, the applicant had brought the decisions by the Ministry of 15 May 2003 (section 9 (b) of the Aliens Act) and 31 October 2005 (section 9 (c) of the Aliens Act) before the High Court of Western Denmark (Vestre Landsret - hereafter the High Court), which by judgment of 5 September 2006 found partly for the applicant. It upheld the decision of 15 May 2003 but quashed the decisions of 31 October and 9 November 2005 by the Ministry, finding that there were exceptional circumstances for examining the applicant's request for family reunification although it had been lodged while she stayed in Denmark. Accordingly, the case should be sent back to the Ministry for a renewed examination.

On 19 September 2006, the latter appealed against the judgment to the Supreme Court (Højesteret).

On 13 October 2006 the applicant's counsel requested that the Supreme Court suspend the time-limit for the applicant's deportation pending the appeal proceedings.

On 13 December 2006 the Supreme Court applied an interim measure securing the applicant's stay in Denmark while her case was pending before the Supreme Court.

Consequently, the applicant was returned to Denmark where she arrived on 21 December 2006. Her husband, V.B., and their three children, who had voluntarily followed the applicant to Kosovo, were also returned to Denmark.

On 22 March 2007, the applicant contacted the police seeking assistance to travel to Kosovo, as she no longer wanted to cohabit with V.B.

Against that background, she was summoned to interviews with both the Danish Refugee Counsel, (Dansk Flygtningehjælp) an NGO, and the Ministry. To the latter she allegedly stated that she wanted to waive her application for family reunification and other applications. On 25 March 2007 she told the Danish Refugee Counsel that she had resumed cohabitation with her husband, that did not want to leave Denmark after all, and that she wanted to withdraw her waiver.

On 10 September 2007, the applicant voluntarily left Denmark and went to Kosovo, leaving her husband and children in Denmark. The Government have submitted that the applicant and a representative from a Crisis Centre had contacted the police three days before with a request for assistance to return, and that the latter informed her of the possible consequences of her departure. The applicant's representative has submitted that the applicant, due to exhaustion and fear of the outcome of the proceedings before the Supreme Court, had suffered depression, and consequently decided to leave Denmark.

On 19 December 2007 the Supreme Court passed judgment upholding the High Court's judgment as to the Ministry's decision of 15 May 2003 to refuse to grant the applicant a residence permit on humanitarian grounds. It amended the High Court's judgment, however, as to the finding that there were exceptional circumstances for examining the applicant's request for family reunification although it had been lodged while she was staying in Denmark. Thus, the Supreme Court approved the Ministry's decision of 31 October 2005.

Since her departure on 10 September 2007, the applicant has not submitted any further applications for a residence permit in Denmark. The applicant's representative has maintained that the reason therefor was that she knew that such an application would be refused.

COMPLAINTS

The applicant complained that the authorities' refusal to grant her a residence permit in Denmark and her deportation contravened Articles 3, 6 and 8 of the Convention.

THE LAW

From the outset, the Court notes that only the applicant's complaint under Article 8 of the Convention was communicated to the Government for observations on the admissibility and merits.

Moreover, in so far as the complaint under the said provision related to the period from 16 November to 21 December 2006, the Court observes that after the applicant was returned by force on the former date, her husband and three small children joined her in Kosovo. In addition, the applicant stayed in Kosovo only for a limited time, namely one month and five days, before she and her family were returned to Denmark.

Furthermore, on 10 September 2007, despite the Supreme Court's decision of 13 December 2006 that the applicant could stay in the country pending the proceedings before it, she decided voluntarily to leave Denmark, where her husband and three children remained. The Court has not received any documentation as regards the applicant's alleged depression at the relevant time.

Finally, on 19 December 2007 the Supreme Court passed judgment upholding the decision to refuse to grant the applicant a residence permit on humanitarian grounds and upholding the decision that the applicant had to request family reunification from Kosovo, and not from Denmark. Nevertheless, since her voluntary return to Kosovo on 10 September 2007, the applicant has not requested family reunification from Kosovo or the Danish Embassy in Belgrade or elsewhere, and the case contains no elements indicating that she wishes to pursue this matter.

In these circumstances, within the meaning of Article 37 § 1 (c) of the Convention, the Court considers that that it is no longer justified to continue the examination of the application and that it is therefore appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Stephen Phillips Rait Maruste
Deputy Registrar President