EHRM, 08-11-2016, nr. 56971/10

The applicants submitted that the domestic authorities had failed to strike a fair balance between the conflicting interests, as they should have concluded that the applicants' interest in family reunification outweighed the public interest to control immigration. Relying on the Court's judgment in the case of Tuquabo-Tekle and Others, cited above, they submitted that the decisive date for determining the age of a child in the context of family reunification proceedings was the date on which the request was filed. They submitted that the second applicant was fifteen and a half years old when the first applicant, in March 2006, lodged the request for family reunification at issue. They added that the first applicant had the right of custody for the second applicant, that the second applicant had previously lived with the first applicant in Switzerland for one and half years, from July 2003 to January 2005, and that the second applicant's return to Egypt had, from the start, been meant to be temporary. They argued that they had, thus, already previously had the intention to live together in Switzerland.

The applicants further submitted that the domestic authorities did not correctly assess the second applicant's situation in Egypt. They argued that the remarriage of the second applicant's mother and her subsequent move to Kuwait with her husband, and corresponding changes in the care arrangement for the second applicant, had not been sufficiently taken into account. It was not true that the second applicant's strongest social and family ties were to Egypt. Rather, his mother lived in Kuwait and his father, the first applicant, lived in Switzerland. In any event, the Swiss authorities did not seem to be concerned about disrupting the second applicant's ties to Egypt when they granted the previous request for family reunification which allowed him to stay in Switzerland from 2003 to 2005.

Moreover, the applicants submitted that it would be unreasonable to ask the first applicant, who also enjoyed family life with his daughter, who was a Swiss national and lived with her mother in Switzerland, to relocate to Egypt to live together with the second applicant there. Denying the second applicant to live with the first applicant in Switzerland would thus result in a permanent separation of the two applicants.

The Government accepted that a family life within the meaning of Article 8 § 1 of the Convention existed between the applicants. It submitted that the case-law of the Court was not clear as regards the decisive date for determining the age of a child in the context of family reunification, as the Court had relied on the date the request was first introduced on the domestic level in the case of Tuquabo-Tekle and Others, cited above, whereas it had relied on the date of the last domestic decision in the case of Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003. It argued that the present case more closely resembled that of Chandra than that of Tuquabo-Tekle and Others, emphasising that the request for family reunification was lodged years after the first applicant arrived in Switzerland. It submitted that the first applicant left the second applicant behind when he moved to Switzerland in 1997 and that he did not provide a sufficient explanation why he did not lodge a request for family reunification as soon as he got a residence permit in Switzerland. The Government emphasised that the second applicant had then been granted family reunification with the first applicant in Switzerland, but that the first applicant chose to send him back to Egypt after one and a half years due to a conflict between the second applicant and the first applicant's spouse. It submitted that there were no indications that this second separation was meant to be temporary and argued that the separation of the two applicants was nothing but the result of the first applicant's deliberate choices.

The Government maintained that the care arrangements for the second applicant in Egypt were adequate, emphasising that this constituted a significant difference to the case of Tuquabo-Tekle and Others, cited above. It added that the second applicant had experienced integration difficulties when he lived in Switzerland for the first time and that there were no indications about him facing any problems in Egypt. It argued that, considering also that he was 15 and half years at the time the request for family reunification was lodged, it was not evident that taken the second applicant out of his social, cultural and linguistic environment in Egypt to reunite him with the first applicant in Switzerland would in fact be in the best interests of the child, not least because the material living conditions of the first applicant, who lived in a one-room apartment and was unemployed at the time the request was lodged, were not ideal. Adding that the present case did not concern the reunification of a child with both of his or her parents, unlike in the case of Şen v. the Netherlands, no. 31465/96, § 40, 21 December 2001, the Government concluded that the domestic courts struck a fair balance between the conflicting interests and did not overstep their margin of appreciation.

The Court recalls that it recently summarised the pertinent principles concerning family reunification of children of foreign nationality with parents settled in a Contracting State in the case of I.A.A. and Others v. the United Kingdom (dec.), no. 25960/13, §§ 38–41, 8 March 2016. It reiterates that the essential object of Article 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 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 Ahmut v. the Netherlands, 28 November 1996, § 63, Reports of Judgments and Decisions 1996-VI).

In order to establish the scope of the State's obligations, the Court must examine the facts of the case in the light of the applicable principles, which it has previously set out as follows (see Gül v. Switzerland, 19 February 1996, § 38, Reports 1996-I; Ahmut, cited above, § 67; and Berisha v. Switzerland, no. 948/12, § 48, 30 July 2013):

In this context it must be borne in mind that cases like the present one do not only concern immigration, but also family life, and that it involves aliens who already had a family life which they left behind in another country until they achieved settled status in the host country (contrast Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 68, Series A no. 94). In such cases, it must determine whether, in refusing to issue residence permits for the applicants, the Government can be said to have struck a fair balance between their interest in developing a family life in the respondent State on the one hand and the State's own interest in controlling immigration on the other. In conducting this assessment, the Court has first asked whether the parents irrevocably decided to leave their children in the country of origin, and thereby abandoned any idea of a future family reunion (see, for example, Şen, cited above, § 40). Secondly, it has asked whether allowing the children to enter the Contracting State would be the most adequate means for them to develop their family life with the parents settled in that State. In answering this question, it has had regard to the existence of any ‘insurmountable obstacles’ or ‘major impediments’ to the parents' return to the country of origin (see Tuquabo-Tekle and Others, cited above, § 48).

The Court has further held that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010; M.P.E.V. and Others v. Switzerland, no. 3910/13, § 52, 8 July 2014; see also Tarakhel v. Switzerland [GC], no. 29217/12, § 99, ECHR 2014 (extracts)). For that purpose, in cases regarding family reunification the Court pays particular attention to the circumstances of the minor children concerned, especially their age, their situation in their country of origin and the extent to which they are dependent on their parents (see Tuquabo-Tekle and Others, cited above, § 44). While the best interests of the child cannot be a ‘trump card’ which requires the admission of all children who would be better off living in a Contracting State (I.A.A. and Others v. the United Kingdom, cited above, § 46; see also Berisha, cited above, §§ 60–61), the domestic courts must place the best interests of the child at the heart of their considerations and attach crucial weight to it (see, mutatis mutandis, Mandet v. France, no. 30955/12, §§ 56–57, 14 January 2016).

The Court reiterates that the task to assess the best interests of the child in each individual case is primarily one for the domestic authorities, which often have the benefit of direct contact with the persons concerned (Neulinger and Shuruk, cited above, § 138). To that end they enjoy a certain margin of appreciation, which remains subject, however, to European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (ibid., with further references; X v. Latvia [GC], no. 27853/09, § 101, ECHR 2013). In line with the principle of subsidiarity, it is not the Court's task to take the place of the competent authorities in determining the best interests of the child, but to ascertain whether the domestic courts secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child's best interests, which must be sufficiently reflected in the reasoning of the domestic courts (Neulinger and Shuruk, cited above, §§ 133, 141; B. v. Belgium, no. 4320/11, § 60, 10 July 2012; X. v. Latvia, cited above, §§ 106–107). Domestic courts must put forward specific reasons in light of the circumstances of the case, not least to enable the Court to carry out the European supervision entrusted to it (X. v. Latvia, cited above, § 107). Where the reasoning of domestic decisions is insufficient, with any real balancing of the interests in issue being absent, this would be contrary to the requirements of Article 8 of the Convention (ibid.; see also, mutatis mutandis, Schweizerische Radio- und Fernsehgesellschaft SRG v. Switzerland, no. 34124/06, § 65, 21 June 2012). In such a scenario, the domestic courts, in the Court's opinion, failed to demonstrate convincingly that the respective interference with a right under the Convention was proportionate to the aim pursued and thus met a ‘pressing social need’ (Schweizerische Radio- und Fernsehgesellschaft SRG, cited above, § 65).

Turning to the circumstances of the present case, the Court notes that the first applicant left behind the second applicant, when he left Egypt to seek asylum in Switzerland in 1997. Even though his application for asylum was rejected by the Swiss authorities, caution is called when determining whether he left his child behind of ‘his own free will’ (see Tuquabo-Tekle and Others, cited above, § 47). The Court observes, however, that the first applicant did not lodge a request for family reunification as soon as he got a residence permit in Switzerland after his marriage with a Swiss national in 1999, but brought the second applicant to Switzerland only in 2002 for three months on a tourist visa. In July 2003 the second applicant relocated to Switzerland for purposes of family reunification. However, in January 2005 the first applicant sent him back to Egypt in light of conflicts between the second applicant and the first applicant's spouse. Following the couple's separation, the first applicant lodged another request for family reunification in March 2006. The Court considers that these circumstances do not suggest a clear answer to the question whether or not the first applicant had always planned to live with his son in Switzerland.

Noting that the first applicant also enjoyed family life with his daughter who lived with her mother in Switzerland, the Court considers that it would be unreasonable to ask the first applicant to relocate to Egypt to live together with the second applicant there, as this would entail a separation from his daughter. The Court concludes that it would be unduly difficult for the applicants to enjoy family life together anywhere but in Switzerland (see Tuquabo-Tekle and Others, cited above, §§ 47–48; Şen, cited above, § 40; a contrario I.A.A. and Others v. the United Kingdom, cited above, § 44; Chandra and Others, cited above; Benamar v. the Netherlands (dec.), no. 43786/04, 5 April 2005).

The Court observes that the case of Şen concerned family reunification with both parents and that of Tuquabo-Tekle and Others concerned family reunification with one parent in a situation in which the other parent was deceased. The present case, by contrast, concerns the reunification of a child with his father while the child, at least at the time the request for reunification was lodged, lived with his mother. It considers that there was, therefore, no presumption that reuniting with the first applicant in Switzerland was per se in the best interests of the second applicant.

51. The Court observes that the first applicant had the right of custody for the second applicant pursuant to Egyptian law. While this legal status suggests that it would be in the best interests of the second applicant to live with his father in Switzerland, it cannot be the sole decisive factor. The Court considers that the second applicant's had lived almost all his life in Egypt and had strong social, cultural and linguistic ties to his country of origin. In Egypt he was cared for by his mother and later, after his mother's relocation to Kuwait, by his grandmother. The Court also notes that the second applicant was fifteen and a half years old at the time the request for family reunification was lodged and that he was not as much in need of care as young children. The Court previously rejected cases involving failed applications for family reunion where the children concerned had reached an age where they were increasingly able to fend for themselves (see I.A.A. and Others v. the United Kingdom, cited above, § 46; Berisha, cited above, § 56; Benamar, cited above; Chandra and Others, cited above). The Court notes that there were no major threats to the second applicant's best interests in his country of origin, unlike in the case of Tuquabo-Tekle and Others, where the grandmother who cared for the fifteen year old girl in Eritrea took her out of school against the mother's will and the girl was at risk of being married off (Tuquabo-Tekle and Others, cited above, § 50).

Having regard to the above, the Court considers that, applying the criteria established in its case-law (see paragraphs 43 to 47 above), no clear conclusion can be drawn whether or not the applicants' interest in a family reunification outweighed the public interest of the respondent State in controlling the entry of foreigners into its territory. Had the domestic authorities engaged in a thorough balancing of the interests in issue, particularly taking into account the child's best interests, and put forward relevant and sufficient reasons for their decision, the Court would, in line with the principle of subsidiarity, consider that the domestic authorities neither failed to strike a fair balance between the interests of the applicants and the interest of the State, nor to have exceeded the margin of appreciation available to them under the Convention in the domain of immigration.

The Court notes, however, that the Federal Supreme Court in its judgment of 5 July 2010 (see paragraphs 24 and 25 above) and other domestic courts examined the best interests of the second applicant, who was a child at the time the request for family reunion was lodged, in a brief manner and put forward a rather summary reasoning in that regard. It considers that the Federal Supreme Court did not place the second applicant's best interests sufficiently at the center of its balancing exercise and its reasoning, contrary to the requirements under the Convention (see paragraphs 46 and 47 above) and other international treaties, in particular the United Nations Convention on the Rights of the Child (see paragraphs 27 and 28 above), as well as Article 11 of the Constitution of the Swiss Confederation (see paragraph 29 above) and the case-law of the Federal Supreme Court (see paragraphs 32 and 34 above).

There has accordingly been a violation of Article 8 of the Convention.