ECtHR – Z.H. and R.H. v. Switzerland, Application No. 60119/12, 8 March 2016
| Country of applicant: | Afghanistan |
| Court name: | European Court of Human Rights (Third section) |
| Date of decision: | 08-03-2016 |
| Citation: | Z.H. and R.H. v Switzerland, Application No. 60119/12 [2016] ECtHR |
Keywords:
| Keywords |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
The applicants are Afghan nationals married religiously in Iran when the first applicant was 14 years old and the second applicant 18 years old. When they applied for asylum in Switzerland a year later, the Swiss authorities did not consider them as being married and the second applicant was subsequently expelled to Italy. They alleged that this expulsion constituted a violation of their Article 8 ECHR right to respect for family life. The Court found that the Swiss government had been justified in finding that they were not married, and held that the decision to expel the second applicant was not a violation of Article 8.
Facts:
The applicants, Ms Z.H. and Mr R.H., are Afghan nationals and cousins. They contracted a religious marriage in 2010 in Iran, where they were residing illegally at the time. Z.H. was 14 years old and R.H. was 18 years old at the time.
On 18 September 2011, they applied for asylum in Switzerland, which they had entered from Italy where they had already been registered as asylum seekers. The Federal Office of Migration (FOM) rejected their asylum applications on the grounds that Italy was the responsible State under Regulation no. 343/2003 (the Dublin Regulation). R.H. appealed against this, while Z.H. did not. The Federal Administrative Court (FAC) rejected R.H.’s appeal, noting that the applicants did not qualify as family members under the Dublin Regulation and so could not claim any right to family life under Article 8 ECHR.
On 3 May 2012, the FOM decided to reexamine Z.H.’s asylum request in Switzerland, while on 4 September 2012, R.H. was expelled to Italy, but returned illegally to Switzerland on 7 September 2012.
On 18 March 2013, the applicants requested the recognition in Switzerland of their religious marriage, and on 2 June 2014 their request was successful before the Court of First Instance of the Canton of Geneva.
The applicants were then granted asylum in Switzerland by a decision of 17 October 2014.
Z.H. and R.H. had lodged their application before the ECtHR on 18 September 2012, alleging a violation of their rights under Articles 3 and 8 ECHR by virtue of R.H.’s expulsion to Italy on 4 September 2012 and if this was to happen again. Additionally, they complained of having had no effective remedy at national level, contrary to Article 13 ECHR. On 23 June 2015, after obtaining asylum in Switzerland, the applicants informed the ECtHR that they nonetheless wished to maintain the part of their application concerning the alleged past violation of their Article 8 ECHR right to respect for family life by virtue of the expulsion of R.H. on 4 September 2012.
Decision & reasoning:
Having established that the only admissible part of the initial application was the alleged violation of Article 8 ECHR by the Swiss authorities in deciding to expel R.H. to Italy, the ECtHR considered that the question before it was whether, given the circumstances as a whole, Article 8 ECHR imposed a duty on the Swiss authorities, at the time of their decision to expel R.H., to allow him to reside in Switzerland to enable him to exercise any family life he might have established in Switzerland with Z.H. (as they had decided not to expel her).
To begin with, the Court held that the Swiss authorities, at the time of the expulsion of R.H. to Italy, had been justified in considering that the applicants were not married. Indeed, the Court firstly held that Article 8 ECHR cannot be interpreted as imposing on any contracting State an obligation to recognise a marriage contracted by a 14 year old child. Secondly, the Court held that the same applies to Article 12 ECHR, as it expressly provides that national law should prevail with regards to the regulation of marriage, which the Court held to be justified given the sensitive moral choices involved and the importance of the protection of children and the fostering of secure family environments. Additionally, the Court, in coming to its conclusion, noted that at the time of the expulsion, the applicants had not taken any steps to seek the recognition in Switzerland of their religious marriage.
Moreover, the Court held that a fair balance had been struck by the Swiss authorities at the time between the personal interest of the applicants in remaining together in Switzerland while waiting for the outcome of Z.H.’s asylum application, and the public order interest of the Swiss government in controlling immigration. Indeed, the Court noted that R.H. returned to Switzerland only three days after having been expelled to Italy, and was not expelled thereafter – even though his return and stay in Switzerland was illegal, he was allowed to remain to request a re-examination of his asylum application, which was eventually successful. Additionally, the Court noted that the applicants did not argue that Z.H. was ever prevented from joining R.H. after his expulsion.
The Court therefore concluded that the decision of the Swiss authorities to expel R.H. to Italy did not constitute a violation of Article 8 ECHR.
Outcome:
Application unsuccessful. The Court found that there had not been a violation of Article 8 ECHR.
Observations/comments:
This summary was written by Emily Claire Procter, GDL student at BPP University, London.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Keegan v Ireland, Application no. 16969/90 |
| ECtHR - Tarakhel v. Switzerland, Application no. 29217/12 |
| ECtHR- Van Mechelen and Others v. the Netherlands, Application no. 42857/05 |
| ECtHR - Jeunesse v. the Netherlands [GC], no. 12738/10 |
| ECtHR - Chojak v. Poland, no. 32220/96 |
| ECtHR - Singh and Others v. the United Kingdom (dec.), no. 30024/96 |
| ECtHR - Stamatios Karagiannis v. Greece, no. 27806/02 |
| ECtHR - A.S. v. Switzerland, Application no. 39350/13, 30 June 2015 |
| ECtHR - X., Y. and Z. v. United Kingdom, no. 21830/93 |
| ECtHR - Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 179-80, ECtHR 24 March 2011 |
| ECtHR – Z.H. and R.H. v. Switzerland, Application No. 60119/12, 8 March 2016 |
Follower Cases:
| Follower Cases |
| ECtHR - Kahadawa Arachchige and Others v. Cyprus (Application nos. 16870/11, 16874/11 and 16879/11), 19 June 2018 |
Other sources:
Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland, 26 October 2004, entered into force 1 March 2008 (OJ L 53 of 27 February 2008).