ECtHR - Agraw v. Switzerland, no. 3295/06, 29 July 2010

Facts:

The applicant and her husband are Ethiopian nationals who had their asylum claims in Switzerland refused and were ordered to return to Ethiopia. They got married in 2002 in Lausanne. The applicant had been assigned a canton (reception centre) in Berne while her husband was in Vaud, pending their deportation. This was one and a half hours away by train.

The authorities refused their requests for the applicant to be assigned to her husband’s canton on the basis that domestic law did not allow for the possibility to change canton after the definitive closing of the asylum case and the expiry of the date by which they had to leave Switzerland. In its refusal decisions the authorities suggested that the applicant and her husband could make use of procedures to voluntarily depart from Switzerland to Ethiopia at any time, and noted that they had known at the time of marriage that they could not live together in Switzerland.

In 2005, the applicant gave birth to a son, who was separated from his father due to the Swiss measures. Another application to reassign her to his canton on the basis of family unity was refused.

She was eventually granted a residence permit to live with her husband in Vaud in 2008, on the grounds of family unity.

The applicant complained that the authorities’ refusal to assign her to the same canton as her husband violated her right to respect for family life under Article 8.  

Decision & reasoning:

The Court considered that States had no general obligation to allow foreign national couples to settle in the country.

However, the Court rejected the Swiss government’s argument that Article 8 was inapplicable as the couple was refused asylum. As the Swiss authorities were unable to enforce their deportation to Ethiopia given that the Ethiopian government routinely blocked repatriation of its nationals, the matter came within its jurisdiction and it was obliged to assume its responsibility under the Convention.

 The Court observed that the possibility of leading life as a couple was an essential element of the right to respect for family life. The interference with this right was provided for in domestic law and pursued the legitimate aim failing within the concept of economic well-being of the country, to equitably distribute asylum seekers between the cantons.

It noted that the applicant was prevented from living with her husband for approximately five years. Although the one-and-a-half hour train journey that separated her from her husband had allowed them to have regular contact, evidenced by the birth of their child, their prolonged separation had amounted to a serious restriction on their family life. Guidelines issued by the Federal Office for Refugees owed that since 1993 the Ethiopian authorities had been obstructing the repatriation of unsuccessful asylum seekers of Ethiopian origin, and that the Office had even temporarily stayed enforcement of deportation orders in 1997. As such, it was not possible for the couple to live together outside Switzerland.

Given the exceptional nature of the case and the length of time which the applicant was formally separated from her husband, the Court found that the measure had not been necessary in a democratic society and that there had been a violation of Article 8.  The applicant was awarded pecuniary and non-pecuniary damages. 

Outcome:

Violation of Article 8

Observations/comments:

The Court dismissed Switzerland’s preliminary objection as to admissibility relating to the loss of victim status. The decision to give permission to the applicant to live with her husband in 2008 did not deprive her of victim status relating to the restrictions suffered while her requests had been rejected, which had lasted for a considerable length of time. In addition, the government had not acknowledged any violation of her Convention rights.

The Court also found a violation of Article 8 in the case of Mengesha Kimfe v. Switzerland, no. 24404/05 which had substantially the same facts and was handed down on the same day.

The Committee of Ministers closed examination of the execution of both judgments after Switzerland paid each applicant the just satisfaction as provided in the judgments.