ECtHR - Mengesha Kimfe v. Switzerland, no. 24404/05, 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 2003 in Lausanne. The applicant had been assigned a canton in St. Gall while her husband was in Vaud, pending their deportation.

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.

The applicant lived with her husband illegally in Lausanne. In December 2003, she was summoned to the police station, handcuffed and taken back to St. Gall.  

In 2008, the applicant obtained leave to live in her husband’s canton.

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 in fact, she had lived with him in Lausanne for most of the time, she was liable to criminal penalties for illegal residence whenever she visited him. She also suffered from practical and financial disadvantages. Due to the Ethiopian authorities prevention of repatriation for its nationals, 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 Agraw v. Switzerland, no. 3295/06  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.