ECtHR - B.F. and Others v. Switzerland, Applications Nos. 13258/18, 15500/18, 57303/18 and 9078/20, 04/07/2023

Facts:

The four applicants are Eritrean and Chinese refugees who were granted provisional admission to Switzerland. They applied for family reunification but received negative decisions because they did not meet various requirements, in particular the obligation not to rely on social assistance. The applicants argued that this economic requirement was disproportionate in view of their vulnerability and efforts to be self-sufficient economically. Before the ECtHR, all applicants invoked Article 8 of the Convention. Some also invoked a violation of Article 14 read in conjunction with Article 8 of the Convention.

Decision & reasoning:

The Court focused on the question of whether the Swiss authorities, under Article 8 of the Convention, had a positive obligation to grant family reunification to family members of the applicants.

The Court outlined that the crucial issue revolves around whether the refusal of family reunification requests due to the families' potential lack of financial independence in Switzerland struck a fair balance between the interests of the individuals and those of the Community. The applicants, who were recognized as refugees, expressed a legitimate interest in being reunited with their family members, while the Swiss State emphasised its interest in immigration control for the economic well-being of the country.

The Court noted the strict requirements for family reunification, citing reports that indicate a low number of provisionally admitted refugees benefiting from family reunification and the challenges they face in meeting the criteria. It recognised the concerns raised by international bodies, including CERD, CRC, and CESCR, regarding the restrictive nature of family reunification for provisionally admitted persons.

While the Court did not challenge the requirement of non-reliance on social assistance, it called for flexibility in its application, especially as time passes and if insurmountable obstacles to family life in the country of origin persist. Indeed, the application of this requirement without flexibility could lead to the permanent separation of families.

Overall, the Court found that the Swiss legislation, as applied, did not strike a fair balance between the individual's interest in family reunification and the Community's interest in immigration control. The Court stressed that national authorities should not expect the impossible from the applicants who have shown their efforts to become economically independent.

The Court found a violation of Article 8 of the Convention while holding that there was no need to examine separately the complaints under Article 14 read in conjunction with Article 8.

Outcome:

In its decision, the Court found violations of Article 8 in applications 15500/18, 57303/18, and 13258/18, while application 9078/20 did not result in a violation since the applicant was relying on social assistant entirely despite being capable to work at least part-time.

Observations/comments:

This case was written by Oleksandr Khachaturian, student at the Human Rights and Migration Law Clinic of the University of Gent.