ECtHR - Dabo v. Sweden, Application No. 12510/18, 18/01/2024
| Country of applicant: | Syria |
| Court name: | European Court of Human Rights |
| Date of decision: | 18-01-2024 |
| Citation: | ECtHR, Dabo v. Sweden, Application No. 12510/18, 18 January 2024 |
| ECLI: | ECLI:CE:ECHR:2024:0118JUD001251018 |
Keywords:
| Keywords |
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Refugee Status
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Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Family unity (right to)
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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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Family member
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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
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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 Court found no violation of Article 8 ECHR took place as the requirements set out by the Swedish Temporary Restrictions Act were in line with the Family Reunification Directive and the European consensus. The balancing exercise was therefore performed correctly.
Facts:
Mr. Dabo, a Syrian citizen, left his country for Jordan in the summer of 2013. His wife and five children joined him in Jordan and continued to reside there under UNHCR protection. After shortly returning to Syria to work in a hospital, the applicant travelled via Turkey to Greece where he arrived in April 2014. In Greece, he married his second wife a few months later and the couple entered Sweden where they applied for asylum. They were granted permanent residence permits and refugee status under the Swedish Aliens Act.
On 20 July 2016, Sweden enforced the Temporary Restrictions Act (2016:752). One of the requirements introduced by this Act was a maintenance requirement for family reunification, with an exemption from this requirement only if family members applied within three months of the refugee status being granted.
More than eight months after the applicant had been granted refugee status, his first wife and five children lodged applications for residence permits at the Swedish Embassy in Jordan. At the time, the applicant’s situation was deemed insufficient for the entire family. The applicant had claimed that his first wife contacted the Swedish Embassy in already in April 2016.
The Migration Agency refused the applications, appeal was dismissed by the Migration Court, and leave to appeal to the Migration Court of Appeal was refused.
Decision & reasoning:
The Court reiterated its established case law under Article 8 ECHR on family reunification by stating that states have a right to control immigration and are not generally obliged to allow family reunification. The Court thereby reiterated that states must strike a fair balance between immigration control and the individual’s right to family life in these cases. In this context, the Court emphasized that there is a broad European consensus that refugees should benefit from more favourable family reunification procedures as they are often in a particularly vulnerable position. The central question was therefore whether Sweden struck a fair balance, within its margin of appreciation.
The Court attached significant importance to the fact that the Swedish rules were based on the EU Family Reunification Directive, especially Article 12(1). This article allows Member States to require sufficient income and accommodation when an application is submitted outside the three-month period. The Court therefore accepted the legitimacy of the Swedish exemption period. The Court also stressed that an individualised assessment of the applicant’s circumstances by the Swedish authorities had taken place as the domestic courts considered his income, housing situation, future employment prospects, and family circumstances. The Court continued its reasoning by stressing that the refusal is not permanent as the applicant could submit a new application once he met the maintenance requirements. This aspect was important in the proportionality assessment, because the applicant was a qualified doctor participating in integration programmes. The Court considered that he thus had realistic prospects of obtaining suitable employment and accommodation.
Outcome:
The Court concluded that Sweden had not exceeded its margin of appreciation and unanimously found no violation of Article 8 ECHR.
Observations/comments:
This summary was written by Warre Roelants during her participation in the Migration Law Clinic of Gent University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden, Act, Act on Temporary Restrictions of the Possibility of Being Granted a Residence Permit in Sweden (SFS 2016:752), 22 June 2016 |
Cited Cases:
| Cited Cases |
| ECtHR - Jeunesse v. the Netherlands [GC], no. 12738/10 |
| ECtHR - M.T. and Others v. Sweden, Application No. 22105/18, 20/10/2022 |
| ECtHR - B.F. and Others v. Switzerland, Applications Nos. 13258/18, 15500/18, 57303/18 and 9078/20, 04/07/2023 |
| CJEU - Chakroun, Case C-578/08, 04/03/2010 |
| CJEU - K and B, Case C-380/17, 07/11/2018 |
| ECtHR - M.A. v. Denmark, Application No. 6697/18, 09/07/2021 |