ECtHR – El Ghatet v. Switzerland, Application No. 56971/10, 8 November 2016
| Country of applicant: | Egypt |
| Court name: | European Court of Human Rights (Third Section) |
| Date of decision: | 08-11-2016 |
| Citation: | European Court of Human Rights, El Ghatet v. Switzerland, Application No. 56971/10, 8 November 2016 |
Keywords:
| Keywords |
|
Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
|
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.” |
|
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 seeking damages on the basis of a violation of article 8 ECHR in respect of the refusal of the Swiss authorities to permit the family reunification of an Egyptian son with his father, who has Egyptian and Swiss nationality.
Facts:
On 1 March 2006, the first applicant lodged a request for family reunification with the second applicant (his son) for whom he had custody. This request was refused in February 2007, but the applicant appealed this. This appeal was dismissed, following which the applicant lodged an appeal against the dismissal. In September 2007, that appeal was granted but the Federal Office for Migration refused to grant a permanent residence permit to the second applicant. The first applicant appealed this. The family situation of the second applicant in Egypt then changed. The appeal on the refusal to grant a permanent residence permit was dismissed. The applicant appealed this which was later dismissed by the Swiss Federal Supreme Court on the basis that the applicants had not submitted sufficient reasons for family reunification. According to the Court, the applicant’s son had closer ties to Egypt where he had been cared for by his mother and grandmother. Moreover, the father should have applied for family reunification immediately after arriving in Switzerland. The applicants claim there has therefore been a violation of article 8 ECHR.
Decision & reasoning:
The Court states that the object of article 8 is to protect the individual against arbitrary action by the public authorities. There must be a fair balance struck between interests of the individual and interest of the community as a whole. The Court will take into account the circumstances of each case but recognises that the State has the right to control the entry of foreign nationals into its territory. The Court considers whether or not the parents abandoned any idea of future reunion by irrevocably leaving their children in the country of origin and whether allowing the children to enter would be the most appropriate means of them developing their family life. The Court also considers that the children’s best interest is paramount in such cases. The Court reiterates that it is primarily a task for the domestic courts to asses the best interests of the child in each case. In this case, the Court deems that domestic courts failed to demonstrate that the interference was proportionate with the aim pursued.
The Court first considers that it would be unreasonable to ask the first applicant to relocate to Egypt to live together with the second applicant there, as this would entail a separation from the first applicant’s daughter. As the present case concerns the reunification of the child with his father, who lived with his mother, there is no presumption that reuniting with the father was per se in the best interest of the child. Whereas the first applicant has the right of custody pursuant to Egyptian law, the Court does not find this to be the sole decisive factor. It is further noted that the second applicant had strong social, cultural and linguistic ties to his country of origin and was cared for by both his mother and grandmother. Moreover, the second applicant had reached the age of 15 when the request for family reunification was lodged and there were no other major threats to his best interests in the country of origin.
Based on these facts, the Court finds that no clear conclusion can be drawn whether or not the applicants’ interest in a family reunification outweighed the public interest of the respondent State in controlling the entry of foreigners into its territory. Nevertheless, the Court notes that the domestic court have merely examined the best interest of the child in a brief manner and put forward a rather summary reasoning. As such the child’s best interests have not sufficiently been placed at the center of its balancing exercise and reasoning contrary to the ECHR, the UN CRC and the Constitution of the Swiss Confederation. The Court therefore finds a violation of Article 8 ECHR.
Outcome:
Application granted.
Observations/comments:
This case summary was written by Ashley E. Mount.
Cited National Legislation:
| Cited National Legislation |
| Constitution of the Swiss Confederation of 1999 |
| article 11 |
| Foreign Nationals Act 2005 |
| article 126(1); article 17(2) |
Follower Cases:
| Follower Cases |
| ECtHR - I.M. v. Switzerland, 9 April 2019, Application No. 23887/16 |
Other sources:
ECtHR case law
I.A.A and others v UK, Application No. 25960/13
Berisha v Switzerland, Application No. 948/12
Neulinger and Shuruk v Switzerand, Application No. 41615/07
M.P.E.V and others v Switzerland, Application No. 3910/13
Tarakhel v Switzerland, Application No. 29217/12
X v Latvia, Application No. 27853/09
B v Belgium, Application No. 4320/11
Schweizerische Radio- und Fernsehgesellschaft SRG v. Switzerland, Application No. 34124/06