Greece - Single-member First Instance Court of Kos, 13 May 2013, Application No. 390/2013
| Country of Decision: | Greece |
| Country of applicant: | Afghanistan |
| Court name: | Single-member First Instance Court of Kos (non-contentious proceedings) |
| Date of decision: | 13-05-2013 |
| Citation: | Application No. 390/2013 |
Keywords:
| Keywords |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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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.” |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Integration measures
Description
Member Statemeasures intended to further the integration of immigrants into their host communities. Per Art. 7(2) FRD Member States may require third country nationals to comply with integration measures, in accordance with national law. |
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Residence document
Description
“any authorisation issued by the authorities of a Member State authorising a third-country national to stay in its territory, including the documents substantiating the authorisation to remain in the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the responsible Member State as established in this Regulation or during examination of an application for asylum or an application for a residence permit” |
Headnote:
This case concerned an application for a licence for a civil marriage with a Greek citizen where there was an inability to provide a certificate of being unmarried or a birth certificate because of disrupted relationship with homeland and in the context of the submission of a sworn statement regarding the absence of any impediment to marriage. The case considered the balance between the safeguards of family law and a State's obligation to protect the fundamental rights of refugees. Under the principle of proportionality, the private and family life of the individual is inviolable, bearing in mind that the lack of evidence of being unmarried should not prevent the him from being granted a licence to enter into a civil marriage with his partner, the mother of their two minor children which he has already voluntarily recognised. It is possible to substitute in concreto the said evidence with a simple sworn statement and, therefore, the Applicant does satisfy the legal requirements for the granting of a marriage licence.
Facts:
The Applicant was an Afghan citizen from the town of Balkh in Afghanistan, holder of a foreign asylum-seeker card valid until 1.6.2013. Since 2009 he had been cohabiting with a Greek citizen with whom he had two unbaptised children who have Greek nationality and which he formally recognised by deed. On 13.5.2011 he submitted an application to the Municipality to obtain a licence for a civil marriage. For this purpose he supplied a) a certificate (identity document) as an authenticated copy and in an official translation into Greek, which was issued and signed by the General Administrator of the town of Balkh in Afghanistan and which confirmed, inter alia, that he was unmarried; b) a sworn statement before the Municipality concerning there being no impediment to his marriage, written in Greek and accompanied by a sworn statement concerning his inability to provide any other document about being unmarried from the authorities in his homeland. This inability was due to the fact that there is no Greek embassy or consulate in Afghanistan or vice versa and because there had been a break in the Applicant's relations with the said State and, therefore, he was unable to communicate with it. Finally, the Applicant submitted a copy of the Athenian daily newspaper “I Avgi” where there was an announcement of his forthcoming marriage.
The municipal Register Office rejected his application on the grounds that the verification of being unmarried which had been issued by the Administrator of Balkh, Afghanistan, had not been authenticated by a Consular official. For a foreigner to be issued with a marriage licence during the asylum application process he must submit confirmation from the relevant Consulate or other competent authority that there is no such impediment to marriage, and this cannot be substituted by submitting a sworn statement to the same effect (which is the case for Greek nationals).
Decision & reasoning:
The First Instance Court examined the facts and found that the Applicant had submitted all the documentation which the law requires to issue a civil marriage licence apart from certification of being unmarried, authenticated by the domestic authorities; and this was the municipal Register Office's reason for rejecting the application.
However, given the absence of an Afghan embassy or consulate in Greece and since the Applicant had broken his ties with the said State – a fact which was confirmed by the pending application for asylum – it was not possible for him to supply the required document. Nevertheless, he gave the Municipality a sworn statement to confirm that there was no impediment to his marriage.
The First Instance Court held that the mere absence of the certificate of being unmarried was not sufficient to prevent him from being granted a civil marriage licence, and that the said certificate could be substitutedin concreto by a simple sworn statement.
Otherwise, the State's inflexible insistence on the Applicant providing a certificate of being unmarried would be a gross injustice not only for him but also for his partner and their children, since it would thus impede formal legal recognition of the family relationship which had, in essence, already been formed.
Therefore, the Municipality was wrong to refuse to grant the Applicant a civil marriage licence since he hadin concreto satisfied the legal requirements.
Outcome:
Application upheld. Applicant to be granted a civil marriage licence.
Observations/comments:
First Instance Court composed of: A.S. (Judge), M.S. (Clerk)
Applicant: M.E.
Solicitor: Vasilis Kerasiotis (member of the Legal Service of the Greek Council for Refugees)
The Court, directly applying laws of superior force and the constitutional principle of proportionality took a great step towards the protection of refugees' social rights as well as those of others who are directly affected (spouse, minor children). The Greek court directly applied the relevant Articles of the ECHR (8 and 12) and of the EU Charter of Fundamental Rights (Articles 7 and 9)
See Press release here.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Greece - Constitution - Art. 21 |
| Greece - Constitution - Art. 9 |
| Greece - Constitution - Art. 25 |
| Greece - Civil Code - Article 4 |
Other sources:
– State Legal Council opinion no. 78/9-03-2009: for a foreigner who has submitted an application for asylum to celebrate a civil marriage and be granted a marriage licence he must, pursuant to Article 1(3)(d) of Presidential Decree 391/1982, submit confirmation from the relevant Consulate or other competent authority that there is no impediment to that foreigner's marriage; and that confirmation cannot be substituted by submitting a sworn statement to the same effect, as Greek nationals can do, because the pink card is not confirmation of identity.
– Article 4(6) of the Greek Ombudsman's finding 3094/2003 concerning the right of political asylum seekers to get married: the legality of a foreigner's residence is not a condition for marriage; and despite the fact that the law requires confirmation of being unmarried before a marriage licence is issued, this cannot be provided by people where there is evidence that they have broken their ties with their homeland.
– Guideline 94798/15-11-1982 from the Citizenship Department of the Interior Ministry: In the case of recognised political refugees or asylum seekers, it should be sufficient to require the submission of a sworn statement concerning the absence of impediments to marriage, as the law stipulates in the case of Greek nationals.