Case summaries

Violation of Article 8 regarding the right to respect for family life, arising from a domestic court order for the return of two children from Finland to Russia under the Hague Child Abduction Convention. 

In this case the Upper Tribunal provided that the Refugee Convention doesn’t offer protection from social conservatism and that there is no protected right to enjoy a socially liberal lifestyle. However, the Convention may be considered to apply where  ‘westernisation’ reflects a protected characteristic such as political opinion or religious belief, or if there is a real risk that the individual in question would be unable to mask his westernisation and persecutors would impute such protected characteristics to him. 

The current case concerns the expulsion of Mr. Arif Savran “the applicant” from Denmark to his country of origin, Turkey in 2015 because of his criminal convictions in Denmark. The applicant argued that his expulsion to Turkey had been in violation of Article 3 and Article 8 of the European Convention on Human Rights because he was suffering paranoid schizophrenia and that he was a “settled migrant”.

The Court found that expulsion of the applicant to Turkey did not violate Article 3 under the Paposhvili threshold test, because the evidence was not “capable of demonstrating that there are substantial grounds” for believing that as a “seriously ill person”, the applicant “would face a real risk… resulting intense suffering or to a significant reduction in life expectancy”.  Also, there was no evidence to show that applicant was causing harm to himself.

In relation to the violation of Article 8, the Court found that Danish authorities failed to consider the mental conditions of the applicant and the applicant expulsion to Turkey violated his “private life” under the Article 8 of the Convention.

The expulsion of the applicant to Somalia was in violation of Article 8 of the Convention, because the offences committed by the applicant did not posed a threat to public order and he had not previously been warned of expulsion or had a conditional expulsion order imposed. Furthermore, the applicant also had very strong ties to Denmark and virtually no ties with Somalia. Therefore, the expulsion of Mr. Abdi, combined with a life-long ban on returning, was disproportionate.

The State Secretariat of Migration (SSM) is obliged to assess the proportionality of a cessation measure in a case of a granted temporary residence in Switzerland. It was concluded that the cessation of temporary residence is not proportionate, when the applicant showed considerable efforts to integrate in the host community such as learning languages and practicing several internships to obtain a job in that country. His return would hamper all those integration efforts.

The right to family reunification involving Union citizens who are minor children living with their mothers, who are third country nationals, in the territory of the Member State of which the children are nationals and changes in the composition of the families following the mothers’ remarriage to third country nationals and the birth of children of those marriages who are also third country nationals. The case involves the right to respect for family life and how to take into consideration the children’s best interests.

The right to family life can outweigh the ‘state responsibility’ criteria in the Dublin II Regulation. The Court held that the application for asylum should be processed in Sweden, in order to secure the right to family and private life (Art 8 of the European Convention on Human Rights), despite the fact that another State was responsible under the Dublin II Regulation.