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Opublikowano: www.echr.coe.int

Decyzja
Europejskiego Trybunału Praw Człowieka
z dnia 7 stycznia 2020 r.
8158/18

UZASADNIENIE

Wstęp

ECLI:CE:ECHR:2020:0107DEC000815818

THIRD SECTION

DECISION

Application no. 8158/18

Mohammad Naeem DOST ALI

against Sweden

The European Court of Human Rights (Third Section), sitting on 7 January 2020 as a Committee composed of:

Georgios A. Serghides, President,

Erik Wennerström,

Lorraine Schembri Orland, judges,

and Stephen Phillips, Section Registrar,

Having regard to the above application lodged on 12 February 2018,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

Uzasadnienie faktyczne

THE FACTS

1. The applicant, Mr Mohammad Naeem Dost Ali, is an Afghan national who was born in 1986 and lives in Vedevåg. He was represented before the Court by Ms E. Orfanopoulou, a lawyer practising in Umeå.

2. The Swedish Government ("the Government") were represented by their Agent, Ms C. Hellner Kirstein, of the Ministry for Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The Government pointed out that it was questionable whether the applicant and his wife were legally married. In its decision of 23 March 2016 the Stockholm District Court (tingsrätten) considered that the documents submitted by the applicant, together with other information in the case, did not provide sufficient support to indicate that the applicant was married to his wife when their daughter was born or at any later point in time. For the sake of simplicity, the Court will refer to the applicant's companion as his wife.

1. Background

5. In 2012 the applicant left Iran together with his wife, their son (born in 2007) and their daughter (born in 2010). On the way to Sweden the family was separated. The applicant's wife and daughter continued to Sweden together, while the applicant and his son remained in Greece.

6. On 1 October 2012 the applicant's wife and daughter arrived in Sweden and applied for asylum.

7. Subsequently, the applicant's wife began a relationship with a man who abused her daughter. On 10 May 2013 this man was convicted of aggravated assault and unlawful deprivation of liberty and sentenced to three years and six months in prison by the District Court of Örebro. The judgment was upheld on appeal.

8. On 10 June 2013 the applicant's wife was also convicted of aggravated assault and sentenced to one year and six months in prison by the District Court, on the grounds that she had not ensured that her daughter received medical care for her injuries. The prosecutor's request that she be expelled as a consequence of this conviction was rejected by the court, which found that such an interference with her and her daughter's rights under Article 8 of the Convention would be disproportionate.

9. The applicant's daughter was taken into public care on 1 February 2013 and was placed in a family home (familjehem) on 17 May 2013. She was granted a permanent residence permit in Sweden on 12 December 2013. On the same day, her mother was granted a temporary residence permit which was renewed in November 2016 and February 2018. The applicant's daughter has had no contact with her mother since she was taken into public care.

2. Immigration proceedings

(a) Asylum proceedings

10. On 14 February 2014 the applicant and his son arrived in Sweden and applied for asylum. The applicant's son is not an applicant in the present case before the Court.

11. During his asylum interview, the applicant explained that he had a wife and daughter in Sweden, but that he had lost contact with them. During the proceedings before the Migration Agency (Migrationsverket), the applicant attempted to obtain information concerning his wife and daughter, but he was unsuccessful since their contact information and the details of their cases were confidential. However, he managed to find out that his wife and daughter had been granted residence permits on 12 December 2013. Therefore, on 19 October 2015, the applicant and his son applied for residence permits based on family ties.

12. During the proceedings, the Migration Agency received a written statement from the social services to the effect that the applicant had no contact with his wife and daughter, that the social services did not see any advantages to such contact in the future, that there were no plans to reunite the family and that the social services did not consider it appropriate for the family to be reunited. This assessment was communicated to the applicant, but some parts of the document were not disclosed to him for reasons of confidentiality.

13. On 18 December 2015 the Migration Agency rejected the applicant's and his son's asylum requests, finding that there were no grounds for asylum. The Agency also rejected their application for residence permits based on family ties, stating that they had not proved their identity, which was a legal requirement for the grant of such a permit. The Agency concluded that the applicant's birth certificate, which was a simple document which had been mended with tape, with a photograph of a young boy and with his name spelled differently from his application, could not by itself prove the applicant's identity. Furthermore, the Agency noted that the applicant had not shown that he had had contact with his wife or daughter in Sweden. It further had regard to the written statement of the social services. Therefore, the Agency concluded that the applicant and his son had not proved that they had family ties to anyone in Sweden. The Agency ordered their deportation to Afghanistan.

14. By letter dated 26 January 2016 the applicant and his son appealed to the Migration Court (Migrationsdomstolen) in Luleå. During the proceedings, they requested an oral hearing. They also requested an extension of time to plead their case since they had found out about what had happened to the applicant's daughter after her arrival in Sweden, and since custody proceedings were ongoing. They argued that the case should be referred back to the Migration Agency because of this new information, the ongoing custody proceedings and alleged deficiencies in the Agency's handling of the case. Alternatively, they argued that the Migration Court should grant them asylum or residence permits based on family ties. The Migration Court granted an extension of time, but rejected the request for an oral hearing.

15. On 7 October 2016 the Migration Court rejected the appeal. The court found that there were no grounds for granting asylum. With regard to the family ties, the court made the same assessment as the Migration Agency concerning the applicant's identity. Moreover, the court noted that the applicant's daughter had come to Sweden in 2012 with another adult, that a long time had passed since the applicant had met her, especially considering her young age, and that no contact visits were planned. There existed thus no special relationship of dependence between the applicant and his daughter. The court also stated that the applicant had not shown that he had custody of his daughter or that he had been granted contact rights. He could therefore not be granted a residence permit based on family ties.

16. Subsequently, by letter dated 10 November 2016, the applicant and his son appealed to the Migration Court of Appeal (Migrationsöverdomstolen) arguing, inter alia, that the Migration Court had committed a grave procedural error by not examining their request to stay the proceedings in the Migration Court until the District Court of Stockholm had decided on the pending case concerning custody and contact rights.

17. On 27 January 2017 the Migration Court of Appeal refused the applicant and his son leave to appeal. The expulsion decision thus became final and non-appealable.

(b) Enforcement of the expulsion order

18. On 13 February 2017 the applicant requested the Migration Agency to stay the enforcement of the expulsion order stating, inter alia, that it was probable that the Stockholm District Court would consider his wife an unfit guardian and therefore transfer custody of the daughter to the applicant. It would then be possible to end the daughter's public care. He requested an extension to be able to submit supplementary information regarding Stockholm District Court's upcoming judgment, which would be available to him after 23 March 2017. The Migration Agency decided on the same day not to stay the enforcement of the expulsion order.

19. On 2 May 2017 the Migration Agency learned that the main hearing in the custody case had been cancelled, that no decision had been taken in the custody matter and that no contact was planned.

20. Subsequently, on 6 May 2017, the Migration Agency decided that the information concerning the applicant's request for custody or contact rights did not amount to such new circumstances that would give the Agency reason to make any other assessment than the one previously made. The Agency concluded that, at present, there were no impediments to enforcement of the expulsion order, but informed the applicant that he could submit another application for staying the enforcement of the expulsion order if he were to be granted custody or contact rights at a later stage.

21. On 14 August 2017 the applicant and his son applied again to the Migration Agency, submitting that there were impediments to the enforcement of the deportation order. They requested that the enforcement be stayed and that they be granted residence permits based on family ties. They referred to Stockholm District Court's judgment of 22 June 2017, which granted the applicant contact visits with his daughter. They stated that the first contact visit had successfully taken place and that more visits were planned. They argued that deportation would make further contact impossible and would be contrary to the best interests of the child and to Article 8 of the Convention.

22. On 18 August 2017 the Migration Agency rejected the applicant's and his son's request. The Agency stated that the applicant and his son had not proved their identity, since they had not submitted any acceptable identity documents. The Agency referred to domestic case-law (MIG 2012:1) according to which the burden of proof in regard to an applicant's identity could be alleviated in cases concerning family reunion of a parent and child if it was impossible for the applicant in question to obtain identity documents from his or her country of origin. However, since there was no indication that the applicant and his son could not arrange for national Afghan passports, the Agency found that there was no reason to lessen the burden of proof. Considerations regarding the best interests of the child were not enough either to deviate from the requirement that they prove their identity. Thus, it was not clear that the applicant and his son would have been granted residence permits based on family ties if, in accordance with the general rule, they had applied for permits before entering Sweden. Therefore, the Agency concluded that there were no impediments to the enforcement of the deportation order and no grounds on which to grant the applicant and his son residence permits. This decision was not subject to appeal.

23. On 22 December 2017 the Afghan Embassy in Stockholm issued the applicant a passport. However, according to the Government, the applicant has not, to date, submitted any passport to the Migration Agency or initiated any proceedings before the Agency since allegedly being issued a passport.

3. Custody and contact proceedings

(a) Proceedings before the Stockholm District Court

24. On 11 June 2015 the social welfare authorities decided to begin proceedings to transfer the daughter's custody to the foster parents before the Stockholm District Court. Her mother had consented to the transfer of custody. The authorities had reasoned their decision by stating, inter alia, that the daughter had been in the foster home for two years and that she had settled in there and was part of the foster family. She saw her foster parents as her real parents and called them mum and dad. She had a strong attachment to her foster parents.

25. On 29 October 2015 the applicant initiated court proceedings against his wife in the Stockholm District Court, requesting contact rights with his daughter. On 29 February 2016 he requested custody of his daughter or, in the alternative, joint custody, and at least for his daughter to have the right to contact with him. He requested an interim decision to be issued in the matter. On 16 March 2016 the District Court held an oral preparatory hearing concerning both the custody and the contact rights.

26. On 23 March 2016 the court rejected the applicant's request for an interim decision. At the same time, the court ordered the social services to conduct a custody and contact investigation (vårdnads-, boende- och umgängesutredning). The applicant appealed against this decision but on 14 April 2016 the Svea Court of Appeal (hovrätten) refused him leave to appeal.

27. On 27 September 2016 the municipality submitted the results of the custody and contact investigation.

28. On 22 June 2017 the Stockholm District Court decided to transfer custody of the applicant's daughter to her family home parents and granted the applicant limited contact rights. The court noted that the applicant's wife was their daughter's sole guardian at that time and that she had consented to the transfer of custody. Nothing had emerged to show that the applicant was not suitable as a contact parent. The court found, considering the circumstances of the case and the opinion of the social services, that it was nevertheless best for the child to stay with her family home parents and that they be granted custody of her. The court also found that it was in the best interests of the child to be given a chance to establish a connection with her biological father but that, considering the long time they had spent apart from each other, the contact should initially be limited. Therefore, the applicant was granted the right to have contact visits with his daughter once a month for three hours at a time, on a total of twelve occasions. The visits were to take place in the family home and in the presence of the child's guardians. The court stated that it could not decide how the contact should proceed after these occasions, since that would depend on the circumstances at that time. The court expressed its hope that the parties could find a solution for how the contact would work on a long–term basis.

29. The applicant did not appeal against this decision.

30. On 7 July 2017 the social welfare authorities ended the daughter's public care since the foster parents had been granted custody.

31. Following the Stockholm District Court's judgment, contact visits between the applicant and his daughter took place on 22 July, 28 October and 25 November 2017, and on 3 and 17 February 2018. Further visits were planned to take place on 31 March, 28 April, 26 May and 26 June 2018. Visits did not take place in August and September 2017 because the applicant had difficulty financing the trip to his daughter's home. The visit in December 2017 was cancelled by her guardians for other reasons. In October 2017 the applicant was granted financial aid in order to travel for the visits, and in January 2018 he was given new accommodation closer to his daughter's home. According to the applicant, the contact visits have been successful and the relationship between him and his daughter, as well as between her and her brother, is improving. She knows that they are her biological father and brother.

(b) Subsequent proceedings before the Örebro District Court

32. On 7 February 2018 the applicant initiated proceedings before the Örebro District Court to be granted the right to have contact visits every second week for two hours at a time, instead of the previous arrangement.

33. According to a report prepared by the Social Welfare Committee, the daughter's foster parents should have been able to decide, in consultation with the child and adolescent psychiatry service, what the level of contact should be on the basis of her well-being and health. They proposed that contact should not be regulated in a decision for the time being. Moreover, it appears from the report that the daughter's foster parents separated in September 2017 and that she mainly lives with her foster mother, together with the foster mother's daughters. She lives with her foster father every other weekend and every Wednesday.

34. On 9 April 2018 an oral preparatory meeting was held. At the meeting the parties agreed that the contact order given by the Stockholm District Court on 22 June 2017 no longer applied, that the applicant would send a letter to her daughter every month and that her foster parents would send a letter to the applicant every month informing him about her well-being and what she was doing.

35. On 2 October 2018 the oral preparatory meeting was continued. It appeared that the daughter was being treated for post-traumatic stress disorder and that this treatment was going to last as long as it was needed. The District Court decided that the main hearing was going to be held on 22 January 2019.

36. On 22 January 2019 the Örebro District Court confirmed the parties' settlement in the case. The parties had agreed that the contact between the applicant and his daughter would take place by letters to be sent every month. This arrangement replaced the contact rights ordered by the Stockholm District Court on 22 June 2017. The parties also agreed to plan, together with the social welfare authorities, how the physical contact between the applicant and her daughter would be resumed after her treatment was over.

37. It is not known whether this decision has been appealed against.

B. Relevant domestic law

38. The basic provisions applicable concerning the right of aliens to enter and to remain in Sweden are laid down in the Aliens Act (Utlänningslagen, Act no. 2005:716).

39. There is no explicit provision in the Swedish Aliens Act stating that an applicant's identity must be confirmed in order for him or her to be granted a residence permit based on family ties. However, according to preparatory works and case-law, this is the principal rule (see Government Bill 2005/06:72 p. 68-69, Government Bill 2009/10:137 p. 17 and MIG 2011:11).

40. In the case MIG 2012:1, the Migration Court of Appeal found that, in family reunion matters, there may be circumstances that justify applying a lower standard of proof regarding an applicant's identity. This is, for example, the case if an applicant comes from a country where it is difficult to obtain acceptable identity documents. It may thus suffice that the applicant's identity is made probable by confirming parenthood of a common child together with the resident in Sweden. This practice was confirmed by a later judgment where the Migration Court of Appeal reiterated that the exception only concerned parents who had lived together outside Sweden prior to their separation (MIG 2014:16).

41. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has acquired legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia, that enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment, or where there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these criteria, the Migration Agency may instead decide to re-examine the matter. Such re-examination is to be carried out where it may be assumed, on the basis of new circumstances relied upon by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and that these circumstances could not have been raised previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Agency will decide not to grant re-examination (Chapter 12, section 19).

Zarzuty

COMPLAINT

42. The applicant complained that the domestic immigration proceedings, and their outcome, violated his right to respect for family life as guaranteed by Article 8 of the Convention.

Uzasadnienie prawne

THE LAW

43. The applicant complained that the decision to expel him from Sweden was in violation of his right to respect for family life as provided in Article 8 of the Convention, which reads as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

A. Submissions by the parties

1. The Government

44. The Government noted that the decision to expel the applicant had become final in 27 January 2017 and that he had lodged his application with the Court only on 12 February 2018, that was, more than six months after the final decision. The decision on enforcement of the expulsion order should not be taken as the starting point for the six-month rule. Moreover, since the case did not concern an alleged risk of ill-treatment contrary to Articles 2 and 3 of the Convention but family reunion under Article 8 of the Convention, the actual expulsion of the applicant should not be taken as a starting point for the six-month rule. The applicant had thus failed to comply with the six-month rule.

45. The Government further argued that, in any event, the applicant had failed to exhaust all effective domestic remedies since he had not provided the domestic authorities and courts with the passport which he had allegedly been issued on 22 December 2017. He should have lodged an application under Chapter 12, section 18, of the Aliens Act to invoke the new circumstance that he had now been issued a passport. The previous decisions taken in the applicant's case did not bar him from lodging a new application under Chapter 12, section 18, of the Aliens Act and raising the fact that he had allegedly been issued a passport. Since it was assumed that it would not be impossible for the applicant to obtain a passport, there was no need to relax the burden of proof in respect of his identity. This assumption had proved subsequently to be correct. The applicant had thus failed to exhaust the effective domestic remedies.

46. The Government argued that, in any event, the applicant's application was manifestly ill-founded. The District Court, when assessing the custody and contact rights, had not paid any attention to the expulsion order. There was no evidence that, had the Migration Agency or the Migration Court awaited the District Court proceedings, the outcome of the District Court proceedings would have been any different. As the applicant was not a settled migrant, his case should be viewed from the point of view of the positive obligation of the State as to whether such an obligation existed in order to enable the applicant to develop a relationship with his daughter.

47. The Government noted that, at the time of the applicant's asylum proceedings, he had not been in contact with his daughter since their separation in 2012. Instead, the daughter had formed very close ties with her foster family and had not been dependent on the applicant since their separation. Already before the Agency's decision in June 2017, the District Court had considered it obvious that it was in the daughter's best interest to grant her foster parents custody and this decision had not been appealed against. The Agency had not rejected the applicant's asylum application because of insufficient ties to his daughter but because the applicant had failed to prove his identity. Although some contact between the applicant and his daughter had taken place, all contact had ended after February 2017.

48. Considering the daughter's situation, it could not be said that denying the applicant a residence permit in Sweden was contrary to her best interests. Apart from his daughter, the applicant did not appear to have any ties to Sweden. The family life between the applicant and his daughter had been broken already before his entry into Sweden. He had been provided with an opportunity to develop a relationship with his daughter but it had not worked out the way he had hoped. The present form of contact via letters could be maintained from the applicant's country of origin. Moreover, the applicant could reapply for a residence permit based on family ties from his country of origin. It was not reasonable to oblige the State to grant the applicant a residence permit on the basis of a hope that the circumstances would change in future. Moreover, a return ban could be revoked following an overall assessment of the circumstances in an individual case.

49. The Government concluded that the domestic authorities and courts had struck a fair balance between the relevant interests involved and that the application should be declared inadmissible for being manifestly ill–founded.

2. The applicant

50. The applicant argued that he had not failed to respect the six-month time-limit. Nor had he failed to exhaust the domestic remedies. He had submitted different kinds of documents to prove his identity but the Migration Agency had not accepted those documents. His identity was made at least plausible. There were no rules about how many times an applicant needed to apply for enforcement of execution before applying to the Court. When he did so, he had not yet received his passport, which was issued on 22 December 2017. Since the kinship between the applicant and his daughter was not questioned, the Swedish authorities could have applied a lesser standard of proof and established his identity on the basis of that relationship. When the applicant had received his passport, he had had reasonable grounds not to expect a different decision from the Migration Agency to the previous decisions regarding his identity. He assumed that a new decision would have stated again that he had failed to establish his identity and that the contact visit issue had already been examined.

51. The applicant submitted that his application was not manifestly ill–founded. As he was the biological father of his daughter, who was a minor, there was a close link between them. This link did not end solely on the basis that the child was placed in a foster home and her custody was transferred to foster parents. The applicant submitted that he still maintained family ties to his daughter.

52. The applicant argued that the immigration proceedings and the measures taken by the social welfare committee violated Article 8 of the Convention. In his opinion, there had been prerequisites to grant him a residence permit despite the fact that he was considered to have failed to prove his identity. A decision not to grant him one was not proportionate to the legitimate aim pursued. The applicant had been separated from his daughter due to events beyond his control. The Swedish authorities had a positive obligation to allow him to reside in Sweden in order to enable him to develop a better relationship with his daughter. The parties had agreed to a temporary pause in contact visits since the daughter's treatment was more important than any resumption of the physical contact between her and the applicant. It had been agreed to continue the contact via letters. The goal was still to resume contact visits after her treatment was over. It could not be in the best interest of the daughter to be completely cut off from her origins. The States had an obligation to reunite parents and children.

53. The applicant agreed that, after his expulsion, he could formally reapply for a residence permit but there was a great risk of not meeting the requirement of "contact that is not limited". Moreover, a ban on entry would be imposed on him for not having left the country voluntarily. There was thus a violation of Article 8 of the Convention.

B. The Court's assessment

54. The Court first notes that the Government made an objection as to the admissibility of the application on the ground that the six-month time–limit set out in Article 35 § 1 of the Convention had not been complied with. The Court, however, considers that it need not resolve this issue as the application is, in any event, inadmissible on the basis of the Government's second objection on non-exhaustion.

55. According to the Court's case-law, while in the context of the legal machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been raised before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I, and Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004–III).

56. The Court notes that the Government argued that the applicant had failed to exhaust all effective domestic remedies since he had not provided the domestic authorities and courts with the passport which he had been issued. He should have lodged an application under Chapter 12, section 18, of the Aliens Act to invoke the new circumstance that he had now been issued a passport.

57. The applicant does not really explain why he did not submit his passport, which was issued on 22 December 2017, to the immigration authorities. He only stated that he had previously submitted different kinds of documents to prove his identity but the Migration Agency had not accepted those documents, and that he assumed that a new decision would again state that he had failed to establish his identity. When he received his passport, he had reasonable grounds not to expect any other decision from the Migration Agency to differ from the previous decisions regarding his identity.

58. The Court observes that one of the main reasons why the Migration Agency rejected, in its decision of 18 December 2015, the applicant's application for a residence permit based on family ties was that the applicant had not proved his identity, which was a legal requirement for the grant of such a permit (see paragraph 13 above). Subsequently, on 7 October 2016, the Migration Court upheld the Migration Agency's reasoning vis-à-vis the applicant's identity (see paragraph 15 above). The key element in refusing the applicant's application for a residence permit was thus the fact that he had not sufficiently proved his identity.

59. As the Government mention in their observations, the immigration authorities assumed that it would not be impossible for the applicant to obtain an Afghan passport. This assumption proved to be correct, since on 22 December 2017 the Afghan Embassy in Stockholm issued the applicant the requested passport. There was thus no need, in accordance with Swedish case-law (see paragraph 40 above), to apply a lower standard of proof regarding the applicant's identity since he came from a country where it was not difficult to obtain acceptable identity documents (compare with Abokar v. Sweden (dec.), no. 23270/16, 14 May 2019).

60. In these circumstances, it would appear natural for the applicant to raise this new fact of possessing an Afghan passport before the Swedish immigration authorities. There was no reasonable ground for the applicant to assume that the Migration Agency would again make a similar decision to its previous decisions regarding his identity. The applicant has not even submitted that the remedy under Chapter 12, sections 18 and 19, of the Aliens Act would not be effective. The previous decisions taken in his case did not bar him from lodging a new application under these provisions and invoking the fact that he had now been issued a passport. As there was a real opportunity for the Migration Agency to decide to re-examine the matter, the Court considers that the applicant should have exhausted this remedy.

61. In these circumstances, the applicant's application should be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

Sentencja

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Declares the application inadmissible.

Done in English and notified in writing on 30 January 2020.

Stephen Phillips

Georgios A. Serghides

Registrar

President