Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 36287/97

by Nguanga MOMIQUE-POLA

against Sweden

The European Commission of Human Rights sitting in private on

10 July 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms; Having regard to the

application introduced on 5 June 1996 by Nguanga MOMIQUE-POLA against

Sweden and registered on 30 May 1997 under file No. 36287/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a national of the Democratic Republic of Congo

(formerly Zaire), born in 1940 and resident at Älvsjö. She is

represented by Mr Per Stadig, a lawyer in Stockholm.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant entered Sweden in December 1994 and requested

asylum. Later she withdrew this request and instead asked for a

residence permit on account of her ties to her only remaining child,

her daughter M, born in 1965. M had been living in Sweden since 1989

by virtue of a permanent residence permit and had children of her own.

The applicant had allegedly cared for those children until March 1994,

when M had fetched them from Zaire (presently the Democratic Republic

of Congo). The applicant's husband had allegedly died in 1990. Her

three further children had either died or disappeared. In the Swedish

investigation of her claims she gave contradictory information on

various points regarding her children and other matters. Her counsel

claimed that she was illiterate and had only a very feeble idea of time

and place.

On 12 May 1995 the National Immigration Board (Statens

invandrarverk) rejected the request for a residence permit, ordered the

applicant's expulsion and prohibited her from returning to Sweden

during a period of two years. The Board noted that a residence permit

should, save for exceptional reasons, be sought before the alien's

arrival in Sweden. M was over 20 years of age and had founded her own

family. The two therefore no longer belonged to the same nuclear

family. The applicant could thus not be granted a residence permit for

family reunification purposes, nor were there any other exceptional

reasons for granting a residence permit in response to a request lodged

in Sweden.

The applicant appealed, stating, inter alia, that she was

illiterate, suffering from angina pectoris and other illnesses. She

would therefore be unable to cope with a return to Zaire. She adduced

copies of certain patient records and requested to be informed if

further medical evidence was considered necessary.

On 30 May 1996 the Aliens Appeals Board (Utlänningsnämnden)

rejected the appeal. It noted that M had previously referred to another

woman as her mother. The names of M's children and siblings did not

correspond to those stated by the applicant. Considering the

contradictory information the Aliens Appeals Board concluded that the

alleged family relationship between the applicant and M had not been

credibly substantiated. Allowances were made for the applicant's

alleged illiteracy and her feeble idea of time and place.

In the summer of 1996 M travelled to Zaire in order to find

someone who could care for the applicant. Due to the fighting in the

country and an illness the daughter could not return to Sweden until

February 1997, not having found any carer for the applicant.

In March 1997 the applicant lodged a new application with the

Aliens Appeals Board and claimed that due to an amendment to the Aliens

Act (utlänningslag 1989:529) she now had the right to obtain a

residence permit even if she had sought the permit after having entered

Sweden. Furthermore, in the appeal proceedings in 1996 she had not been

afforded an opportunity to prove the veracity of information which the

Aliens Appeals Board eventually concluded was not credible. For

instance, as an illiterate the applicant had stated the nicknames of

M's children and not their official names as referred to by M.

On 14 April 1997 the Aliens Appeals Board rejected the fresh

application, finding no essential new facts. The amendment to the

Aliens Act implied that the alien could, in some situations, be granted

a residence permit on account of a relationship with close relatives

who were already residing in Sweden even if the alien had sought the

permit only after entering Sweden. According to the travaux

préparatoires to the amendment, the alien and the relatives should have

lived together immediately before the relatives' move to Sweden. The

request for a family reunification was to be made relatively quickly

after the relatives settled in Sweden. The Aliens Appeals Board noted

that the applicant's alleged daughter had come to Sweden on

22 December 1989. She had received a residence permit on 2 July 1992.

The applicant had not arrived in Sweden until 27 December 1994 and

their alleged relationship was thus not a reason to grant the applicant

a residence permit on the basis of the amended legislation.

COMPLAINTS

1. Under Article 8 of the Convention the applicant originally

complained that her expulsion would fail to respect her family life,

as she would be separated from her daughter and grandchildren in

Sweden. She also referred to her age and state of health.

In her further complaint of 17 June 1998 the applicant stated

that the authorities had begun to plan the enforcement of the expulsion

order. Such enforcement would violate Article 8 in view of the current

precarious circumstances in the receiving State. The applicant

furthermore submitted that in the receiving country she would be unable

to obtain treatment of medication against her hepatitis. Finally, the

threat of enforcement is allegedly causing her great distress.

2. The applicant complains further that she did not get a fair and

public hearing within a reasonable time by an independent and impartial

tribunal established by law. The question to be determined concerned

family members' right to live together, this being a "civil right"

within the meaning of Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 June 1996. The applicant

requested the Commission to indicate to the Swedish Government that it

was desirable in the interests of the parties and the proper conduct

of the proceedings before the Commission not to expel the applicant to

Zaire until the Commission had been able to examine the application.

On 4 July 1996 the Commission decided not to indicate to the

Government, pursuant to Rule 36 of the Commission's Rules of Procedure,

the measure suggested by the applicant.

The application was registered on 30 May 1997.

On 17 June 1998 the applicant again requested the Commission to

indicate to the Swedish Government that it was desirable in

the interests of the parties and the proper conduct of the proceedings

before the Commission not to expel the applicant to the Democratic

Republic of Congo (formerly Zaire) until the Commission had been able

to examine the application.

On 10 July 1998 the Commission decided not to indicate to the

Government, pursuant to Rule 36 of the Commission's Rules of Procedure,

the measure suggested by the applicant.

THE LAW

1. The applicant complains that her expulsion would fail to respect

her family life, as she would be separated from her daughter and

grandchildren. She also refers to the current precarious circumstances

in the receiving State and to her state of health. She invokes

Article 8 (Art. 8) of the Convention which provides 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."

The Commission recalls that as a matter of well-established

international law and subject to its treaty obligations, a State has

the right to control the entry, residence and expulsion of

non-nationals (see, e.g., the Abdulaziz, Cabales and Balkandali v. the

United Kingdom judgment of 28 May 1985, Series A no. 94, p. 34,

para. 67). It follows that Article 8 (Art. 8) does not guarantee to a

non-national a right to enter or remain in a particular country. Nor

can Article 8 (Art. 8) be considered to impose on a State a general

obligation to respect immigrants' choice of the country of their

matrimonial residence and to authorise family reunification in its

territory. Consequently, this provision does not guarantee a right to

choose the most suitable place to develop family life. In order to

establish the scope of the State's obligations the facts of the case

must be considered (see, e.g., Eur. Court HR, Ahmut v. the Netherlands

judgment of 28 November 1996, Reports of Judgments and Decisions 1996-

VI, p. 2033, paras. 67, 71; Gül v. Switzerland judgment of 19 February

1996, Reports of Judgments and Decisions 1996-I, pp. 187-188,

para. 38). An issue may arise under Article 8 (Art. 8) if a person is

excluded, or removed, from a country where his close relatives reside

or have the right to reside (see eg. No. 7816/77, Dec. 19.5.77, D.R.

9, p. 219; No. 9088/80, Dec. 6.3.82, D.R. 28, p. 160; No. 9285/81, Dec.

8.7.82, D.R. 29, p. 205).

While it is true that Article 8 (Art. 8) contains no explicit

procedural requirements, the Convention organs are entitled to have

regard to the decision-making process on the domestic level in order

to determine whether it has been conducted in a manner which, in all

the circumstances, is fair and affords due respect for the interests

protected by Article 8 (Art. 8) (see, e.g., B. v. the United Kingdom

judgment of 8 July 1987, Series A no. 121-B, pp. 72-73, para. 63;

McMichael v. the United Kingdom judgment of 24 February 1995, Series

A no. 307-B, p. 57, para. 91). In the present case it has not been

argued that the applicant's expulsion would not be "in accordance with

the law" or that it would not pursue a legitimate aim. The necessity

criterion in Article 8 para. 2 (Art. 8-2) implies the existence of a

pressing social need and, in particular, requires that the measure must

be proportionate to the legitimate aims pursued. It has to be

determined whether a fair balance has been struck between the

applicant's right to respect for her alleged family life and the

legitimate interests of the State which furthermore must be afforded

a certain margin of appreciation (see, e.g., Eur. Court HR, Boughanemi

v. France judgment of 24 April 1996, Reports of Judgments and Decisions

1996-II, pp. 609-610, paras. 41-42).

The Commission notes that the expulsion order concerning the

applicant has not been quashed but appears to have been left unenforced

since May 1996. Assuming that the order were now to be enforced, the

Commission recalls that it was found in the domestic proceedings that

the applicant, though represented by counsel, had not adduced evidence

capable of convincing the Swedish authorities that she was M's mother.

The Commission sees no reason to question that finding. At any rate,

it has not been argued that the applicant's alleged daughter and

grandchildren would be unable to follow her to the applicant's country

of origin which appears to be the same as theirs. In the overall

circumstances of the case the Commission therefore finds that the

Swedish authorities were reasonably entitled to refuse her a residence

permit.

As to the decision-making process, the Commission notes that in

her appeal the applicant, through her counsel, requested to be informed

if further medical evidence was considered necessary. There is no

indication that the applicant was prevented from adducing, throughout

the domestic proceedings, whatever evidence she felt it necessary to

adduce. The procedural guarantee inherent in Article 8 (Art. 8) cannot

be interpreted so as to render it compulsory for decision-making

authorities to afford a party an opportunity to lodge further

submissions if the evidence initially adduced is not considered

sufficient. For the purposes of Article 8 (Art. 8) the applicant was,

accordingly, sufficiently involved in the decision-making process.

In sum, this complaint does not disclose any lack of respect for

the applicant's family life within the meaning of Article 8

(Art. 8) .

It follows that this part of the application is manifestly

ill-founded with the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains that she did not get a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law. The question to be determined concerned

family members' right to live together, this being a "civil right"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention,

which, in relevant parts, reads as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing by

an independent and impartial tribunal established by law.

..."

The Commission has previously held that a decision as to whether

an alien should be allowed to stay in a country does not involve any

determination of his or her "civil rights" (see, e.g., No 12122/86,

Dec. 16.10.86, D.R. 50, p. 268 with further reference). In the present

case the proceedings complained of concerned precisely the applicant's

right to remain in Sweden. In these circumstances the proceedings

complained of did not involve a determination of the applicant's "civil

rights" within the meaning of Article 6 para. 1 (Art. 6-1). This

provision is therefore inapplicable in the instant case.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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MOMIQUE-POLA v. SWEDEN

MOMIQUE-POLA v. SWEDEN

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