Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33758/96

by Hanna ESHAK

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 September 1996

by Hanna Eshak against Sweden and registered on 13 November 1996 under

file No. 33758/96;

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 Syrian citizen born in 1967. Before the

Commission he is represented by his lawyer, Mr Michel Barmoro,

Södertälje.

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

summarised as follows.

On 10 July 1994 the applicant married M.M., a Swedish citizen

resident in Sweden. Their daughter, S, was born on 9 April 1995. On

10 April 1995 the applicant was granted a temporary permit to reside

in Sweden until 10 October 1995 on account of his family ties. He

arrived in Sweden on 20 April 1995 and settled with his wife and

daughter.

On 20 May 1995 the applicant and M.M. separated, following which

M.M. did not allow the applicant to see S.

By a provisional decision of 7 September 1995, the District Court

(tingsrätten) of Motala granted M.M. custody of S and ordered the

social authorities to investigate the question of access.

On 15 December 1995 the National Immigration Board (Statens

invandrarverk) rejected the applicant's request, lodged in August 1995,

for an extension of his residence permit. The Board considered that

he no longer had family ties which could constitute a reason for

allowing him to reside in Sweden. The Board accordingly ordered his

expulsion and further issued a prohibition on return valid for two

years.

The applicant and M.M. were divorced on 7 February 1996.

After the social authorities had presented their report on the

access question in April 1996, the District Court, by judgment of

31 May 1996, awarded the applicant access to S every Monday as from

10 June 1996 between 10 and 12 a.m. in the presence of a so-called

contact person (kontaktperson) appointed by the social authorities.

Custody remained with M.M. The court noted that it had not yet been

decided whether the applicant would be allowed to remain in Sweden and

recalled that he or M.M. could request that access be regulated in a

different manner when that decision had been taken. No appeal was made

against the judgment.

Following the social authorities' appointment of a contact

person, the applicant met S on two or three occasions in August and

September 1996, starting on 12 August. Thereafter, M.M. allegedly

refused to cooperate and, as a result, no further meetings took place.

On 9 September 1996 the Aliens Appeals Board (Utlänningsnämnden)

upheld the Immigration Board's decision save for the prohibition on

return, which was revoked due to the circumstances of the case. The

Appeals Board considered that the applicant's relationship with his

daughter, whom he had not seen between 20 May 1995 and 12 August 1996,

did not constitute a sufficient ground for granting him a residence

permit.

On 15 November 1996 the applicant, using a false Swedish

passport, left Sweden for the United Kingdom with the intention of

travelling further to Canada from where he planned to apply for a

permit to reside in Sweden. However, he was returned to Sweden by the

United Kingdom authorities.

Upon arrival in Sweden, the applicant lodged a new application

for a residence permit. On 18 November 1996 the National Immigration

Board stayed the enforcement of the expulsion order. It referred the

new application to the Aliens Appeals Board.

Before the Aliens Appeals Board, the applicant stated that he had

been living with a woman, K.Z., in Sweden since May 1996 and that they

had married on 27 April 1997. He further referred to his daughter and

stated that he intended to apply to the courts for regular access to

her. He considered that the award of such access depended on his being

granted a residence permit. He further claimed that the expulsion

order, in practice, prevented him from seeing his daughter.

On 6 May 1997 the Aliens Appeals Board rejected the new

application, finding that the applicant's relationships with his

daughter and his new wife were not sufficient reasons for granting him

a residence permit. Before taking its decision, the Board had

investigated the relationship between the applicant and his daughter

and had found that they had only met on a few occasions for a short

period of time. The meetings had not worked out well. According to

a certificate issued by a chief physician, it would be very unfortunate

for the daughter if the applicant was given a right of access to her,

as there was a risk of her sustaining permanent mental injury. Given

the opportunity to comment on the Board's investigation, the applicant

had said that, at the last meeting between him and his daughter, she

had been crying as her mother had not been present. However, the

applicant had further stated that the chief physician was M.M.'s cousin

and that his statements appeared to be highly exaggerated.

The applicant is presently in hiding in Sweden. He claims that

he cannot meet his daughter as he risks being expelled.

COMPLAINTS

1. Under Article 8 of the Convention, the applicant claims that his

expulsion would fail to respect his family life, as he would be

separated from his daughter.

2. Without invoking any further Articles, the applicant also

contends that he does not have recourse to any effective remedies.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 September 1996. The

applicant requested the Commission to petition the respondent

Government to stay his expulsion.

On 23 September 1996 the President of 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.

Following further correspondence with the applicant, the

application was registered on 13 November 1996.

THE LAW

1. The applicant claims that his expulsion would fail to respect his

family life, as he would be separated from his daughter. He maintains

that he has shown a strong desire to see his daughter but that their

meetings have been obstructed by M.M. He contends that he does not

have sufficient means to travel to Sweden to see the daughter.

Further, M.M.'s attempts at obstructing his access to the daughter

could, in practice, prevent his obtaining an entry visa for Sweden.

The applicant invokes Article 8 (Art. 8) of the Convention which

provides the following:

"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 no right of an alien to enter or to

reside in a particular country is as such guaranteed by the Convention.

However, the expulsion of a person from a country in which close

members of his family live may amount to an unjustified interference

with his right to respect for his family life as guaranteed by

Article 8 (Art. 8) of the Convention (cf., e.g., Eur. Court HR,

Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193,

pp. 19-20, paras. 43-46).

Noting that the applicant lived with his daughter for one month

before he and M.M. separated in May 1995 and that he met the daughter

on a few occasions in August and September 1996, the Commission

considers that the applicant's expulsion could be considered as an

interference with his right to respect for his family life under

Article 8 para. 1 (Art. 8-1). It is therefore necessary to ascertain

whether the expulsion would satisfy the conditions of Article 8 para.

2 (Art. 8-2).

It has not been contested that the expulsion order was issued "in

accordance with the law". The Commission considers that the

enforcement of the order would pursue a legitimate aim under Article 8

para. 2 (Art. 8-2), namely the protection of the economic well-being

of the country.

As regards the question whether the intended expulsion is

"necessary in a democratic society", the Commission recalls that the

Aliens Appeals Board investigated the relationship between the

applicant and his daughter. The applicant did not see his daughter for

more than a year before a few meetings took place in August and

September 1996. It appears that these meetings did not work out well.

Thereafter, the applicant has not met his daughter. Thus,

notwithstanding the alleged attempts by M.M. to obstruct the

applicant's access to his daughter, the Commission considers that the

ties between the applicant and the daughter are rather tenuous.

Apparently, the few meetings that have taken place have been upsetting

for the daughter.

In view of the above and taking into account the margin of

appreciation left to the Contracting States, the Commission concludes

that the Swedish authorities have not failed to fulfil their obligation

to strike a fair balance between the relevant interests. Thus, the

interference with the applicant's right to respect for his family life

is justified under Article 8 para. 2 (Art. 8-2) of the Convention in

that it can reasonably be considered necessary in the interests of the

economic well-being of the country.

It follows that this part of the application is manifestly

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

Convention.

2. The applicant also contends that he does not have recourse to any

effective remedies. The Commission considers that this complaint falls

to be considered under Article 13 (Art. 13) of the Convention which

reads as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

Having regard to its findings under Article 8 (Art. 8) of the

Convention, the Commission considers that the applicant does not have

an "arguable claim" of a violation of the Convention. In any event,

the applicant's family ties were considered by the Swedish authorities

in connection with the expulsion proceedings. The applicant thus did

have an effective remedy before a national authority in relation to his

complaint under Article 8 (Art. 8). Article 13 (Art. 13) cannot be

understood as guaranteeing a successful outcome of the remedy in

question.

It follows that this part of the application is also manifestly

ill-founded 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.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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ESHAK v. SWEDEN

ESHAK v. SWEDEN