Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31042/96

by R. K.-V.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 26 June 1996, the following members being present:

MM. H. DANELIUS, President

S. TRECHSEL

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

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 11 April 1996 by

R. K.-V. against Switzerland and registered on 18 April 1996 under file

No. 31042/96;

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, born in 1975 and a citizen of former Yugoslavia,

resides at Lucerne in Switzerland. Before the Commission she is

represented by Mr M. Spescha, a lawyer practising in Zürich.

Particular circumstances of the case

The applicant's father has a permission to establish domicile

(Niederlassungsbewilligung) in the Canton of Lucerne. Upon his

request, the Aliens Police of the Canton of Lucerne granted his

daughter, the applicant, a permission to establish domicile with her

parents on 12 March 1992.

The authorities thereby relied on Section 17 para. 2 of the

Federal Act on the Residence and Domicile of Aliens (Bundesgesetz über

Aufenthalt und Niederlassung der Ausländer; see below, Relevant

domestic law).

On 9 November 1992, while in former Yugoslavia, the applicant

married her compatriot S.K. Their child, born on 5 April 1993, died

within one week.

Following these occurrences the applicant was invited to appear

before the Aliens Police where on 19 October 1993 she was asked why she

had not remained with her husband in former Yugoslavia. She replied

"I have entered Switzerland with the intention to look for employment

here and then to let my husband join me in Switzerland" ("Ich bin mit

dieser Absicht in die Schweiz eingereist, dass ich mir hier eine

Arbeitsstelle suchen werde und dann meinen zukünftigen Mann in die

Schweiz nachziehen lassen werde."). The applicant further stated that

she had known her husband for 10 years and had had a relationship with

him since 1991.

On 20 January 1994 the Aliens Police of the Canton of Lucerne

withdrew the applicant's permission to establish domicile. The Aliens

Police found that while the applicant had entered Switzerland in 1992

to join her parents, she had from the beginning had the intention to

found a family with her friend and later husband. By remaining silent

on essential facts she had therefore obtained a permission to establish

domicile on false grounds. As the applicant had not lived long in

Switzerland, and her husband lived in their home country, she could be

expected to return and lead a family life with him in former

Yugoslavia.

On 6 December 1994 the Government (Regierungsrat) of the Canton

of Lucerne dismissed the applicant's further appeal.

The applicant's administrative law appeal (Verwaltungsgerichts-

beschwerde) was dismissed by the Federal Court (Bundesgericht) on

27 November 1995.

In its decision the Court recalled that the applicant had on

19 October 1993 explained to the Aliens Police that she had entered

Switzerland with the intention of looking for employment and of letting

her husband join her. Thus, she had herself admitted that, rather than

intending to live together with her parents, she wanted as soon as

possible to found a new family with her husband. Thus, she had wanted

to use the institution of the family reunion for a purpose for which

it was not conceived. Had the Aliens Police known about this

intention, the applicant would certainly not have received a permission

to establish domicile in Switzerland.

The Court which also relied on Section 9 para. 4 of the Federal

Act on the Residence and Domicile of Aliens (Bundesgesetz über

Aufenthalt und Niederlassung der Ausländer; see below, Relevant

domestic law) further found that the applicant was not prevented from

leading her married life together with her husband in their common home

country.

Relevant domestic law

According to Section 17 para. 2 of the Federal Act on the

Residence and Domicile of Aliens children under 18 years are entitled

to be included in the permission to establish domicile of their parents

if they live together with the parents.

Section 9 para. 4 of the Act provides that the permission to

establish domicile will be withdrawn if it was obtained by means of

false indications or by concealing relevant facts.

Section 8 para. 4 of the Ordinance on this Act (Vollzugsver-

ordnung) provides that there will be no such entitlement if the

foreigner residing in Switzerland has concealed the presence of a

family member during the proceedings (wenn der Ausländer das Vorhanden-

sein eines Familienglieds im Bewilligungsverfahren verschwiegen hat).

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that

her permission to establish domicile in Switzerland has been withdrawn.

She complains in particular of the conclusion of the Swiss authorities

that a girl of 16 years and a half will lose her right to live with her

parents if the family reunion at least indirectly had the purpose that

she herself would wish to found a family in the not too distant future

and would wish her future husband to join her in Switzerland.

The applicant submits in particular that the measure was not "in

accordance with the law" within the meaning of Article 8 para. 2 of the

Convention. Thus, none of the grounds stated in Section 8 para. 4 of

the Ordinance applied to her or her parents. Rather, the conduct of

which they were accused concerned internal facts, namely prospects of

the future.

The applicant further complains that the withdrawal of her

permission to establish domicile was not necessary in a democratic

society in that it was disproportionate and it did not serve the

interests of public order.

2. Under Article 14 taken together with Articles 8 and 12 of the

Convention the applicant complains of discrimination on account of her

sex and her intention to marry. Had she been a homosexual she would

not even have considered marriage and she could not then have had the

detrimental intentions which the Swiss authorities now lay against her.

3. Under Article 6 of the Convention the applicant complains of the

manner in which the Aliens Police questioned her.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention that her permission to establish domicile in Switzerland was

withdrawn when it transpired that she had entered Switzerland with the

intention eventually to live there with her then prospective husband.

Article 8 (Art. 8) of the Convention states, insofar as relevant:

"1. Everyone has the right to respect for his ... family life

...

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.

Nevertheless, the expulsion of a person from a country where close

members of his family are living may amount to an infringement of the

right to respect for family life guaranteed in Article 8 para. 1

(Art. 8-1) of the Convention (see Eur. Court H.R., Moustaquim judgment

of 18 February 1991, Series A, no. 193, p. 18, para. 36; No. 9203/80,

Dec. 5.5.81, D.R. 24, p. 239).

The Commission has therefore examined whether in the present case

the refusal of the Swiss authorities to grant the applicant the

permission to establish domicile in Switzerland will separate her from

close members of her family and thus infringe her right to respect for

family life within the meaning of Article 8 (Art. 8) of the Convention.

In examining such cases the Commission must consider whether a

sufficient link exists between the relatives concerned as to give rise

to the protection of "family life" within the meaning of Article 8

(Art. 8) of the Convention. Generally, this involves married couples,

on the one hand, and, on the other, cohabiting dependents such as

parents, spouses and their dependent, minor children. Whether it

extends to other relationships depends on the circumstances of the

particular case (see No. 10375/83, Dec. 10.12.84, D.R. 40, p. 196).

The Commission has therefore examined the applicant's links with

her parents, on the one hand, and with her husband, on the other.

As regards the applicant's links with her parents, the Commission

notes that the applicant is meanwhile 20 years old, and there is no

evidence of any dependence on her parents, involving more than the

normal, emotional ties. Before the Commission the applicant has not

referred to any other circumstances which would indicate particularly

close links with her family residing in Switzerland.

As regards the links with her husband, the Commission notes the

applicant's declared intention of living her marriage together with her

husband. The latter lives in former Yugoslavia. In the Commission's

opinion, there is nothing to prevent the applicant from living her

marriage together with her husband in their home country.

The applicant has not, therefore, sufficiently made out an

interference with her rights under Article 8 para. 1 (Art. 8-1) of the

Convention. 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. Under Article 14 taken together with Articles 8 and 12

(Art. 14+8+12) of the Convention the applicant complains of

discrimination on account of her sex and her intention to marry.

However, the Commission has just found that the applicant has not

demonstrated any particularly close links with her parents in

Switzerland and that she can lead her family life in former Yugoslavia.

It follows that no separate issue arises under Article 14 taken

together with Articles 8 and 12 (Art. 14+8+12) of the Convention. This

part of the application is therefore manifestly ill-founded within the

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

3. Under Article 6 (Art. 6) of the Convention the applicant

complains of the manner in which the Aliens Police questioned her.

However, the Commission recalls that the decision whether an alien

should be allowed to stay in a country or be expelled does not involve

either the determination of the alien's civil rights or obligations,

or a criminal charge, within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention (see No. 8118/77, Dec. 19.3.81, D.R. 25,

p. 105). The remainder of the application is therefore incompatible

ratione materiae with the provisions of the Convention, pursuant to

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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R.K.-V. v. SWITZERLAND

R.K.-V. v. SWITZERLAND

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