Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27056/95

by M.K.A. and Others

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 21 May 1996, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

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 19 January 1995

by M.K.A and Others against Sweden and registered on 20 april 1995

under file No. 27056/95;

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

of Procedure of the Commission;

Having regard to the information submitted by the respondent

Government on 28 March 1996 and the comments in reply submitted by the

applicants on 30 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The first applicant is an Algerian citizen, born in 1939. The

second applicant is his wife who is a Lebanese citizen, born in 1945.

The third and fourth applicants are their children CH and I. They are

both Algerian citizens, born in 1972 and 1973, respectively. At present

the family is in hiding in Sweden. Before the Commission they are

represented by Mr. Nicolas Busch.

The first applicant was born in the Syrian town of Homs. His

father came from Algeria - at that time under French jurisdiction - and

was stationed in Syria as a professional soldier of the French army.

When Syria and Lebanon gained independence, the family decided

to settle in Lebanon and moved to Beirut. The first applicant grew up

in Beirut. He has no family or friends in Algeria and has never visited

this country.

When Algeria became independent the first applicant,

theoretically had the choice to opt either for French or Algerian

citizenship. He wished to opt for French citizenship but lacked the

means to travel to France as required. Thus, he was registered as an

Algerian citizen. In 1965 the first and second applicants married. The

four children of the couple were born in 1966, 1968, 1972 and 1973. The

third applicant, CH, was mentally and physically handicapped from

birth. The eldest daughter lives in Sweden.

In 1980 the first applicant accepted an offer of employment by

the Algerian embassy in Beirut. After some time he became the embassy's

telex operator. In this function he had access to confidential

information.

In 1984 the ambassador confronted the first applicant with

accusations made by embassy personnel according to which he had leaked

secret information from the embassy to the PLO in Beirut. He firmly

denied having handed out information and the ambassador tried to put

a quiet end to the affair by simply dismissing the first applicant

without notice.

He found a new job in Beirut and did not hear from the Algerian

embassy again until 1989, when a Syrian army officer warned him that

the Algerian embassy had requested the Lebanese authorities to arrest

him. The Lebanese authorities had passed on the request to the Syrian

forces that exercised police control in Beirut at that time.

A new Algerian ambassador had been appointed. He took the view

that the affair concerning the first applicant's dismissal had been

dealt with in a negligent manner and wanted to open an investigation

of the case.

Fearing persecution both by the embassy and by Syrian security

forces the first applicant left Beirut at once and went into hiding in

the Palestinian camp Ain Al Halwa near Saida, to which the Syrian

forces had no access. His wife moved to relatives in Beirut together

with the handicapped daughter CH, while the two other children C and

I moved to his brother in a Beirut suburban area. The Syrian

forces soon discovered his brother's whereabouts. The Amal militia

repeatedly searched the house of the first applicant's brother and

questioned the applicant's children on the whereabouts of their father.

They submit that the visits were accompanied by threats of physical

maltreatment.

The first applicant feared for his children's security and

decided to seek refuge with his family in Sweden, where his eldest

daughter was already living. He was unable to finance or organise the

flight of his whole family at the same time. Therefore, he decided that

his children C and I should leave the country first. He therefore

provided C and I with false Lebanese identity documents and instructed

them to declare themselves as Lebanese war refugees with the Swedish

authorities, pending his own arrival in Sweden.

The two children entered Sweden and applied for asylum in

January 1990 under their false Lebanese identities. Their mother, the

second applicant, followed the children in October 1990. She travelled

under a false identity with a false Lebanese passport including a

counterfeited Swedish visa.

The first applicant and the third applicant followed in

December 1990. They left Lebanon by ship from the port of Saida for

Cyprus. From Cyprus they continued the journey to Sweden. Both entered

Sweden legally with their Algerian passports on 1 December 1990 and

applied for asylum under their correct identities.

Upon the first applicant's arrival in Sweden the true identity

of the whole family was established. In their requests for asylum the

first applicant referred to his problems with the Algerian embassy in

Lebanon. The second applicant referred to the general situation in

Lebanon and submitted that she wanted to stay with her children, who

maintain that they had been harassed by the Amal militia in Lebanon.

On 21 March 1991 the National Immigration Authority (Statens

Invandrarverk), the SIV, rejected the application. In the decision the

SIV stated inter alia that the first applicant's fears appeared to be

exaggerated since the incidents referred to dated back several years

and since he had remained in Lebanon thereafter without any particular

problems. The decision was accompanied by an expulsion order stating

that the applicants were to be expelled to Lebanon or Algeria if it

should prove impossible to return them to the country from which they

came immediately prior to their entry into Sweden.

The SIV's decision was upheld by the Government (Regeringsbeslut)

on 24 October 1991.

New applications were rejected by the SIV on 28 November 1991,

11 March and 2 June 1992 and 27 December 1993. The daughter C was,

however, granted a permanent residence permit due to her marriage to

a Swedish citizen and the birth of their first child.

On 13 May 1994 the applicants applied for asylum once more. They

referred in particular to CH's handicap and the enforcement problems,

the second applicant being a Lebanese citizen and the others Algerian.

Rejecting the application on 5 October 1994 the SIV stated inter

alia as follows:

(Translation)

"(The second applicant) is a Lebanese citizen. (The first,

third and fourth applicants) are Algerian citizens. (The

first applicant), who was born in Syria, has lived in

Lebanon for approximately fifty years and is married to a

Lebanese citizen since 1965. The children were born in

Lebanon and have always lived there. In these circumstances

the SIV considers that they will be received in Lebanon.

It remains to examine whether (the third applicant's)

situation is such that particular grounds of a humanitarian

character are at hand. The travaux préparatoires exemplify

'grounds of a humanitarian character' as a risk that the

alien will commit suicide or that a rejection otherwise

would seriously endanger the alien's life or health. The

SIV considers that the humanitarian grounds concerning (the

third applicant) have become stronger since the

Government's decision and during the period the family has

been in hiding. However, the investigations in the case

give no reason to believe that these circumstances, or a

deportation as such, would lead to consequences of such a

serious nature which is a precondition for granting (the

applicants' request)."

On 6 December 1994 the applicants filed a new application for

permanent residence permits on humanitarian grounds with the Aliens

Appeals Board (Utlänningsnämnden) which, following a change in the

Aliens Act had to consider new applications lodged after 1 July 1994.

The applicants argued that the SIV's most recent decision was incorrect

on both material and formal grounds. They held that the matter

regarding the country of return should have been considered anew

against the background of the new facts at hand regarding the third

applicant's handicap. They also claimed that the SIV should have

re-examined the question of the country of expulsion in the light of

the above new facts and under Article 8 of the European Convention on

Human Rights and Article 9 of the UN Convention on the Rights of the

Child.

It was further asserted that the expulsion of the family was most

likely to result in the split-up of the family, in spite of the SIV's

allegation that the family would be accepted in Lebanon.

The Aliens Appeals Board rejected the application on

13 October 1994. Noting that the SIV had rejected five previous

applications the Board found that it did not contain any new relevant

information.

The Government have informed the Commission that at present there

is, pursuant to Chapter 8 section 15 subsection 1 of the Aliens Act,

no decision on expulsion concerning the applicants which can be

lawfully enforced as more than four years have passed since the

expulsion order gained legal force. Furthermore, the directive for the

enforcement was made in accordance with the principal rules on

enforcement set out in Chapter 8 section 5 of the Aliens Act which

implies that the applicant family as a whole would be expelled to

either Lebanon or Algeria. To separate a family under the present

conditions would be contrary to Swedish practice in expulsion cases.The

applicants contend that the above information is incorrect. They

maintain that the theoretical possibility of filing a new application

for a residence permit would automatically result in another rejection

leaving them in the same situation as before. Furthermore, they

maintain that the Government's information as to the actual enforcement

is a mere assertion.

COMPLAINTS

The applicants invoke Article 8 of the Convention. They maintain

that the family will be split up in the event of expulsion as the

Swedish authorities have never attempted to examine whether an

expulsion of all family members to either Lebanon or Algeria could

actually be carried out. If the expulsion order is executed, the

applicants will no longer be united as a family since the mother would

have to live in Lebanon, whereas the father and the children would have

to live in Algeria.

An expulsion to Algeria would furthermore amount to a personal

catastrophe, in particular for the third applicant. She would find

herself separated from her mother, whose daily care she depends on and

in a country torn by civil war, where her family has no relatives or

any other social ties. In this respect, it must be considered that,

despite her adult age, her mental state is comparable to that of a

child aged 5.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 January 1995.

On 25 January 1995 the President of the Commission decided not

to take any measure pursuant to Rule 36 of the Commission's Rules of

Procedure.

On 20 April 1995 the application was registered.

On 28 February 1996 the Commission (Second Chamber) decided to

obtain certain information pursuant to Rule 48 para. 2 (a) of the Rules

of Procedure.

The Government provided this information on 28 March 1996. The

applicants' comments in reply were submitted on 30 April 1996.

THE LAW

The applicants complain that their expulsion from Sweden would

be contrary to Article 8 (Art. 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."

The Commission recalls that the Convention does not guarantee a

right to enter or reside in a particular country (cf. for example

No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239). However, the exclusion of

a person from a country may in certain circumstances raise an issue

under Article 8 (Art. 8) of the Convention in view of the right to

respect for family life ensured by this provision (cf. for example Eur.

Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985,

Series A no. 94, p. 34, para. 67, Berrehab judgment of 21 June 1988,

Series A no. 138, pp. 15-16, paras. 28-29 and Moustaquim judgment of

18 February 1991, Series A no. 193, p. 19, para. 43).

The applicants maintain that in the event of an expulsion the

family would be split up since the second applicant is a Lebanese

citizen whereas the other applicants are Algerian citizens and they

would be therefore sent to Lebanon and Algeria respectively. Such a

separation would amount to a personal catastrophe, in particular for

the third applicant who is dependent on her mother's care due to her

handicap.

The Commission considers that it can be left open whether there

is at present a decision on expulsion which can be lawfully enforced

in respect of the applicants. From the information submitted by the

Government it follows that should an expulsion be ordered and enforced

all the applicants would be returned together either to Lebanon or

Algeria. Such a measure would not in the Commission's view infringe

the applicants' right to respect for their family life. Accordingly,

the Commission finds that the present case does not disclose any

appearance of a violation of Article 8 (Art. 8) of the Convention.

It follows that the application is 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.

Secretary to Acting President of

the Second Chamber the Second Chamber

(M.-T. SCHOEPFER) (G.H. THUNE)

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M.K.A. AND OTHERS v. SWEDEN

M.K.A. AND OTHERS v. SWEDEN

LEXI