Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25783/94

by Metin and Nurdine ÖZKARAN

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, 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 16 August 1994 by

Metin and Nurdine Özkaran against Germany and registered on

25 November 1995 under file No. 25783/94;

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 facts, as they have been submitted by the applicants, may be

summarised as follows.

The first applicant, born in 1974, is a Turkish national who

joined his parents in Germany in August 1988 and has an unlimited

residence permit. He is residing in Erlenbach. In August 1991 he

married in Turkey the second applicant, a Turkish national born in

1976. In the proceedings before the Commission they are represented

by Mr. H.H. Heldmann, a lawyer practising in Frankfurt/Main.

On 5 January 1994 the Miltenberg County Administration

(Landratsamt), acting as Aliens Office (Ausländerbehörde), dismissed

the second applicant's request for a residence permit and ordered her

to leave the territory of the Federal Republic of Germany. The County

Administration also ordered her expulsion in case that she should not

leave Germany as ordered.

In its decision, the County Administration noted the second

applicant's submissions that she had come to Germany in August 1993

with a three months' visa for visiting purposes. The Office, referring

to the relevant provisions of the Aliens' Act, found that the mere

reason of not having entered the territory with the visa for the

purpose of family unification would justify the refusal of her request

for a residence permit. In any event, there were no special

circumstances requiring that she be granted residence permit. In

particular, the applicants' marriage had been concluded in August 1991

and thus a long time before the second applicant's arrival in Germany.

Moreover, she had failed to show that the health situation of her

mother-in-law necessitated her presence in Germany, the medical

certificate in this respect being rather vague. Finally, the first

applicant had not met the condition for family unification of residence

in Germany of at least eight years, and the applicants had not

submitted that they had a child or that the second applicant was

pregnant. In this respect, the Office referred to the case-law of the

Federal Constitutional Court (Bundesverfassungsgericht), according to

which the condition of an eight years term of residence could not be

objected to under constitutional law, as the general interest in

permitting family unification only on the secure basis of an

integration of one of the foreigners in Germany outweighed the

individual interests.

The applicants, represented by Mr. Heldmann, lodged an

administrative appeal (Widerspruch) and applied with the Würzburg

Administrative Court (Verwaltungsgericht) for a stay of execution of

the decision ordering the second applicant to leave Germany and the

expulsion order.

On 16 February 1994 the Würzburg Administrative Court dismissed

the applicants' request for a stay of execution. The Administrative

Court found that the request was inadmissible to the extent that it had

been lodged by the first applicant, who was not the addressee of the

contested decisions and only indirectly concerned. As regards the

second applicant, the Administrative Court noted that she had entered

the territory of Germany with a visa for visiting purposes, although

she had intended to join her husband for more than three months. Her

entry in Germany had thus been illegal. In any event, she had no right

to a residence permit for any of the special reasons laid down in the

Regulations regarding the Aliens Act. In this respect the

Administrative Court confirmed in detail the findings of the Miltenberg

County Administration. The Court finally considered that the second

applicant had no right under European community law to join her husband

in Germany.

On 15 March 1994 the Bavarian Administrative Court of Appeal

(Verwaltungsgerichtshof) dismissed the applicants' appeal (Beschwerde).

On 9 May 1994 the Federal Constitutional Court refused to admit

the applicants' constitutional complaint (Verfassungsbeschwerde).

The main proceedings are apparently still pending.

COMPLAINTS

The applicants complain under Article 8 of the Convention about

the decision of the Miltenberg County Administration of 5 January 1994

dismissing the second applicant's request for a residence permit. The

applicants submit inter alia that the second applicant is entitled to

join her husband under European community law.

THE LAW

The applicants complain that the decision of the Miltenberg

County Administration of 5 January 1994 dismissing the second

applicant's request for a residence permit amounts to a violation of

their right to respect for their family life as guaranteed by Article 8

(Art. 8) of the Convention.

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

"1. Everyone has the right to respect for his private and

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 ... the economic well-being of the country, for the prevention

of disorder or crime, ... "

The Commission notes that the applicants lodged an administrative

appeal against the decision of 5 January 1994, and subsequently

exhausted remedies in court proceedings with a view to obtaining a stay

of execution. In these proceedings the administrative court, in a

summary nature, considered the second applicant's submissions regarding

her request for a residence permit. It does not appear that the second

applicant also exhausted the remedies available to her in the main

proceedings regarding the decision in question. The question,

therefore, arises whether the applicant exhausted domestic remedies,

as required by Article 26 (Art. 26) of the Convention. However, this

question can be left open as the application is anyway manifestly ill-

founded for the following reasons.

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 refusal of entry, or 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) (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 finds that the decision refusing the second

applicant's request for a residence permit, filed while she was staying

with the first applicant in Germany, and ordering her to leave Germany

interferes with the applicants' right to respect for their family life

within the meaning of Article 8 para. 1 (Art. 8-1). Such interference

is in breach of Article 8, unless it is justified under Article 8

para. 2 (Art. 8-2) of the Convention.

As regards the lawfulness of the interference, the Commission

observes that the German authorities, when refusing the second

applicant's request for a residence permit and ordering her to leave

Germany, relied on the relevant provisions of the German Aliens Act.

The authorities also considered that under European Community law the

second applicant had no right to join the first applicant in Germany.

The applicants' arguments as to the applicability and interpretation

of the said rules do not relate to any non-observance of the Aliens Act

or of European community law, but do no more than evince their

disagreement with the decisions of the County Administration and the

administrative courts. The interference was therefore "in accordance

with the law" within the meaning of Article 8 para. 2 (Art. 8-2).

Moreover, when taking their decisions, the German authorities

considered the public interest in the regulation of the entry of

aliens, and compliance of aliens with the prevailing rules on

immigration, such as visa regulations, and in securing that a family

unification of aliens in Germany takes place only after integration of

one of the spouses in Germany. The impugned decisions thus pursued the

interests of the economic well-being of the country and the prevention

of disorder. These are a legitimate aims mentioned in Article 8

para. 2 (Art. 8-2).

As regards the question whether the interference complained of

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

the Contracting States enjoy a certain margin of appreciation in

assessing whether such a need for an interference exists, but it goes

hand in hand with European supervision (see, Eur. Court H.R., Berrehab

judgment of 21 June 1988, Series A no. 138, p. 15, para. 128; Funke

judgment of 25 February 1993, Series A no. 256-A, p. 24, para. 55).

The Commission notes that the administrative authorities had

regard to the applicants' family situation, in particular to the fact

that their marriage had been concluded in Turkey in 1991, and that the

second applicant had illegally entered Germany with a three months visa

for visiting purposes, although she intended to join the first

applicant. The German authorities further considered that the first

applicant, born in 1974, had only joined his parents in Germany in 1988

and did not fulfil the requirement of a minimum period of residence in

Germany in order to allow for the second applicant to join him on the

basis of family unification. They also found that the applicants

failed to show any other circumstances exceptionally entitling the

second applicant to stay.

In these circumstances, the Commission considers that there are

relevant and sufficient reasons for the challenged decisions. Weighing

the applicants' interests in pursuing their married life in Germany,

and the public interests at stake, the Commission finds that the German

authorities did not overstep the margin of appreciation left to them.

In this respect the Commission had particular regard to the fact that

the first applicant only came to Germany at the age of fourteen, that

he married the second applicant in 1991 in Turkey, while they were or

should have been aware of the prevailing immigration rules, and that

the second applicant illegally entered Germany. Moreover, the

applicants failed to show that they are prevented to pursue their

married life together in Turkey.

Consequently, the interference with the applicants' right to

respect for their private and family life was justified under Article 8

para. 2 (Art. 8-2) in that it can reasonably be considered "necessary

in a democratic society ... in the interest of the economic well-being

of the country" and "for the prevention of disorder and crime".

Accordingly, there is no 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).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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ÖZKARAN v. GERMANY

ÖZKARAN v. GERMANY

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