Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24136/94

by H. Z.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 9 March 1994 by

H. Z. against Sweden and registered on 11 May 1994 under file No.

24136/94;

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 applicant is a citizen of former Yugoslavia and of Kosovo-

Albanian origin. He was born in 1972 and is currently residing at

Kristinehamn, Sweden. Before the Commission he is represented by

Mr. Lars Sjödin, a lawyer at Härnösand.

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

summarised as follows.

Particular circumstances of the case

The applicant entered Sweden on 1 September 1992. On 2 September

1992 he requested asylum there, alternatively a residence permit on

humanitarian grounds, referring to his fear of being arrested and

forced to participate in acts of war committed by the army of former

Yugoslavia.

In January 1993 the applicant started cohabiting with A., a woman

of Swedish nationality, and her son from a previous relationship.

On 9 March 1993 the National Immigration Board (statens

invandrarverk) rejected the applicant's request for asylum or a

residence permit and decided to expel him from Sweden. He was

furthermore prohibited from returning to Sweden before 1 April 1995.

The applicant appealed, referring, inter alia, to his

relationship with A., with whom he contracted marriage on 28 May 1993.

He informed the Aliens Appeals Board (utlänningsnämnden) of the

marriage on 11 June 1993.

On 28 June 1993 the Aliens Appeals Board rejected the applicant's

appeal, considering, in particular, that his relationship with A. did

not constitute a reason for granting a residence permit while he was

staying in Sweden.

The applicant lodged a further request for a residence permit,

complaining that his submission of 11 June 1993 had not been taken into

account by the Aliens Appeals Board.

On 6 July 1993 the National Immigration Board rejected the

applicant's further request, considering that the new circumstances

invoked were not sufficient for the granting of a residence permit.

In the autumn of 1993 the applicant applied for a passport at the

Embassy of former Yugoslavia in Stockholm. No passport was issued. The

applicant then lodged a further request for a residence permit,

claiming that it was impossible for him to obtain a passport enabling

him to leave the country for the purpose of lodging a fresh request for

a residence permit in Sweden.

On 21 December 1993 the National Immigration Board rejected the

applicant's further request, observing that on 28 July 1993 the Embassy

of former Yugoslavia had requested the applicant to fill out certain

forms and to state how he had been able to leave that country without

a passport. Subsequently he had been requested to appear in person at

the Embassy in order for his passport application to be processed.

According to the applicant, it emerged from his subsequent meeting with

Embassy staff that he would have to undergo his military service in

former Yugoslavia upon his expulsion there and that he would therefore

not be issued with a passport.

As from June 1994, A. is pregnant with a child to be born to her

and the applicant.

Relevant domestic law

According to the 1989 Aliens Act (utlänningslag 1989:529), an

expulsion order issued by the National Immigration Board may be

combined with a prohibition on the alien's return valid either for a

certain period of time or indefinitely (Chapter 4, Sections 1 and 14).

An alien who has been prohibited from returning to Sweden may,

nevertheless, be granted a permit to visit the country for extremely

important purposes. For particular reasons, such a permit may be

granted at the request of someone other than the alien himself (Chapter

4, Section 15).

A request for a residence permit lodged by an alien, who is to

be refused entry or expelled by a decision which has acquired legal

force, may only be granted if the request is based on new circumstances

and provided that the applicant is entitled to asylum or there are

weighty humanitarian reasons for allowing him to stay in Sweden

(Chapter 2, Section 5, subsection 3).

COMPLAINTS

The applicant complains that his impending expulsion to former

Yugoslavia would violate his rights under Article 8 of the Convention.

The expulsion would disrupt his family life and prevent a subsequent

reunification of the family.

THE LAW

The applicant complains that his impending expulsion to former

Yugoslavia would disrupt his family life and thus violate his rights

under Article 8 (Art. 8) of the Convention. This provision 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 Contracting States are in

principle free to control the entry, residence and expulsion of aliens.

The duties imposed by Article 8 (Art. 8) of the Convention cannot be

considered as extending to a general obligation on the part of a

Contracting State to respect the choice by married couples of the

country of their matrimonial residence and to accept the non-national

spouses for settlement in that country (Eur. Court H.R., Abdulaziz,

Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp.

33-34, paras. 67 and 68). Expulsion of a person from a country in which

close members of his family live may, however, amount to an unjustified

interference with his right to respect for his family life as

guaranteed by Article 8 (Art. 8) of the Convention (e.g., Eur. Court

H.R., Moustaquim judgment of 18 February 1991, Series A no. 193,

pp. 19 et seq., paras. 43 et seq.).

The Commission considers that the decision ordering the

applicant's expulsion from Sweden and the related prohibition on his

return would, if enforced, interfere with his right to respect for his

family life due to his relationship with his Swedish wife residing in

that country. It must next be examined whether this interference would

be justified under the terms of para. 2 of Article 8 (Art. 8-2). Under

that paragraph such an interference must satisfy three conditions: it

must be "in accordance with the law", it must pursue one or more of the

aims enumerated in para. 2 and it must be "necessary in a democratic

society" for that aim or those aims. The necessity criterion implies

the existence of a pressing social need and, in particular, requires

that the measure be proportionate to the legitimate aim pursued (the

above-mentioned Moustaquim judgment, pp. 18 et seq., paras. 37 et

seq.). Regard should further be had to the margin of appreciation

afforded to the Contracting States (Eur. Court H.R., Berrehab judgment

of 21 June 1988, Series A no. 138, pp. 15-16, para. 28).

The Commission is satisfied that the expulsion order was issued

"in accordance with the law". It also considers that the enforcement

of the order would pursue a legitimate aim under Article 8 para. 2

(Art. 8-2), namely the economic well-being of the country. As regards

the question whether the interference was "necessary in a democratic

society" in pursuit of the above-mentioned aim, the Commission observes

that the applicant and A. contracted marriage only after the National

Immigration Board's initial expulsion order. He cannot therefore

reasonably have expected to be able to pursue his family life with A.

in Sweden. The Commission further observes that the expulsion order has

not yet been enforced and that the prohibition on his return to Sweden

is to expire in April 1995. Should enforcement take place, the

applicant or his wife could, in principle, apply for a short-term

residence permit enabling him to visit her in Sweden even while the

prohibition on return is valid.

Taking into account the margin of appreciation left to the

Contracting States, the Commission concludes that the enforcement of

the expulsion order would be justified under Article 8 para. 2

(Art. 8-2) of the Convention in that it can reasonably be considered

as "necessary in a democratic society" in pursuance of the above-stated

aim. Accordingly, the enforcement of the expulsion order would not

violate Article 8 (Art. 8).

It follows that the application must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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H.Z. v. SWEDEN

H.Z. v. SWEDEN

LEXI