THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25709/05 by Ibrahim M . TAHER against Sweden

The European Court of Human Rights (Third Section), sitting on 29 November 2007 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr C. Bîrsan , Mrs E. Fura-Sandström , Mrs A. Gyulumyan , Mr David Thór Björgvinsson , Mrs I. Ziemele , Mrs I. Berro-Lefèvre , judges , and Mr S. Quesada , Section Registrar ,

Having regard to the above application lodged on 16 June 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ibrahim M Taher , is a Swedish national of Iraqi origin who was born in 1953 and lives in Linköping . The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg , Ministry for Foreign Affairs .

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

On 5 July 2000 the applicant arrived in Sweden from Iraq . On 28 September 2000 he was granted a permanent residence permit. He was not considered to be a refugee but a person “otherwise in need of protection”. He was granted Swedish citizenship on 10 August 2005.

On 4 January 2001, Zamrod Jamil Abdulqadir , a woman born in 1956, and six children, allegedly born in 1985, 1985, 1986, 1988, 1990 and 1993, respectively, applied for residence permits at the Swedish Embassy in Tehran , on the grounds that they were the wife and children of the applicant.

Ms Abdulqadir was interviewed at the Embassy on 3 April 2001 and 4 February 2002. She could not give a precise date of her alleged marriage with the applicant, only that it had been in the spring of 1982. No marriage certificate was submitted. She claimed that they had never thought that it was important to have their marriage registered. At the request of the interviewer, Ms Abdulqadir agreed to a bone age test of the four eldest children. This test, which was performed by a radiologist at the Iranian Medical Council No. 2692 on 5 February 2002, showed that all the children tested were at least 19 years old.

In a letter to the Migration Board of 11 May 2001, the applicant claimed that his marriage to Ms Abdulqadir had not been registered as the war between Iraq and Iran had made it impossible to visit the relevant authorities.

On 29 April 2002 the Migration Board ( Migrationsverket ) rejected the applications for residence permits. It found that the marriage between the applicant and the woman had not been registered in Iraq and considered that the four eldest children had to be considerably older than 18 years. Moreover, falsified documents and incorrect statements had been submitted by the woman and the children. The Board referred, inter alia , to their identity cards, all with the same registration and page numbers and containing information which was inconsistent with the claim that the marriage had not been registered. It stated that it could not be ascertained from the information submitted whether the applicant and the woman belonged to the same family, to different families or were in any way related. Noting that it was up to the persons requesting a residence permit to submit full and correct information, the Board concluded that the woman and the children had failed to show that they were related to the applicant.

Ms Abdulqadir and the children appealed to the Aliens Appeals Board ( Utlänningsnämnden ). They submitted a marriage certificate, according to which the applicant and the woman had been married on 25 December 1982. They argued that there had been a misunderstanding regarding the question whether the marriage had been registered or not; the applicant and Ms Abdulqadir had only meant that the marriage certificate was missing. Furthermore, the applicant requested that a new bone age test be performed.

On 8 January 2003 the Appeals Board informed the applicant that the Swedish authorities would not perform a new bone age test. However, he was invited to pay for a test himself and submit the test results. The applicant subsequently replied that he did not intend to have a new medical investigation performed.

On 13 February 2003 the Appeals Board rejected the appeal. It noted that the applicant and Ms Abdulqadir , during the investigation at the Migration Board, had stated that they had not been able to register their marriage with the Iraqi authorities due to the war between Iraq and Iran . However, in their appeal, they had stated that the marriage had in fact been registered but that they had misunderstood the question put to them and had had the impression that the fact that they did not have a certificate meant that no registration had been made. The Appeals Board found their statements contradictory and concluded that the explanation given in the appeal was no more credible than the information given at first instance. It further stated that Iraqi identity documents had a low value as evidence and, as such, did not prove the identity of the holder. In conclusion, the Board considered that the documents submitted did not prove the alleged identities and family ties. Moreover, the age of the four eldest children had not been confirmed.

On 2 April 2003 Ms Abdulqadir and the children filed new applications with the Swedish Embassy in Tehran . On 22 October 2003 the Embassy held a third interview with her and also briefly interviewed the children. She stated that the marriage certificate had been obtained in 2002 but had not been available at the time of her second interview at the Embassy. She had not obtained it earlier as the applicant had told her that it was not necessary for the first interview.

On 16 June 2004 the new applications for residence permits were rejected by the Migration Board, which found that no new circumstances had emerged.

In an appeal to the Aliens Appeals Board, new documents were submitted, including a certificate issued by the Iraqi Embassy in Stockholm on 3 August 2004. The certificate stated that, according to a marital contract issued by the Iraqi Ministry of Justice, the applicant and Zamrod Jamil Abdulqadir had been married on 25 December 1982.

On 20 December 2004 the Appeals Board rejected the appeal. Notwithstanding the certificate from the Iraqi Embassy, it found no reason to change its previous decision.

On 24 May 2006 the applicant submitted yet another application to the Migration Board on behalf of his alleged family members. In a letter of 15 June 2006, the Board requested that the applicant contact the family in order to make an appointment at a Swedish embassy abroad for an interview and to prove their identities. On 4 October 2006 the application was dismissed as the requested information had not been provided within the prescribed three-month period and the application had not been pursued.

COMPLAINT

The applicant complain ed, under Article 8 of the Convention, that the Swedish authorities ’ refusal to grant his wife and children residence permits in Sweden violated his rights.

THE LAW

The applicant claimed that his right to respect for his family life, under Article 8 of the Convention, had been violated. In so far as relevant, this provision reads as follows:

“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 respondent Government contested that Article 8 was applicable ratio materiae . Holding that, in a case concerning family reunification, the burden to provide sufficient evidence concerning the family relationship rested with the persons invoking such ties, the Government maintained that the applicant and his alleged family had submitted inconsistent information to the Swedish authorities and had failed to substantiate that there was “family life” within the meaning of the Convention.

The Government also submitted that the applicant had failed to exhaust domestic remedies, as he had not pursued the application lodged with the Migration Board on 24 May 2006. They pointed out that, according to an amendment to the Aliens Act ( Utlänningslagen ), which entered into force on 1 July 2006, a DNA analysis may be performed at the expense of the State if, in a case concerning resident permits on grounds of family ties, the investigation into the family relationship does not provide a sufficient basis for granting permits and it is not obvious that the alleged family ties do not exist. As the applicant could have been offered such an analysis, the Government argued that the abandoned procedure contained a new relevant legal remedy.

In any event, the Government contended that the application was manifestly ill-founded.

The applicant maintained his complaint.

The Court first finds that the present application cannot be declared inadmissible on grounds of non-exhaustion of domestic remedies. It is true that the applicant failed to pursue the application for residence permits submitted on 24 May 2006, almost a year after he had complained to the Court, and that the Aliens Act was subsequently amended to provide for the possibility of DNA analyses. However, before lodging the present application, the applicant – or rather his alleged family members – had made use of the remedies existing at that time by filing applications for residence permits at the Swedish Embassy in Tehran on 4 January 2001 and 2 April 2003. The latter proceedings were finalised through the Aliens Appeals Board ’ s decision of 20 December 2004. Thus, for the purposes of the present application, the applicant must be considered to have exhausted the remedies available to him.

The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective “respect” for family life. However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation. The extent of a State ’ s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. As a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. Moreover, where immigration is concerned, Article 8 of the Convention cannot be considered to impose on a State a general obligation to authorise family reunion on its territory (see, for instance, Gül v. Switzerland , judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, pp. 174-175, § 38; and Rodrigues da Silva and Hoogkamer v. the Netherlands , no. 50435/99, §§ 38-39, 31 January 2006, unreported).

The Court considers that, in the context of family reunification, it rests with the persons alleging that there is a family relationship to provide reliable evidence thereof and to demonstrate that that relationship constitutes “family life” within the meaning of Article 8 of the Convention.

In the instant case, the existence of “ family life ” has been put in question by both the national authorities and the respondent Government. The Court notes, in this respect, that Ms Abdulqadir , the applicant ’ s alleged wife, was first interviewed by the Swedish Embassy in Tehran on 3 April 2001. She could not give a precise date of her marriage with the applicant and did not provide a marriage certificate or any other evidence indicating the alleged family ties with the applicant. A marriage certificate was submitted only at the time of her appeal against the Migration Board ’ s decision of 29 April 2002. Moreover, the information submitted by her and the applicant in regard to the reasons for not obtaining a certificate in 1982, when they claimed to have been married, and with respect to the alleged registration date of the marriage was largely inconsistent throughout the proceedings. The Court also notes that the four eldest children underwent a bone age test, apparently due to the Embassy interviewer ’ s doubts as to their stated birthdates. The test results indicate that they were all older than stated and that some were likely born or conceived before the alleged marriage between the applicant and Ms Abdulqadir .

Having regard to the above, the Court considers that the Swedish authorities had good reasons to conclude that the alleged family ties had not been proven. Moreover, against this background, the applicant ’ s submissions to the Court do not provide sufficient substantiation for the allegation that Ms Abdulqadir and the six children are his wife and children. It has not been shown, therefore, that the refusal to grant Ms Abdulqadir and the children residence permits interfered with the applicant ’ s right to respect for family life under Article 8 of the Convention.

I t follows that Article 8 is not applicable in the instant case and that the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, in accordance with Article 35 §§ 3 and 4 of the Convention. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application i nadmissible .

Santiago Quesada Boštjan M. Zupančič Registrar President