Lexploria

The European Commission of Human Rights sitting in private on

1 December 1986, the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 July 1985 by S.U.

and S.S. against the Federal Republic of Germany and registered on 29

October 1985 under file No. 11825/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the applicants,

may be summarised as follows:

The applicants, Tamils, are citizens of Sri Lanka presently living at

Neuss. The first applicant, born in 1947, is a public health officer

by profession. The second applicant, born in 1949, is a glass

technician. Before the Commission, they are represented by

Dr. U. Busch, a lawyer practising at Ratingen.

I.

The applicants entered the Federal Republic of Germany in 1979 and

1980, respectively. Their first requests to be admitted as political

refugees and granted asylum remained unsuccessful. After riots in

Sri Lanka in summer 1983 the applicants renewed their requests.

Pending the respective proceedings before the German authorities, the

Neuss Aliens' Office (Ausländeramt) issued provisional permissions to

stay (Duldungen) which were limited to the Neuss City District in

accordance with S. 17 para. 1 and S. 7 para. 1 of the German

Aliens' Act (Ausländergesetz).

S. 17 para. 1 states:

"The deportation of an alien may be temporarily suspended (provisional

permission to stay). The provisions of S. 7 paras. 1, 3 and 4 shall

apply mutatis mutandis. The provisional permission to stay has to be

renounced as soon as the reasons hindering the deportation are

removed."

S. 7 para. 1 provides, inter alia, that the residence permit of an

alien may be locally limited.

II.

On 26 July 1984 the Neuss District Court (Amtsgericht) fined the first

applicant for violation of the Act on Asylum Proceedings

(Asylverfahrensgesetz). The Court found that the first applicant had

travelled to Belgium in January 1984 and, thereby, violated his

obligation to stay within the Neuss City District according to his

limited permission to stay. The first applicant's appeal was

dismissed by the Düsseldorf Court of Appeal (Oberlandesgericht) on

8 March 1985. However, the Court corrected the previous instance's

findings as to the provisions applicable in the instant case and found

that the first applicant had violated his duty to stay within the

Neuss City District under the applicable provisions of the

Aliens' Act. On 7 May 1985 the Federal Constitutional Court

(Bundesverfassungs- gericht) rejected the first applicant's

constitutional complaint as offering no prospect of success.

III.

Meanwhile, on 18 October 1984 the Düsseldorf Administrative Court

(Verwaltungsgericht) dismissed the applicants' requests for an

injunction that they be allowed to leave the Neuss City District at

any time. The Court found that the applicants had not demonstrated

the extent to which they were entitled to be granted a provisional

permission to stay without any local limitations. It considered in

particular that the local limitations were imposed in accordance with

S. 17 para. 1 and S. 7 para. 1 of the Aliens' Act. Undue hardships

could be avoided by means of temporary permits to leave the district.

The applicants' respective appeals were dismissed by the North-Rhine

Westphalia Administrative Court of Appeal (Oberverwal- tungsgericht)

on 20 December 1984.

On 7 May 1985 the Federal Constitutional Court rejected the

applicants' constitutional complaints as offering no prospect of

success.

COMPLAINTS

1. The applicants complain under Article 2 of Protocol No. 4

(P4-2) that their provisional permissions to stay are limited to a

certain city district and thus violate their freedom of movement.

They submit in particular that these limitations are unreasonable in

view of the length of the asylum proceedings.

2. The applicants also invoke Articles 8, 11 (art. 8),

(art. 11), and 14 (art. 14) of the Convention in respect of their

complaint concerning the restriction of their freedom of movement.

They allege that they are no longer able to keep contact with family

members and friends.

THE LAW

1. The applicants complain that their provisional permissions to

stay are limited to the Neuss City District and thus violate their

freedom of movement as guaranteed by Article 2 of Protocol No. 4

(P4-2) which provides:

"Everyone lawfully within the territory of a State shall, within that

territory have the right to freedom of movement and freedom to choose

his residence."

The Commission has first considered whether or not Article 2 para. 1

of Protocol No. 4 (P4-2-1) applies in the circumstances of the present

case.

The Commission notes that, in accordance with S. 17 para. 1 and S. 7

para. 1 of the German Aliens' Act, the applicants were only

provisionally permitted to stay in the Neuss City District pending the

proceedings concerning their renewed requests for asylum.

The Commission observes that Article 2 para. 1 of Protocol No. 4

(P4-2) secures the freedom of movement to persons "lawfully within the

territory of a State". This condition refers to the domestic law of

the State concerned. It is for the domestic law and organs to lay

down the conditions which must be fulfilled for a person's presence in

the territory to be considered "lawful". The Commission, in this

respect, recalls its constant case-law according to which there is no

right of an alien to enter, reside or remain in a particular country,

as such, guaranteed by the Convention (cf. No. 9285/81, Dec. 6.7.82,

D.R. 29 p. 205). The Commission is of the opinion that aliens

provisionally admitted to a certain district of the territory of a

State, pending proceedings to determine whether or not they are

entitled to a residence permit under the relevant provisions of

domestic law, can only be regarded as "lawfully" in the territory as

long as they comply with the conditions to which their admission and

stay are subjected.

In the present case the applicants' provisional admission to the

territory of the Federal Republic of Germany is subject to the

condition that it extends only to the Neuss City District. Their

"lawful" stay within the territory is, therefore, geographically

limited. Article 2 of Protocol No. 4 (P4-2) does not extend that

right.

Consequently, the applicants' complaint that they are not granted

geographically unlimited permissions to stay within the territory of

the Federal Republic of Germany is manifestly ill-founded within the

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

2. The applicants have also invoked Articles 8, 11 (art. 8),

(art. 11) and 14 (art. 14) of the Convention in respect of their

complaint concerning the restriction of their freedom of movement.

However, the Commission notes that the applicants have not

demonstrated that the local limitation of their provisional

permissions to stay in fact restricts contacts with family members or

friends. The Commission finds that there is no appearance of a

violation of Articles 8, 11, or 14 (art. 8, 11, 14) 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.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

Menu

U. AND S. v. THE FEDERAL REPUBLIC OF GERMANY

U. AND S. v. THE FEDERAL REPUBLIC OF GERMANY

LEXI