FIRST SECTION

DECISION

Application no. 4558/17 Emrana HASANI against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 26 June 2018 as a Committee composed of:

Aleš Pejchal , President, Armen Harutyunyan , Jovan Ilievski , judges, and Abel Campos , Section Registrar ,

Having regard to the above application lodged on 30 December 2016,

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

1. The applicant, Ms Emrana Hasani , is a stateless person who was born in 1986 in Kosovo [1] and lives in Kavadarci , the former Yugoslav Republic of Macedonia. She was represented before the Court by Ms L. Noveska Andonova , a lawyer practising in Skopje.

2. The Macedonian Government (“the Government”) were represented by their Agent, Ms D. Djonova .

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

4. In 1999 the applicant (a minor at the time) and her family fled Kosovo and settled in the respondent State, where she has been living ever since. She was granted asylum, which was extended on several occasions.

5. On 13 September 2007, after an interview held with the applicant, the Ministry of Interior (“the Ministry”) terminated the applicant ’ s asylum holding that the asylum requirements specified in the Asylum and Subsidiary Protection Act had no longer stood and that she could regularise her residence in the respondent State under the Aliens Act. The decision stated that she was in a common-law partnership with a Macedonian national, with whom she had, at the time, two minor children. The applicant was ordered to leave the respondent State within thirty days of the receipt of the decision.

6. The case was remitted for re-examination on three occasions by the Administrative Court owing to procedural flaws. In the proceedings, the applicant, who was represented by a lawyer of her own choosing, was interviewed on several occasions by the Ministry. According to the official records, she undertook to obtain personal identification documents from Kosovo in order to regularise her status with her partner in the respondent State (given her stated intention to enter into marriage with him). At those interviews, the applicant failed to specify the reason for having fled Kosovo; she did not enrol in the UNHCR program for voluntary return to Kosovo; and, without further details, objected to any such return.

7. On 23 February 2015 a second-instance commission of the Government dismissed the applicant ’ s appeal against the decision of 13 September 2007 holding that her common-law relationship with her partner, with whom she had four minor children (all Macedonian nationals), had been the sole grounds for her continued residence in the respondent State and that she had failed to take – although instructed to do so by the authorities since 2007 – any action to regularise her status on those grounds.

8. The applicant challenged this decision, arguing that it had not explained whether the reasons that had prompted her to leave Kosovo and obtain asylum in the respondent State had ceased to pertain. The administrative authorities had failed to establish whether the applicant would be persecuted or otherwise face inhuman or degrading treatment if returned to Kosovo. Furthermore, the commission had disregarded her arguments about lack of personal identification documents. In any event, that she had not married her partner had not been valid grounds for termination of her asylum. She had lost all contact with Kosovo owing to fear of persecution.

9. By decisions of 26 November 2015 and 13 June 2016, two levels of administrative court dismissed the applicant ’ s appeals, finding that “she had neither feared nor had identified any circumstances pointing to a real risk that she would be subjected to inhuman and degrading treatment if returned to Kosovo. She also had not regularised her marital status ... for her lawful residence in the [respondent State].” The Higher Administrative Court further added that “she had not taken any initiative or proceedings, notwithstanding the fact that she had been instructed to do so since 2007, in order to regularise her stay in [the respondent State]”. A note by the Ministry indicating that “it had taken into consideration that Kosovo had been regarded in all relevant reports as a safe country of origin” had preceded this later decision.

10. By a letter of September 2016, the Ministry informed the applicant that the asylum proceedings had been completed and instructed her to regularise her residence in the respondent State on the basis, inter alia , of section 49(1) and (3) of the Aliens Act, which provided that a residence card would be issued for family unification purposes to an alien who was in a close family relationship with a Macedonian national. At interviews held in October 2016 and January 2017 the applicant informed the Ministry that she had not been recorded in the register of births in Kosovo and that her parents had not yet contacted the authorities there so that she could obtain personal identification documents relevant to her marriage with her partner. She objected to her having to return to Kosovo, stating that “[she did] not want to leave the children, ha[d] no one there and ha[d] nowhere to live.”

11. The Government submitted copies of passports of the applicant ’ s siblings and parents issued in 2017 by Kosovo authorities.

COMPLAINTS

12. The applicant complains that her deportation to Kosovo would violate her rights under Articles 3, 8 and 13 of the Convention.

THE LAW

13. The applicant complained of a violation of her rights under Articles 3, 8 and 13 of the Convention owing to the termination of her asylum in the respondent State. These Articles read as follows:

Article 3

“ No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

“ 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.”

Article 13

“ Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties ’ submissions

1. The Government

14. The Government disputed the applicant ’ s victim status under Article 34 of the Convention, arguing that there had been no order, decision or measure taken with a view to her expulsion from the respondent State. They averred that there was no example of forcible removal of a person who had been residing in the respondent State in relation to the Kosovo crisis of 1999. Accordingly, there was no risk that she would be expelled. Furthermore, she had not exhausted domestic remedies; specifically she had failed to regularise her stay in the respondent State in accordance with the Aliens Act despite the authorities ’ numerous instructions in this connection since 2007. She had taken no steps to obtain the necessary documents from Kosovo notwithstanding the absence of any legal and factual obstacles to doing so.

15. In any event, the applicant had failed to prove that she had faced a real risk that, if expelled to Kosovo, she would be subjected to a treatment contrary to Article 3 of the Convention. Furthermore, the administrative and judicial bodies that had decided the applicant ’ s case had been aware of the fact that Kosovo had been regarded as a safe country of origin. The latter had been confirmed in several international reports. Accordingly, there was nothing to suggest that the applicant, if expelled, would be endangered in Kosovo. The fact that she was stateless could not lead to a different outcome. As regards her complaints under Article 8 of the Convention, the authorities had advised her of the measures that she should have taken in order to regularise her stay in the respondent State on the basis of her family relationships with Macedonian nationals (her partner and children). That her continued residence in the respondent State had no valid grounds was solely her fault.

2. The applicant

16. The applicant argued that the impugned decision, which was valid and enforceable, had contained an order requiring her to leave the respondent State. The authorities had not explained why they had considered that the reasons warranting her asylum had seized to pertain. Their decisions had not relied on any international report regarding Kosovo. In that connection she referred to other reports according to which Roma “[had] suffered discrimination and faced problems [acquiring] personal identification documents”. The authorities ’ analysis had not involved an assessment of the individual risks, but it had been focused on her family situation, which had not been valid grounds for termination of her asylum. Their instructions that she should contact the Kosovo authorities with a view to obtaining personal identification documents had demonstrated their bad faith. Any such contact would have been grounds for termination of her asylum.

17. She further contested the Government ’ s arguments that she could have regularised her status in the respondent State under the Aliens Act. It was so because she was stateless and had no personal identification documents. In any event, regularisation of her status on those grounds would have had no bearing on the impugned decisions and could not be regarded as an effective remedy for her grievances. Her expulsion would result in her separation from her family.

B. The Court ’ s assessment

18. The Court notes that the Ministry ’ s decision of 13 September 2007 had the effect of terminating the applicant ’ s asylum in the respondent State. It also contained an explicit order compelling the applicant to leave the respondent State within the specified time-limit (see paragraph 5 above). The Court notes that that order was not revoked or otherwise invalidated. Furthermore, there was no decision by any domestic authority by which the implementation of that order was suspended or the applicant granted leave to stay in the respondent State (see, conversely Saeed v. Denmark ( dec. ), no. 53/12, § 7, 24 June 2014). Accordingly, the applicant risks expulsion at any time. The fact that the order has not been enforced to date is insufficient for the Court to conclude that the order compelling the applicant to leave the respondent State is no longer in force or that it cannot lead to her expulsion. The authorities ’ tolerance of the applicant ’ s stay in the respondent State (see paragraph 14 above) arose from decisions made in the exercise of their discretion and were not based on any statutory grounds.

19. In such circumstances, the Court is satisfied that the Ministry ’ s final decision of 13 September 2007 ordering the applicant to leave the respondent State is to be regarded as a measure of expulsion taken against her.

20. T he general principles under Article 3 of the Convention regarding expulsion of an alien are set out in J.K. and Others v. Sweden ([GC] , no. 59166/12 , §§ 77-105, ECHR 2016) .

21. Turning to the present case, the Court considers that the applicant did not discharge the burden of proof as to the existence of an individual, and thus a real risk of ill-treatment if the measure complained of were to be implemented. In that context, it notes that in the asylum proceedings she did not adduce any evidence capable of distinguishing her situation from the alleged general perils in the country of destination. On the other hand, the Court is satisfied, even if the reasoning provided was limited, with the evaluation of the general situation in Kosovo carried out by the national authorities. The applicant failed to present relevant information that the findings of that assessment could have been any different after the final decision by the domestic authorities had been taken.

22. As to the applicant ’ s complaints under Article 8 of the Convention, the Court observes at the outset that there can be no doubt that there is family life within the meaning of Article 8 of the Convention between the applicant, her cohabitating partner and their children born in the respondent State. Moreover, assuming that the applicant ’ s private life could also be affected, the Court will nevertheless pay special attention to her family life, in view of the questions raised by th e present case and the parties ’ submissions (see, mutatis mutandis, Ãœner v. the Netherlands [GC], no. 46410/99, §§ 59-61, ECHR 2006 ‑ XII).

23. As regards the standpoint from which the case should be examined, the Court notes that the applicant ’ s complaint under this head concerns the Ministry ’ s order and the resulting threat of her removal to Kosovo. However, it observes that in the asylum proceedings the applicant did not raise the resulting impact of her removal on her family life. The central issue in those proceedings was the regularisation of her residence status on the grounds of her family life. In such circumstances and in view of the parties ’ submissions, the Court considers that the applicant ’ s allegations should be examined through the prism of the authorities ’ positive obligation to allow her to reside in the respondent State in order to maintain and further develop her family life. In this connection the Court reiterates that in the context of both its positive and its negative obligations, the State must strike a fair balance between the competing interests of the individual and of society as a whole, and that the extent of the State ’ s obligations will vary according to the particular circumstances of the persons involved and the general interest (see Paposhvili v. Belgium [GC], no. 41738/10, § 221, ECHR 2016).

24. The Court notes that the applicant has lived for a considerable length of time in the respondent State, the country that she moved to at the age of 13 together with her parents and siblings. She subsequently went on to found a family there. Her stay in the respondent State relied on her asylum and was accordingly lawful. In 2007 the Ministry terminated her asylum and advised her to regularise her stay on the grounds of her family ties with her cohabitating partner and her children, all Macedonian nationals. The only requirement was that she obtain personal identification documents from Kosovo. The Court notes that she did not take any action in this respect notwithstanding that more than nine years had lapsed since the Ministry ’ s order. The applicant did not provide any explanation for this failure. That Roma allegedly “face problems acquiring personal documents” in Kosovo is insufficient to release her of her obligation to take an appropriate action in order to secure the required documents. She did not present anything to argue that her situation was different from that of her parents and siblings who had obtained such documents. Furthermore, there is nothing to suggest that the avenue open to her under the Aliens Act could not have remedied her situation. The decision would rest on family grounds that are directly connected with her grievances before the Court . Moreover , there appears to be no other elements (for example a criminal conviction) related to the applicant that could undermine the prospect of success of that avenue. Lastly, it is the Court ’ s settled case-law relating to the deportation or extradition of non-nationals that the regularisation of an applicant ’ s stay is sufficient in principle to remedy a complaint under Article 8 (see Kurić and Others v. Slovenia [GC], no. 26828/06, § 261, ECHR 2012 (extracts), and the references cited therein ).

25. Lastly, the Court reiterates that Article 13 only applies where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). In view of its findings above regarding the substantive complaints, the Court considers that the applicant has no “arguable claim”.

26. In view of the foregoing, the Court considers that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

27. For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 July 2018 .

Abel Campos Aleš Pejchal Registrar President

[1] . All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo .