SECOND SECTION

DECISION

Application no . 41160/12 Éva GUERRAB against Hungary

The European Court of Human Rights (Second Section), sitting on 17 September 2013 as a Committee composed of:

Peer Lorenzen, President, András Sajó, Nebojša Vučinić, judges, and Atilla Nalbant , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 25 June 2012,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Éva Guerrab, is a Hungarian national, who was born in 1949 and lives in Halásztelek.

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

In 2011 the applicant married Mr Guerrab, a Moroccan national born in 1984, while on a visit to Agadir, Morocco. Subsequently she returned to Hungary where she has lived ever since.

In 2012 Mr Guerrab requested, on the basis of family ties, a 3-month Schengen visa from Hungary ’ s consulate in Morocco. His request was rejected.

On appeal, on 14 March 2012 the Hungarian Ministry of Foreign Affairs upheld the rejection. The Ministry endorsed the consulate ’ s findings, based on interviewing Mr Guerrab, according to which the couple had acquainted on the Internet and never lived together although the applicant had visited Mr Guerrab in Morocco on five occasions, that they did not have a common language and Mr Guerrab could not reply to most questions about his wife, that he was 35 years younger than the applicant, and that he had no savings, property, job or a visa history – elements that altogether suggested that the marriage was one of convenience.

Mr Guerrab has not requested a standard visa (i.e. one not based on family ties).

The applicant submits that one of her sons born in a previous marriage, aged 31 and 41 years, suffers from schizophrenia and is in need of constant care, which makes it difficult for her to envisage setting up a common home in Morocco.

Under the relevant domestic law (that is, Act no. I of 2007 and Government Decree no. 113/2007. (V.24.)), Mr Guerrab was considered a privileged visa-seeker (family member of a citizen of the European Union citizen) in that the authorities were to assume that his return travel costs and subsistence costs while in Hungary were secured. If the visa authorities considered that the family ties were created only to facilitate the acquisition of a visa, this privilege was no longer applicable, and the person concerned could seek a standard 3-month Schengen visa subject to the demonstration of availability of appropriate financial means.

COMPLAINT

The applicant complains that the refusal to issue a family visa for her husband disrupted her family life. She relied on Articles 8, 12, 14 and 17.

THE LAW

The applicant complained under Articles 8, 12, 14 and 17 of the Convention that the fact that the authorities refused to issue a visa for her husband on the basis of family ties amounted to an unjustified interference with her right to respect for family life.

The Court considers that this issue falls to be examined under Article 8 alone, which provides 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 Court notes that the applicant ’ s husband sought, unsuccessfully, a 3 ‑ month Schengen visa relying on the family ties with the applicant. The authorities dismissed this request, taking the stance that the marriage was one of convenience. It further observes that this refusal resulted in the loss of the status of privileged visa-seeker, whereby the applicant ’ s husband was under no obligation to prove that this travel and subsistence costs were covered.

The Court cannot, however, overlook the fact that the applicant ’ s husband has never requested a standard visa, that is, without relying on the disputed family ties. It cannot speculate as to whether a visa would have been issued for the husband or denied, had all the means required been demonstrated to be in place.

The Court considers that the mere fact that the applicant ’ s husband was unable to benefit from a privileged visa procedure does not amount to an interference with the applicant ’ s family life.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Atilla Nalbant Peer Lorenzen Acting Deputy Registrar President