FIFTH SECTION

DECISION

Application no . 52390/09 Shaban AHMAD and others against Germany

The European Court of Human Rights ( Fi fth Section), sitting on 11 December 2012 as a Committee composed of:

André Potocki , President, Angelika Nußberger , Aleš Pejchal , judges,

and Stephen Phillips, Deputy Section Registrar ,

Having regard to the above application lodged on 24 September 2009,

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

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The first and the second applicants , Mr Shaban Ahmad and Mrs Nazli Beiro , are Syrian nationals of Kurdish ethnicity who were born in 1961 and 1968 respectively. The third to fifth applicants, Alan, Juan and Hevin Ahmad, are the children of the first and the second applicant. They were born in Germany in 1996, 2003 and 2006. All applicants live together in Voerde , Germany .

They are represented before the Court by Mr M. Karadas , a lawyer practising in Duisburg .

On 10 November 2007 the applicants applied for residence permits on humanitarian grounds under section 25 paragraph 5 of the Residence Act as deportation was not feasible for factual grounds. On the same day the applicants also applied for a residence permit under section 104a of the Residence Act on grounds of hardship. They argued that their continuous illegal residence status was a particular hardship for them. They submitted in detail that they had always been co-operative with the German authorities. The report of the Syrian representation that the first and second applicants had not filled in documents correctly was misplaced as they were not able to fill in documents in Arabic language.

On 13 March 2008 the Wesel District Administrator declined to grant temporary residence permits under section 104a of the Residence Act for all applicants on the ground that the first and the second applicants had intentionally protracted procedures for their removal. The authority pointed out that the applicants were not hindered to leave Germany voluntarily. The minor children shared the status of their parents and had therefore no independent right to a residence permit.

On 15 April 2008 the applicants filed for judicial review at the Düsseldorf Administrative Court . They argued that the Wesel District Administrator knew well that the proceedings to obtain Syrian identity papers were difficult if not impossible. It was even known to the authority that the Syrians acted arbitrarily and might require personal attendance in Syria . They further argued that the minor applicants could not be held liable for the alleged misbehaviour of their parents, the first and second applicants.

On 26 March 2009 the Düsseldorf Administrative Court dismissed the claim. It argued that the applicants were not in a position to be granted a temporary residence permit as they had effectively obstructed proceedings to remove them. The court further considered that the minor applicants shared the residence status of their parents. The family consisting of parents and minor children formed a “residence unit” ( au fenthaltsrechtliche Schicksals gemeinschaft ), in distinction from the adult sons.

On 8 June 2009 the North Rhine-Westphalia Administrative Court of Appeal declined to grant leave to appeal.

On 4 September 2009 the Federal Constitutional Court , in a composition of a panel of three judges, declined to review the constitutional complaint.

On 15 June 2012 the case was communicated to the Government for observations regarding the third to fifth applicants.

In their observations of 3 September 2012, the Government informed the Court that, on 3 December 2009 all applicants had been granted temporary residence permits in Germany . The Government further pointed out that the applicant had failed to inform the Court of this development and applied that the application be declared inadmissible pursuant to Article 35 (3a) of the Convention.

By a letter of 18 September 2012 the applicants consequently expressed the wish to withdraw the application.

COMPLAINTS

The applicants complained under Articles 8, 14 and Article 1 of Protocol No. 7 as well as under Article 4 of Protocol No. 4 of the Convention that the national courts had wrongly established that the applicants intentionally protracted the removal proceedings. The third to fifth applicants stated that they did not know any other country than Germany and were fully integrated into German society. They pointed out that they – the minor applicants – could not reasonably be held responsible for their parents ’ behaviour on which they had no influence.

THE LAW

The Court notes that on 3 December 2009 the applicants were granted temporary residence permits and that they now expressed the wish to withdraw the present application.

Consequently, there is reason to strike the application out of the Court ’ s list of cases under Article 37 § 1 (a) of the Convention, as the applicants do not intend to pursue their application, and under Article 37 § 1 (b), as the matter has been resolved. Further, no special circumstances relating to respect for human rights as defined in the Convention and its Protocols require the Court to continue its examination of the case in accordance with Article 37 § 1 in fine .

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Stephen Phillips André Potocki Deputy Registrar President