Communicated on 8 February 2021 Published on 1 March 2021

THIRD SECTION

Application no. 51973/18 Visam Mokhamed Farkhat AL-TBAKHI and Others against Russia lodged on 7 November 2018

STATEMENT OF FACTS

The applicant, Mr Visam Mokhamed Farkhat Al-Tbakhi is a Jordanian national who was born in 1977 and lives in Nizhniy Novgorod, Russia. He is represented before the Court by Ms O. Sadovskaya, a lawyer practising in Nizhniy Novgorod.

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

Between 1997 and 2001 the applicant studied at a technical school in Saint Petersburg, Russia, where he had moved from Ukraine. In 2001 the applicant moved to Nizhniy Novgorod, Russia, where in the same year he married a Russian national, Ms K.A. On an unspecified date in 2001 he was granted Russian nationality.

Between 2001 and 2017 the applicant and his wife had seven children.

In March 2010, as a result of a robbery, the applicant lost his Russian passport and applied for a new one. He received the new passport having successfully undergone the necessary examination of the grounds for obtaining Russian nationality in 2001.

On an unspecified date in 2017 the Federal Security Service (the FSB) concluded that the applicant represented threat to Russia ’ national security and sent the information letter to the Nizhniy Novgorod Regional Department of the Ministry of the Interior (DMI) (see below).

On 14 December 2017 the applicant was invited to come to the DMI with his Russian national passport and the Russian travel passport used for travelling abroad. The FMS seized both of the applicant ’ s passports without providing any explanation. They only informed the applicant that on 8 December 2017 the DMI had issued a report stating that both of his Russian passports had been issued in violation of the relevant procedure .

The applicant ’ s Russian citizenship was revoked. The applicant applied for the Russian nationality anew, following the decision of the Sormovskiy District Court in Nizhniy Novgorod of 12 February 2018 (see below). His application was rejected on 9 June 2018.

On an unspecified date in December 2017 or January 2018 the applicant appealed the revocation of his Russian nationality and the seizure of his passport to the Sormovskiy District Court in Nizhniy Novgorod .

On 12 February 2018 the District Court rejected the applicant ’ s appeal. In its decision, it stated that on 3 November 2017 the FBS requested the DMI “to verify whether the applicant had been granted Russian nationality and the circumstances surrounding [the issuing ]”. Following this request, on 8 December 2017 the DMI issued the report stating that the Russian nationality had been granted to the applicant in violation of the procedure as in fact “no such decision had been taken” as “the signature of the head of the Nizhniy Novgorod Regional Police Department had been missing” on the relevant decision. The court stated that the issuance of the Russian passport to the applicant did not mean that he had in fact been granted the nationality. At the same time, the court ordered that the police were to again examine the applicant ’ s original request for Russian nationality lodged in 2001 (see above).

The applicant appealed that decision to the Nizhniy Novgorod Regional Court (the Regional Court). On 11 May 2018 the Regional Court rejected the appeal having endorsed the decision of the District Court.

On 24 September 2018 the Regional Court rejected the applicant ’ s request for a cassation appeal. It appears that the applicant sought further appeal, but the outcome of these proceedings is unknown.

According to the applicant ’ s submission, the domestic courts failed to examine his allegations of the adverse effect of the revocation of his Russian nationality on his family life.

It appears that at some point in 2018 after the decision of the Regional Court rejecting the applicant ’ s appeals against the revocation of his Russian nationality, an undisclosed authority issued a decision declaring the applicant ’ s presence in Russia undesirable and banning his re-entry into the country until 2048. The applicant was not informed thereof.

On 25 or 26 October 2018 the applicant was detained for a violation of Article 18.8 of the Code of Administrative Offences of the Russian Federation (the COA), that is living in the Russian Federation without a valid residence permit or non-compliance with the established procedure for registering residence.

On 26 October 2018 the Avtozavodskiy District Court in Nizhniy Novgorod found the applicant guilty of the violation of the above provision and ordered the payment of a fine of 2,000 roubles (RUB) along with his administrative removal from Russia. The applicant was placed in detention pending the removal. In its decision, the court referred to a decision taken by an unspecified authority according to which the applicant represented a national security threat and that his re-entry was to be banned until 2048. Therefore, the applicant was to be subjected to deportation from Russia.

The applicant appealed against the above decision to the Regional Court. On 8 November 2018 the court upheld the removal order having stated as follows:

“... The removal [in respect of the applicant] has been applied based on sufficient grounds as in respect of him a decision banning his re-entry until 31 January 2048 was taken. That decision was taken with the aim of protecting security of the State and the public order as this foreign national represents a threat, which is confirmed by documents in the case file concerning the administrative violation. The necessity of the imposition of the administrative removal as additional punishment is envisaged by the sanction of Article 18.8 of the Code of Administrative Offences ...”

As to whether the removal amounted to an interference with the applicant ’ s family life with his wife and children, the court stated that:

“... the applicant ’ s argument that he has wife and children in Russia cannot be taken into account by the court and cannot be used as a reason for overruling of the [first instance] court ’ s decision.

Besides, given that Al-Tbakhi Visam Mokhamed Farkhat resides in Russia unlawfully, he cannot work legally and therefore, be the breadwinner for his wife and children ...”

It is unclear whether the applicant has been deported from Russia and if so, under what circumstances.

For the relevant domestic law and practice see Usmanov v. Russia , no. 43936/18, § § 33-39, 22 December 2020 .

COMPLAINT

The applicant complains under Article 8 of the Convention that the revocation of his Russian nationality on undisclosed grounds and the imposition on him of the re-entry ban until 2048 were based on undisclosed information, and that the domestic court failed to duly examine the reasons thereof as well as its adverse effect on his life with his wife and children, which violated his right to respect for family life.

QUESTIONS TO THE PARTIES

1 . What is the outcome of the applicant ’ s cassation appeal against the decision of 12 February 2018 by the Sormovskiy District Court in Nizhniy Novgorod ? The applicant is requested to provide copies of the relevant decisions.

2. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention, as alleged by the applicant? In particular,

- What were the grounds and reasons for the letter of 3 November 2017 by the Federal Security Service of the Nizhniy Novgorod Region to the Nizhniy Novgorod Regional Department of the Ministry of the Interior requesting them to verify the circumstances under which the applicant had been granted the Russian nationality? The Government are requested to provide a copy of that letter and other relevant documents

- Which authority issued the recommendation/decision stating that the applicant represented threat to Russia ’ national security and that his re ‑ entry into the country should be banned until January 2048, as referred to in the decision of 26 October 2018 by the Avtozavodskiy District Court in Nizhniy Novgorod? When was this document issued and on what grounds? The Government are requested to produce a copy of the materials which served as the basis for that recommendation/decision.

The Court notes that access to the documents requested may be restricted pursuant to Rule 33 §§ 1 and 2 of the Rules of Court.

- What was the scope of review of the domestic courts which examined the applicant ’ s appeals against the revocation (annulment) of his Russian nationality? Did the courts make a balancing exercise between the public interests and the applicant ’ s right to respect for his family life?

- What was the scope of review of the domestic courts which examined the applicant ’ s appeals against his administrative removal? Was it within the courts ’ competence to verify whether the recommendation/decision was based on genuine national security grounds and whether the executive body was able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant presented a risk in that regard? Did the courts make a balancing exercise between the need to protect national security and the applicant ’ s right to respect for his family life?

- Was the classified information concerning the undesirability of the applicant ’ s presence in Russia and the ban on his re-entry disclosed to the applicant or his representative? Was the applicant given a fair and reasonable opportunity to refute the facts and findings contained in that material? In particular, did the courts examine other pieces of evidence to confirm or refute the allegations against the applicant? Did the applicant have an opportunity to have witnesses questioned or present other evidence?

3. The Government are invited to inform the Court whether the applicant has been deported from Russia, and if so, when and under what circumstances. They are invited to provide copies of the relevant documents.

4. The Government are invited to provide also copies of the following documents:

- with references to the relevant legislation, a list of national authorities authorised to revoke (annul) Russian nationality and issue re-entry bans based on national security considerations as well as the grounds and time frame for periodical/regular review of the bans imposed;

- documents pertaining to the reasons for the revocation (annulment) of the applicant ’ s Russian nationality and the decision on his administrative removal, including those reflecting his current immigration status, such as the deportation order, etc.