Communicated on 8 January 2021 Published on 25 January 2021

THIRD SECTION

Application no. 2879/19 Tszyun TSAY against Russia lodged on 3 January 2019

STATEMENT OF FACTS

The applicant, Mr Tszyun Tsay , is a Chinese national who was born in 1975 and lives in Kharbin , China. He is represented before the Court by Mr V. Sapozhnikov , a lawyer practising in Moscow.

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

The applicant arrived in Russia in 1994 to study at university. He resided in the country based on visas and then on regularly-extended residence permits.

In 2000 the applicant married a Russian national, Ms I.B., with whom he had a son that year, also a Russian national. In 2002 the applicant and Ms I.B. separated and then officially divorced in 2006.

In 2002 the applicant started living as a family with another Russian national, Ms D.Zh ., with whom he had a daughter in 2003, also a Russian national. The applicant ’ s paternity was officially registered in 2016 at the Russian Consulate General in Shenyang, China.

From the documents submitted it transpires that until January 2012 the applicant did not have a record of either administrative or criminal violations in Russia.

On 15 January 2012 an operative officer of the Federal Service for Drug Control in Moscow discovered, in a public bathhouse, that the applicant had taken an amphetamine drug. An administrative case was instituted under Article 20.20 of the Code of Administrative Offences (“Use of alcohol or narcotic substances in public places”).

On 29 February 2012 the Federal Service for Drug Control issued a decision on administrative punishment no. 316-16/12, fining the applicant 1,500 roubles (about 30 euros). It is unclear whether the applicant paid the fine.

On 8 June 2012 the Federal Service for Drug Control issued decision no. 310-p on the undesirability of the applicant ’ s presence in Russia (hereafter “the exclusion order”), banning his re-entry into the country for an unlimited duration of time. The document in its entirety read as follows:

“1. On the basis of the materials received from the Moscow division of the Federal Service for Drug Control, and in accordance with section 25.10 of the Entry and Exit Procedures Act, to declare undesirable the presence in Russia of Chinese national Tszyun Tsay ...

2. To notify the decision to the officers and employees of the drug-control authorities ...”

According to the applicant, he was not informed of the exclusion order. The applicant submits that he learnt of the exclusion order at the airport in Ulan-Ude, Russia, in December 2012, on his way back from China. No explanations, such as the reasons for the exclusion order or its duration, were given to him.

It appears that since December 2012 the applicant has resided in China and has been unable to re-enter Russia due to the exclusion order of unlimited duration.

According to the applicant, owing to the lack of information concerning the reasons for his exclusion from Russia, he was unable to challenge it promptly in the domestic courts.

On 3 May 2017 the applicant ’ s lawyer appealed against the exclusion order to the Zamoskvoretzkiy District Court in Moscow (hereafter “the District Court”) claiming that the exclusion was a disproportionately severe measure for a single administrative violation by a long-term migrant such as the applicant, and that it disrupted the applicant ’ s family life with his civil partner and two children, all of whom were Russian nationals living in Russia.

On 20 June 2017 the District Court upheld the exclusion order, having stated, in general terms, that the fact that the applicant had two children and a family life in Russia did not preclude the imposition of the impugned measure.

On 20 December 2017 the Moscow City Court examined the appeal of the applicant ’ s lawyer against the above decision and upheld the findings of the District Court. It stated that the exclusion was a proportionate measure, considering that the applicant ’ s children were no longer of a very young age and the applicant ’ s communication with them did not necessitate his presence in Russia.

On 28 April 2018 the Moscow City Court examined the cassation appeal of the applicant ’ s lawyer and upheld the exclusion order, having stated in general terms that the reasoning of the lower courts had been duly motivated.

On 13 August 2018 the Russian Supreme Court refused to forward the further cassation appeal of the applicant ’ s representative for examination on the merits and upheld the exclusion order.

For the relevant domestic law and practice, see Gablishvili v. Russia , no. 39428/12, § 31-36, 26 June 2014.

COMPLAINTS

The applicant complains under Article 8 of the Convention that the exclusion order of unlimited duration was a disproportionate punishment for the single administrative offence committed by him and that the Russian courts failed to examine his submissions concerning the adverse effect of the exclusion on his family life.

QUESTIONS TO THE PARTIES

1. Did the exclusion order issued on 8 June 2012 in respect of the applicant constitute an interference with his right to respect for family life within the meaning of Article 8 of the Convention? Did the domestic courts duly examine the applicant ’ s allegation of disproportionality of the exclusion as an administrative punishment and its adverse effect on his family life (see Ãœner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006 ‑ XII , and Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014)?

2. The Government are invited to furnish copies of the documents concerning the refusal(s) to allow the applicant to enter Russia after the issuing of the exclusion order.