Communicated on 6 January 2021 Published on 25 January 2021

THIRD SECTION

Application no. 11005/19 Sergey Leonidovich SMIRNOV and Svetlana Vladimirovna NOVOSELOVA against Russia lodged on 15 February 2019

STATEMENT OF FACTS

The applicants, Mr Sergey Leonidovich Smirnov, a Belarusian national and Ms Svetlana Vladimirovna Novoselova , a Russian national, were born in 1969 and 1980 respectively and live in Perm. They are represented before the Court by Mr A. Bryazgunov , a lawyer practising in Perm.

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

The first applicant, a former citizen of the USSR, resided in Belarus since 1994. In 2001 he received a national passport in Belarus that was valid until August 2014.

In 2003 or 2005 the first applicant arrived in Russia to join his parents and siblings, all Russian nationals, who resided in the town of Perm.

In July 2005 the first applicant met the second applicant, and as of November 2008 they started living as a family in Perm, with her child from a previous marriage. In November 2011 they had a daughter; the first applicant was not registered as her father on the birth certificate.

The applicants lived together with the two children and worked together in their family car repair shop, which they opened in 2012. Together they owned three vehicles and the technical equipment for the business. According to the applicants, the first applicant was the family breadwinner and the managing partner of the family car repair business.

In August 2018 the first applicant drove to Belarus in the hope of having his expired Belarusian passport renewed, but to no avail. On 30 August 2018 he returned to Russia.

On 1 September 2018 the first applicant was arrested at home and taken to the police, where he was charged with a violation of Article 18 § 1.1 of the Code of Administrative Offences (“the COA”) ‑ failure to comply with residence regulations for foreigners in Russia and overstaying the time allowed.

On 3 September 2018 the police took the first applicant to the Sverdlovskiy District Court in Perm (“the District Court”). At the hearing he admitted his guilt and stated that his common-law wife, the second applicant, and their minor daughter, as well as the second applicant ’ s child who lived with them, were Russian nationals and that his removal from Russia would disrupt their family life.

On the same date, 3 September 2018, the District Court examined his case and found the first applicant guilty of having breached the above ‑ mentioned provision of the COA, fined him 2,000 Russian roubles (RUB) (about 30 euros (EUR)) and ordered his administrative removal (expulsion) from Russia, entailing a five-year re-entry ban. As for the first applicant ’ s allegations of the disruptive effect of the removal on his family life, the court left them without examination. Pending removal, the first applicant was placed into custody.

The first applicant appealed against the above judgment to the Perm Regional Court (“the Regional Court”), alleging that his removal from Russia would, inter alia , disrupt his family life with the second applicant and their children on account of the subsequent five-year re-entry ban. He also stated that he was a self-employed business owner, that he was the family breadwinner and that all his other relatives, that is to say his parents and siblings, also resided in Russia. Finally, he stated that he had neither personal connections nor family left in Belarus, and that he had neither a place of residence, nor means to reside in that country if expelled there.

On 19 September 2018 the Regional Court upheld the expulsion order. It stated that even though the first applicant, as a national of Belarus, had enjoyed the special immigration regime due to the bilateral agreements between the countries, he had resided in Russia on the basis of the expired passport. As for his arguments regarding the adverse effect of the expulsion with its five-year re-entry ban, the court stated as follows:

“... the case file does not contain information showing steady family life of S. Smirnov [the first applicant] with the Russian national [the second applicant]. Thus, there are no grounds to claim that his removal would interfere with their family life... Nor there is evidence that S. Smirnov has a minor child, participates in her upbringing or materially supports her ...

In addition, the case file shows that S. Smirnov has been living in Russia since 2003 without duly registering his immigration status, and that up to the time of his arrest he had not taken any steps to legalise that status; he has no source of income, officially unemployed, which shows that he ignored the country ’ s law and order; ...”

On 5 December 2018 the first applicant was deported from Russia. Due to the imposition of the administrative removal, his re-entry into the Russia is banned for five years from the date of the removal.

For the relevant domestic law and practice, see Muradeli v. Russia (no. 72780/12, §§ 45-55, 9 April 2015).

COMPLAINT

The applicants complain under Article 8 of the Convention that the decision to remove the first applicant and the five-year entry ban was a disproportionate punishment for the administrative offence committed by him, and that the domestic courts failed to examine their submissions concerning the adverse effect of the first applicant ’ s expulsion on their family life.

QUESTIONS TO THE PARTIES

Did the exclusion order issued on 3 September 2018 in respect of the first applicant constitute an interference with the applicants ’ right to respect for their family life within the meaning of Article 8 of the Convention? Did the domestic courts duly examine the first applicant ’ s allegation of the adverse effect of the exclusion order on the applicants ’ 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)?