Communicated on 6 January 2021 Published on 25 January 2021

THIRD SECTION

Application no. 12454/19 Abdelkarim Osama Gaber Akhmed ELDESUKI against Russia lodged on 3 March 2019

STATEMENT OF FACTS

The applicant, Mr Abdelkarim Osama Gaber Akhmed Eldesuki , is an Egyptian national, who was born in 1991 and lives in Salmiya, Kuwait. He is represented before the Court by Mr A. Glazov, a lawyer practising in Izhevsk.

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

On an unspecified date prior to 2013 the applicant arrived in Russia. In September 2013 he married a Russian national Ms E.T.

On 20 May 2016 the applicant received a temporary residence permit and on 1 December 2017 he received a permanent residence permit valid for five years, until 1 December 2022. In December 2017 the applicant applied for Russian nationality.

In March 2018 the applicant and his wife had a son, also a Russian national.

On 23 March 2018 the Federal Security Service (“the FSB”) sent a letter to the Udmurtia Ministry of the Interior (“the police”) concerning the undesirability of the applicant ’ s presence in Russia on national security grounds and demanding to revoke (annul) his residence permit.

On 11 April 2018 the police revoked the applicant ’ s residence permit and on 12 April 2018 they rejected his application for Russian nationality.

On 16 April 2018, while the family was on vacation abroad, their relatives received a letter from the police informing the applicant of the decision of 11 April 2018 to annul his residence permit owing to the threat he posed to Russia ’ s national security. No other information concerning the grounds for the annulment was given.

On 10 May 2018 the applicant brought proceedings against the Udmurtia police and appealed against the revocation order of 11 April 2018 and the rejection of his citizenship application of 12 April 2018 to the Oktyabrskiy District Court in Izhevsk (“the District Court”).

In his appeal the applicant stated, in particular, that the revocation of his residence permit deprived him of lawful grounds to stay in Russia and that it would disrupt his family life with his wife and minor child, both of whom were Russian nationals, and that the reasons for his exclusion were unknown to him.

On 24 May 2018 the District Court examined the appeal and rejected it. In its decision, it did not cite any documents submitted by the FSB as serving as the basis for the exclusion, apart from noting that the measure had been imposed on the basis of the relevant recommendation of the FSB. The court neither specified the nature of the data serving as the basis for the revocation of the applicant ’ s residence permit, nor provided any details regarding its origins or the circumstances of its collection.

As to whether the exclusion order amounted to an interference with the applicant ’ s family life, the court stated that:

“... the fact that Mr Eldesuki has a wife and a minor child, both of whom are Russian nationals residing in the Russian Federation, does not lead to a violation of his right to respect for family life on the basis of the decisions taken, as the revocation of the residence permit and the rejection of the citizenship application do not lead to his enforced removal from Russia. It defines his obligation to leave Russia, which does not preclude him from re-entering the Russian Federation and filing a new application for residence permit ...”

The applicant appealed the above decision to the Udmurtia Supreme Court stating, amongst other things, that his exclusion from Russia would disrupt his family life and that the reasons for his exclusion were unknown to him.

On 1 August 2018 the Udmurtia Supreme Court rejected the appeal having endorsed the findings of the District Court.

The applicant ’ s representative lodged a cassation appeal with the Presidium of the Udmurtia Supreme Court referring to the same grounds that is the lack of any proof or information concerning the nature of the threat the applicant allegedly posed to Russia ’ s national security and the adverse effect of the exclusion caused by the revocation of the residence permit on the applicant ’ s family life.

On 27 September 2018 the judge of the Udmurtia Supreme Court refused to transfer the cassation appeal to the Administrative Chamber of the court for examination on the merits and upheld the revocation of the applicant ’ s residence permit and the rejection of his citizenship application.

On 9 January 2019 the Russia Supreme Court refused to transfer the second cassation appeal to the Administrative Chamber of the Court and upheld the revocation of the residence permit.

It appears that the applicant resides in Kuwait at the moment . It is unclear whether he resides there with his family and whether he tried to re-enter Russia or applied for a Russian visa or a new Russian residence permit.

For the relevant domestic law and practice see Liu v. Russia (no. 2), no. 29157/09, §§ 45-52, 26 July 2011, and for a summary of relevant Council of Europe material see Gablishvili v. Russia , no. 39428/12, § 37, 26 June 2014.

COMPLAINT

The applicant complains under Article 8 of the Convention that the revocation of his Russian residence permit on national security grounds was based on undisclosed information, that the domestic court failed to duly examine the reasons thereof, and that it violated his right to respect for family life.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention?

Was the classified information from the Federal Security Service (“the FSB”) disclosed to the applicant or his representative? Did the domestic courts give the applicant a fair and reasonable opportunity to refute the facts and findings contained in that material? Did they examine other evidence to confirm or refute the allegations against the applicant? Did he have an opportunity to have witnesses questioned or present other evidence? 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?

2. The Government are invited to clarify what were the motives and factual grounds for the recommendation of 23 March 2018 by the FSB to declare the applicant ’ s presence in Russia undesirable? Was it declared undesirable for a limited period of time ? What was the scope of review of the domestic courts who examined the appeals against the exclusion order? Was the scope of the judicial review limited to ascertaining whether the exclusion order had been delivered in accordance with the procedure prescribed by law and , in particular, whether the material which formed its basis had been issued within the competence of the FSB? Was it within the courts ’ competence to verify whether the exclusion order was based on genuine national security grounds and whether the executive 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?

3. The Government are invited to produce copies of the following:

- documents from the FSB which served as the basis for the recommendation of 23 March 2018 (the Court notes that access to those documents may be restricted pursuant to Rule 33 §§ 1 and 2 of the Rules of Court);

- documents with references to the relevant legislation showing the list of national authorities authorised to issue re-entry bans based on national security considerations as well as the grounds and time frame for periodical/regular reviews of the bans imposed;

- documents pertaining to the reasons for the applicant ’ s exclusion and reflecting his current immigration status; documents showing when and under what conditions the applicant could re-enter Russia and if so, whether he could be granted a residence permit there;

- documents showing the possibility for an individual whose presence was declared undesirable on national security grounds to re-enter Russia and if so, to answer under what conditions and within what time frame;

- documents illustrating the cases in which such individuals were able to successfully re-enter Russia and obtain a residence permit there.