Communicated on 6 January 2021 Published on 25 January 2021

THIRD SECTION

Application no. 56738/19 Sanur Akhmadi Kyzy SULTANOVA and Magomed Sultanovich SULTANOV against Russia lodged on 19 October 2019

STATEMENT OF FACTS

The applicants, Ms Sanur Akhmadi Kyzy Sultanova and Mr Magomed Sultanovich Sultanov , are nationals of Azerbaijan and Russia respectively. The first applicant was born in 1980 and the second applicant in 1972. They live in Kultayevo , in the Perm Region. The applicants are represented before the Court by Mr B. Ponosov , residing in Ocher .

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

In 2001 the applicants married in Azerbaijan and in July 2001 they moved to Russia as a family. In 2002 and 2004 the applicants had two sons. Both of them were Russian nationals; they lived their entire lives in Russia and went to school in Perm.

The second applicant was a business owner and the family breadwinner, while the first applicant was a housekeeper. It appears that she resided in Russia on the basis of a bilateral Azerbaijan-Russian visa-free agreement authorising a visa-free stay in Russia for ninety out of one hundred and eighty days. In order to comply with the immigration regulations, the first applicant had to leave Russia regularly for Azerbaijan, where her parents lived.

According to the applicants, during eighteen years of their lives in Russia, they lost cultural and economic ties with Azerbaijan; both of their sons lived their entire lives in Russia and did not speak Azeri. Neither applicant has a place to live in Azerbaijan or owns a residential property there.

On 1 September 2018 the second applicant returned to Russia after a ninety-day absence. Her stay in the country was authorised until 29 November 2018. On an unspecified date between 1 September and 29 November 2018 she applied for a temporary residence permit with the immigration department of the Perm district police in Perm. However, for unknown reasons, her documents were kept by the immigration authority until April 2019 and returned to her without issuance of the permit. Meanwhile, she stayed in the country unlawfully awaiting the outcome of her permit application.

On 16 April 2019 the first applicant was detained for a breach of Article 18.8 of the Code of Administrative Offences (living on Russian territory without a valid residence permit or non-compliance with the established procedure for residence registration) and taken to the Industrialniy District Court in Perm. On the same date the court ordered that she be fined 4,000 roubles (RUB) (about 55 euros) without administrative removal. The court noted that she was married to a Russian national, the second applicant, with whom she had two children who were also Russian nationals, and concluded that the first applicant had strong family and cultural ties with Russia. Therefore, her removal from the country entailing the automatic five-year re-entry ban would disrupt her family life. The first applicant paid the fine.

After the above decision entered into force on 30 April 2019, the first applicant tried to re-apply for a residence permit but was denied as her stay in Russia remained unregularised . According to the applicant, the immigration authority in Perm told her that in order to regularise her immigration status and be eligible to apply for the permit again, she had to leave Russia and re-enter on legitimate grounds.

According to the applicants, between 1 and 31 May 2019 the first applicant remained in Russia as the exact time frame for her departure after the payment of the court ’ s fine of 16 April 2019 was specified neither in the court ’ s decision, nor in any of the applicable administrative regulations. Therefore, she stayed in Russia until the end of May 2019, taking care of her sons who were finishing the school year.

On 31 May 2019 the first applicant left Russia for Azerbaijan with the aim to regularise her immigration status upon her return after the ninety-day absence.

On 1 September 2019 the first applicant returned to Russia in time for the beginning of her sons ’ school year. Her stay in the country was authorised for another ninety days.

On 9 October 2019 the Perm District Court in Perm (the District Court) found the first applicant guilty again of a breach of Article 18.8 of the Code of Administrative Offences for her unlawful stay in Russia between 1 and 30 May 2019. In its decision, the court referred to the repeated nature of the violation, the lack of the first applicant ’ s employment and a source of income. The court noted that in the first applicant ’ s absence due to her removal from Russia, her husband, a Russian national, would be able to take care of their sons. In addition, all of her family members could move to Azerbaijan. The court ordered that the first applicant be subjected to administrative removal from Russia via the controlled departure procedure with the five-year re-entry ban (exclusion order), as well as payment of a fine of RUB 3,000 (about EUR 40).

The first applicant appealed against the exclusion order asking for it to be overruled as it represented a disproportionate interference with her family life. She stated that her husband and under-age sons were Russian nationals, who lived their lives in Russia. Her sons did not speak Azeri and went to school in Russia. The second applicant was the family breadwinner, which allowed the first applicant to be the housekeeper and take care of their children. Neither she, nor her husband had a place to live in Azerbaijan. The first applicant stressed that she had complied with the decision of 16 April 2019 and left Russia on 31 May 2019. The period for her departure after the payment of the fine was not specified therefore, she had left the country as soon as the opportunity had presented itself. Finally, referring to the length of the re-entry ban, the first applicant stated that her exclusion from Russia for five years would completely disrupt her family life.

On 23 October 2019 the Perm Regional Court rejected the appeal and upheld the exclusion order. In its decision, the court stated:

“having children and a registered marriage to a Russian national does not absolve a foreign national from complying with the law on the terms of a temporary stay in the Russian Federation ...”

It referred to the repeated nature of the immigration violation, as well as the first applicant ’ s failure to take steps to regularise her immigration status. In further noted that in the first applicant ’ s absence, her husband could take care of their sons.

On 23 October 2019 the exclusion order became final and enforceable.

It is unclear whether the first applicant has been subjected to the administrative removal from Russia and if so, under what circumstances.

For relevant domestic regulations, see Guliyev and Sheina v. Russia , no. 29790/14, §§ 25-34, 17 April 2018.

COMPLAINT

The applicants complain under Article 8 of the Convention that the decision to remove the first applicant and the subsequent five-year entry ban was a disproportionate punishment for the administrative offence committed by her, 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

1. Did the exclusion order issued on 9 October 2019 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)?

2. What was the time frame indicated to the first applicant for leaving the Russian Federation in order to comply with the decision of 16 April 2019? What was the procedure for her to regularise her immigration status in Russia to comply with that decision?

3. The Government are requested to provide copies of the relevant documents including a copy of the material pertaining to the first applicant ’ s administrative removal from Russia.