Communicated on 6 July 2020 Published on 27 July 2020

THIRD SECTION

Application no. 62812/19 N.K . against Russia lodged on 29 November 2019

STATEMENT OF FACTS

The applicant, Mr N. K., is a national of Uzbekistan, who lives in Russia. He is represented before the Court by Mr A.I. Ryzhov , a lawyer practising in Moscow.

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

On an unspecified date in 2005 the applicant moved to Russia with his wife, Ms N.T., and two sons, who were born shortly before that. All of the applicant ’ s family members were also Uzbek nationals.

In 2010 and 2012 the applicant and his wife had a daughter and a son, respectively. The two older sons went to school in Russia and then to university respectively, while the two younger children went to school in Russia.

In 2014 the applicant sold his property in Uzbekistan and bought a house and a plot of land in Russia. The applicant and his family members lived in Russia based on temporary residence permits. The applicant ’ s residence permit was valid until autumn 2019. The applicant was the family breadwinner, while his wife was a homemaker.

On 18 August 2018 the applicant with his family was returning to Russia from Kazakhstan via Uralsk border control department of the Federal Security Service (the FSB) in the Orenburg Region. The applicant ’ s family members were allowed to re-enter Russia while he was denied re-entry. According to the notice handed to the applicant at the border crossing, he was subject to exclusion from Russia. He was told that his residence permit was revoked and that he was banned from re-entering Russia until January 2037, on the basis of a report from the Saratov Federal Security Service. No other explanation was given.

In October 2018 the applicant, through his representative, lodged an appeal against the exclusion with the Mezchanskiy District Court of Moscow (hereinafter “the District Court”) against the FSB and the Department of the Federal Migration Service (the FMS) in the Orenburg Region.

In his appeal, the applicant requested that the exclusion be overruled and the ban lifted as this measure had adversely affected his family life. The applicant stated, in particular, that he was a law-abiding citizen, that he had property in Russia, that he was employed and that he was his family ’ s breadwinner. He stressed that his wife and four children, who had spent all their lives in Russia, were fully dependent on him. He added that he had no record of administrative violations or criminal offences and that he was unaware of the reasons for his exclusion.

Finally, the applicant also requested that the court oblige the FSB to prove him with a copy of the decision banning his re-entry into the Russian Federation.

In October 2018, upon request of the FSB, the District Court forwarded the applicant ’ s appeal to the Moscow City Court (hereinafter “the City Court”) as under the domestic regulations regional courts were to examine cases involving State secrets.

In December 2018 the City Court examined the appeal and rejected it. In its decision, the court did not refer to any documents, which had served as the basis for the impugned decision, other than mentioning that the measure had been imposed following the FSB ’ s recommendation of 1 March 2018 approved on 15 March 2018, according to which the applicant represented a threat to Russia ’ s national security. The court further noted that

“... the recommendation listed concrete facts and materials proving this information. The court does not have any reasons not to trust this information as it has not been refuted by anybody. Therefore, the court found objective confirmation of the fact that activities of Mr N.K. threaten national security of the Russian Federation ...”

The court also noted that the FMS was the proper authority to impose the measure and that the relevant procedure had been complied with.

The applicant ’ s counsel appealed against the above-mentioned decision to the Administrative Cases Chamber of the Russia Supreme Court (the Supreme Court), stating, amongst other things, that the City Court had unlawfully refrained from judicial scrutiny of the factual circumstances, which had served as the basis for the measure imposed on the applicant. He further stated that no evidence whatsoever had been produced in order to prove that the applicant posed a security threat, and he had been given no opportunity to refute those allegations. No explanation was given as to the necessity of the use of such a “preventive measure” against the applicant as his exclusion from Russia for nineteen years. Lastly, he argued that the City Court had failed to properly examine the interference with the applicant ’ s family life and to balance the interests at stake.

In May 2019 the Supreme Court upheld the City Court decision, stating that the City Court had duly examined the necessary legal basis for the measure and that its decision had been lawful and reasonable. As for the interference with the applicant ’ s right to respect for family life, the court left the issue without examination.

The applicant ’ s lawyer further appealed against the decision to the Supreme Court via the supervisory review procedure.

In September 2019 the Supreme Court upheld the decision of the City Court having stated in general terms that “measures taken by the Federal Security Service in respect of Mr N.K. pursue the lawful aim of the defence of national security, they are balanced, necessary and do not disclose a violation of the applicant ’ s lawful rights”. The decision refused to further transfer the appeal for the examination on its merits by the Presidium of the Supreme Court.

From the documents submitted it appears that the applicant resides outside of Russia while his family continues to reside in Russia.

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.

COMPLAINTS

The applicant complains under Article 8 of the Convention that the annulment of his Russian residence permit on national security grounds and the nineteen year ban on his re-entry into the country was based on undisclosed information; that the domestic courts failed to duly examine the reasons therefor and to balance the interests at stake and that the sanction violated his right to respect for his 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, as alleged by the applicant?

2. What was the scope of review of the domestic courts, which examined the applicant ’ s appeals against the exclusion order? Was 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 Federal Security Service? 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? 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?

3. Was the classified information from the Federal Security Service 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?

4. What were the motives and factual grounds for the recommendation of 1 March 2018 approved on 15 March 2018 by the Federal Security Service to declare the applicant ’ s presence in Russia undesirable?

The Government are invited to produce a copy of the materials from the Federal Security Service, which served as the basis for that recommendation. The Court notes that access to those documents may be restricted pursuant to Rule 33 §§ 1 and 2 of the Rules of Court.

5. The Government are requested to provide a copy of the documents pertaining to the reasons for the applicant ’ s exclusion and reflecting his current immigration status, as well as of the 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.

6. The Government are requested to provide copies of 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 review of the bans imposed.

7. The Government are also requested to provide copies of documents showing examples of cases in which an individual whose presence was declared undesirable on national security grounds successfully appealed against the impugned measure, was able to re-enter the Russian Federation and if so, under what conditions and within what time-frame.