Communicated on 15 May 2018

THIRD SECTION

Application no. 57750/17 Samuel EZE against Sweden lodged on 26 July 2017

STATEMENT OF FACTS

The applicant, Mr Samuel Eze , is a Nigerian national, who was born in 1993. He is represented before the Court by Ms M. Harr, a lawyer practising in Örebro .

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

In August 2010, after having participated in a football tournament in Denmark, the applicant applied for asylum in Sweden, stating that his name was Samuel Obi. He alleged that, if returned to Nigeria, he might fall victim to a bloody land conflict between his home village and the neighbouring village. As proof of identity, he submitted a membership card in a student association which did not indicate his birth date. He claimed, however, that he was born on 16 November 1994. In October 2010, the applicant submitted a document from the High/Magistrate ’ s Court of Lagos State, dated 1 September 2010, according to which he had declared that he had lost his birth certificate but that he had been informed by his parents that he was born on 16 November 1991.

On 21 December 2010 the Migration Agency ( Migrationsverket ) rejected the application for asylum and ordered the applicant ’ s deportation to Nigeria. The Agency found it odd that the applicant could not properly remember his birth year. It concluded that he had failed to plausibly show his identity but had made it probable that he originated from Nigeria. Furthermore, the Agency found many of the applicant ’ s statements – concerning his schooling, his travel to Sweden and his involvement in the land conflict – to be vague and contradictory. It further noted that he had not sought protection from Nigerian authorities. In the Agency ’ s view, those authorities were sufficiently able and willing to protect the applicant from criminal acts.

The applicant appealed and submitted, among other things, a certificate of 19 January 2011 from the Nigerian Embassy in Stockholm, stating that his name was Samuel Obi and that he was born on 16 November 1991. It also indicated the applicant ’ s home village.

On 23 August 2011 the Migration Court ( Migrationsdomstolen ) upheld the Migration Agency ’ s decision. Essentially agreeing with the Agency ’ s reasoning, the court found that the applicant had failed to show that he risked ill-treatment upon return. It further agreed with the Agency that he had not sufficiently demonstrated his true identity, despite the certificate from the Embassy.

The Migration Court of Appeal ( Migrationsöverdomstolen ) refused the applicant leave to appeal on 25 October 2011.

In May 2011 the applicant met Ms Therese Jakobsson , a Swedish citizen with whom he started a relationship. They married in Sweden on 30 June 2012. The couple later travelled to Nigeria to apply for a Swedish residence permit for the applicant based on family ties.

On 17 September 2012 the applicant applied for a residence permit at the Swedish Embassy in Abuja. He now stated that his name was Samuel Eze and that he was born on 16 November 1993. He submitted a Nigerian passport, issued on 16 April 2009, containing this information and a picture of him, and explained that he had not used his passport and his real identity when initially applying for asylum as people he had met had advised him not to.

On 25 October 2012 the Migration Agency ( Migrationsverket ) rejected the application for a residence permit, finding that he had not proved his identity, which is a legal requirement for the grant of a permit based on family ties. The Agency noted the discrepancy between the information provided by the 2009 passport and that given in the 2011 certificate from the Nigerian Embassy in Stockholm which, the applicant had acknowledged, had been issued entirely on the basis of information provided by him. The Agency therefore concluded that there was reason to call into question that the passport had been issued following a careful control of the applicant ’ s identity.

The applicant subsequently submitted a copy of his birth certificate to the Migration Agency. The Agency therefore re-examined the matter and, by a decision of 29 October 2012, granted the applicant a temporary residence permit until 15 April 2014, the expiry date of his passport and thereby, under Swedish law, the limit for the validity of the permit. The Agency stated that, through the submission of his birth certificate, the applicant had proved his identity.

On 22 March 2014 the applicant applied for an extension of his residence permit and submitted, among other things, a newly issued passport. However, when the authenticity of that passport was checked by the Migration Agency, it turned out that it was a forgery. The applicant claimed that he had contacted the Embassy in Stockholm to get a new passport but had been informed that, due to a technical problem, no passports could be issued by the Embassy; instead, the applicant should contact the Nigerian immigration service in the matter. When he later got in touch with an employee at that authority, he had been told that he did not need to travel to Nigeria to have a new passport issued; it would be sent to his home address in Sweden. The applicant stated that he did not know that the passport he had later received and had submitted to the Agency was fake .

On 24 June 2015 the applicant and his wife had a son, of which they have joint custody.

On 19 August 2016 the Migration Agency rejected the application for an extension of the residence permit, following interviews conducted with the applicant and his wife in November 2015. It found that the applicant had failed to prove his identity. It took into account the diverging identity information given by him in support of his several applications, which had included the submission of two family names, three birth years and two birth places, differing descriptions of his family in Nigeria, several documents which had proved to contain untrue information and a birth certificate which had previously been declared lost. The Agency concluded, due to the applicant ’ s incoherent submissions made in regard to his identity and the fact that the new passport was a forgery, that the expired passport together with the birth certificate, which had once been accepted as sufficient evidence, could no longer serve as proof of his identity. On the same basis, it even considered that the applicant had failed to make his identity plausible. The Agency also took into account that he had chosen not to travel to Nigeria to obtain an authentic passport, although advised to do so by the Agency. Furthermore, it found that there were no particularly distressing circumstances suggesting that the applicant should anyway be allowed to remain in Sweden. It noted in that respect that the he had family in Nigeria and had no health problems, and that his wife had previously visited Nigeria with him and thus could travel to that country again with their son. The Agency also examined the case under Article 8 of the Convention, having regard to Strasbourg case-law, and considered, on the basis of the above-mentioned circumstances, that, although the applicant ’ s deportation would interfere with his right to respect for his family life, it would not involve a violation of that right.

The applicant appealed to the Migration Court. Later, he travelled to Nigeria and had a new passport issued on 16 November 2016. On 6 December 2016 the Swedish Embassy in Abuja refused the applicant an entry visa to Sweden. The passport was sent to the court on 14 December 2016.

The Migration Agency, in an opinion requested by the court, argued that the appeal should be rejected. It stated that it was unclear on the basis of which documents and oral statements the new passport had been issued and that therefore, having regard to the previously submitted identity documents which had turned out to be false, it could not be used to establish the applicant ’ s identity.

The applicant replied that, in order to get the new passport, he had been required to submit the old expired passport and an application for a new passport and to be present in person when applying. Moreover, his fingerprints had been registered at the time of an earlier passport application and the Nigerian authorities thus had been able to confirm the applicant ’ s identity. The applicant pointed out that the forged passport had not contained any incorrect information about his identity; it included the same data as the passport issued in 2009 and the new one issued in 2016. He also asserted that, as the Migration Agency had not examined the authenticity of the new passport, it could not reasonably claim that it was not authentic. Furthermore, the Agency ’ s position meant that he had no means left to prove his identity. In any event, he had made his identity plausible and should be relieved of the burden to prove that identity due to his right to family reunification and to the principle of the best interests of the child.

On 30 January 2017 the Migration Court rejected the applicant ’ s appeal. It found that the applicant had not proved his identity; his assertions that the newly submitted passport had been properly issued by a competent authority was not enough to accept it, in particular as he had previously submitted a forged passport and as he had sought asylum in 2010 under a different identity. The court also considered that the applicant should not be granted an exception from the requirement of proven identity, as the fault for the failure to properly establish his identity was entirely his own. Moreover, it agreed with the Agency that the case did not reveal any particularly distressing circumstances or any violation of Article 8 of the Convention.

The applicant appealed and pointed out that the Migration Court, like the Migration Agency, had rejected the new passport without having examined its authenticity.

On 7 March 2017 the Migration Court of Appeal refused the applicant leave to appeal.

It appears that the applicant remains in Nigeria. He sees his son once or twice a year when his wife travels to Nigeria with him.

COMPLAINT

The applicant complains, under Article 8 of the Convention, that the refusal to grant him a residence permit has led to the disruption of his family life, as he is unable to live with his wife and young son. The measure taken against him is allegedly disproportionate, given that he has proved his identity by submitting an authentic Nigerian passport in the original to support his application for an extension of his residence permit.

QUESTION TO THE PARTIES

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