Communicated on 24 October 2017

THIRD SECTION

Application no. 1098/14 Mokhammad Daud NASYERI and Marina Yevgenyevna NASYERI against Russia lodged on 16 December 2013

STATEMENT OF FACTS

The applicants, an Afghan national, Mr Mokhammad Daud Nasyeri (also spelt Mohammad Daud Naserie ), and a Russian national, Ms Marina Yevgenyevna Nasyeri , were born in 1974 and 1977 respectively and live in Saint Petersburg. They are represented before the Court by Ms O. Tseytlina , a lawyer practising in Saint Petersburg.

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

A. The first applicant ’ s residence in Russia

1. The first applicant ’ s family life in Russia and requests for asylum

In 1995 the first applicant arrived in Russia. Between 1995 and 2000 he lived there without authorisation. At some point during that period he started cohabitating with the second applicant. In December 2000 the couple had their first daughter, L.N.

On 22 August 2001 the first applicant married the second applicant. In June 2005 their second daughter, M.N., was born.

Between 21 May 2001 and 8 May 2008 the first applicant had temporary asylum in Russia; his regular annual requests were granted by the St Petersburg Federal Migration Service (“the FMS” hereinafter).

On 8 May 2008 the first applicant lodged another request for temporary asylum. On 6 June 2008 the FMS rejected it on the basis that he could have applied for Russian nationality, given that he was married to a Russian national. In addition, he had provided false information about the circumstances of his life in Russia. He did not appeal against the refusal.

Between June 2008 and May 2012 the first applicant resided in Russia illegally.

On 17 May 2012 he again applied for temporary asylum.

On 20 August 2012 the Saint Petersburg FMS informed him that his request had been refused on 16 August 2012 for the following reasons. His previous requests for asylum were said to have contained divergent information about his life in Afghanistan. Furthermore, after the last refusal to grant him asylum in 2008, he had stayed in Russia illegally for three years and nine months, during which time he had failed to take steps to either regularise his stay or leave the country. The fact that he was married to the second applicant and that they had two children could not serve as the basis for granting the request. Given the latest information on the improvements in the political situation and life in Afghanistan, his request for asylum had been motivated only by his desire to legalise his status in Russia. The FMS informed him that without legal grounds to remain in Russia he was obliged to leave the country within three days of the date of the refusal. If he failed to leave, he would be subjected to deportation or administrative removal, which would entail a subsequent five-year re-entry ban.

On 13 November 2012 the Russian FMS upheld the refusal. It stated, in particular, that nothing precluded the first applicant from leaving Russia and requesting a Russian visa in Afghanistan on the basis of an official invitation from his wife.

It appears from the applicants ’ submissions that the first applicant lost contact with his family and friends in Afghanistan, was fully integrated into Russian society and would have no employment or sources of income if he returned to Afghanistan. It also appears that the second applicant and the two daughters would be unable to move there on account of, amongst other things, their religious and linguistic differences.

2. Court appeals against the refusals to grant the first applicant asylum

On 12 October 2012 the first applicant appealed before the Dzerzhinsky District Court in Saint Petersburg (“the District Court”) against the refusal of 16 August 2012. He stated that he had been living in Russia since 1995 and that between 2002 and 2008 the Russian immigration authorities had recognised the risk of his returning to Afghanistan and had granted him temporary asylum. He further stressed that he had family in Russia and that the refusal to grant him asylum implied that he had no legal grounds for the stay, therefore he could not apply for a residence permit for five years and would be obliged to leave Russia with a subsequent five-year re-entry ban. The refusal to grant him asylum was de facto a removal order and represented a disproportionate measure, given his family life in Russia. The first applicant stressed that it would be dangerous for his wife and daughters to follow him to Afghanistan as they were not Muslim and did not live under Sharia law as was required in the country. In addition, neither his wife nor daughters spoke any of the languages commonly spoken in Afghanistan so would be unable to work or study there. The first applicant stressed that he could not apply for a Russian visa in Afghanistan, as he could not leave Russia legally and obtain the visa owing to his current illegal status.

On 3 April 2013 the District Court dismissed the first applicant ’ s appeal, stating, amongst other things, that the refusal to grant him asylum did not mean that he could not have legalised his immigration status by other means, such as applying for a temporary residence permit, especially given that his wife was a Russian national. Taking into account that he had been residing in Russia illegally and had not taken any steps to regularise his status, his request for asylum had to be rejected.

The first applicant appealed before the Saint Petersburg City Court (“the City Court”) against the refusal. He stated, in particular, that without legal grounds to remain in Russia, he was unable to apply for a residence permit and that the refusal to grant him asylum would entail his deportation from Russia to Afghanistan, where his Russian wife and two daughters could not join him. His deportation from Russia after having stayed there without legal grounds implied a five-year re-entry ban that would disrupt his family life.

On 29 July 2013 the City Court dismissed the first applicant ’ s appeal and upheld the refusal to grant him temporary asylum. As to his complaint concerning the adverse effect of the refusal on his family life, the court stated, inter alia , that having a wife and young children was not a valid reason for granting him asylum.

B. Relevant domestic and international law

1. The 1951 Convention Relating to the Status of Refugees

This convention was ratified by Russia on 2 February 1993. Article 33 provides as follows:

“1. No Contracting State shall expel or return ( ‘ refouler ’ ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”

2. Administrative removal of foreign nationals

Part 3 of Article 18.8 of the Administrative Offences Code of the Russian Federation provides that a foreign national who infringes the residence regulations of the Russian Federation, by living in Moscow and Saint Petersburg without a valid residence permit or by failing to comply with the established procedure for residence registration, will be liable to an administrative fine of 5,000 to 7,000 roubles and administrative removal from the Russian Federation.

3. Deportation from, or refusal of entry into, the Russian Federation

Part 2 of section 27 of Law no. 114-FZ of 15 August 1996 on the Procedure for Entering and Leaving the Russian Federation, as amended on 27 July 2013, (“the Entry Procedure Act”) provides that a foreign national who has been deported or administratively removed from Russia may not re-enter the country during the five-year period following the deportation or administrative removal.

4. Residence permits for foreign nationals

Until 2002 temporarily resident foreign nationals were not required to apply for a residence permit. Their presence in Russia was lawful as long as their visa remained valid. On 25 July 2002 Law no. 115-FZ on the Legal Status of Foreign Nationals in the Russian Federation (“the Foreign Nationals Act”) was passed. It introduced the requirement of residence permits for foreign nationals.

A foreign national married to a Russian national living on Russian territory is entitled to a three-year residence permit (section 6 §§ 1 and 3 (4)).

A three-year residence permit ( разрешение на временное проживание ) may be refused only in exceptional cases, for example where the foreign national advocates a violent change to the constitutional foundations of the Russian Federation or otherwise creates a threat to the security of the Russian Federation or its citizens (section 7(1)(1)).

Section 7(1 )( 3) provides that a temporary residence permit may not be issued to a foreign national who has been deported from Russia within the last five years.

In decision no. 86-AD05-2 of 7 December 2005 the Supreme Court of Russia considered that it was incumbent on the national courts to examine whether enforcement of a deportation order was compatible with Article 8 of the Convention. Given that section 7 of the Foreign Nationals Act prevented a deportee from applying for a temporary residence permit for five years, “a serious issue [could] arise as to an interference with [the persons ’ ] right to respect for their family life”. In another decision, the Supreme Court varied its reasoning, stating that enforcement of a deportation order “results in the violation of fundamental family ties and impedes the family ’ s reunification” (decision no. 18-AD05-13 of 24 January 2006). The Supreme Court subsequently considered that a deportation order should be based on considerations which confirm the need for such a measure “as the only possible way of ensuring a fair balance between public and private interests” (decision no. 86-AD06-1 of 29 March 2006).

COMPLAINTS

The applicants complain under Article 8 of the Convention that the Russian authorities ’ refusal to grant the first applicant asylum entailed his deportation or administrative removal along with a subsequent five-year re ‑ entry ban and, therefore, violated his right to respect for family life.

QUESTIONS TO THE PARTIES

1. The Government are invited to comment on the applicants ’ allegation that the first applicant ’ s deportation or administrative removal is an automatic consequence of the refusal to grant him asylum. The Government are also invited to provide copies of documents reflecting the first applicant ’ s deportation or administrative removal from Russia.

2. The Government are invited to comment on whether the five-year re ‑ entry ban as provided for in Part 2 of section 27 of the Entry Procedure Act (as amended on 27 July 2013), is applicable to the first applicant even if he left Russia voluntarily after the refusal to grant him asylum? If so, would the application of this ban in the applicants ’ case be compatible with Article 8 of the Convention?

3. Have the Russian authorities in the present case complied with their positive obligation under Article 8 of the Convention (see Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 105-07, 3 October 2014) ?