Communicated on 21 September 2016

THIRD SECTION

Application no. 23270/16 Said Mohamed ABOKAR against Sweden lodged on 20 April 2016

STATEMENT OF FACTS

The applicant, Mr Said Mohamed Abokar , is a Somali national, who was born in 1986 and lives in Italy. He is represented before the Court by Ms V. Nyström , a lawyer practising in Norrköping .

The circumstances of the case

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

The applicant has a residence permit and refugee status in Italy. He married A through a religious ceremony on 15 May 2011 and a civil ceremony on 6 April 2013. Their marriage is registered in Sweden. A is a Somali national who has a permanent residence permit in Sweden. The applicant and A have two children together: B, born on 27 April 2012, and C, born on 21 July 2014. The applicant and A are registered as the legal guardians of B and C. The applicant met A for the first time in Somalia in 2005, but they were then only friends and never lived together in that country. In 2011 they met in Sweden by coincidence. A has a handicap in that she misses one arm.

The applicant arrived in Sweden on 25 June 2010 and applied for asylum using the identity Abdirahman Mohamed Abukar , born on 22 February 1990. The Migration Board ( Migrationsverket – hereafter “the Board”) dismissed his application on 23 August 2010 and decided to transfer him, in accordance with the Dublin Regulation, to Italy where he had applied for asylum on 5 June 2009. It was also noted that he had applied for asylum in Finland on 18 January 2010 and that he had spent time in Sweden during 2009, using his present identity and without registering. His transfer case was handed over to the police on 14 September 2010 as the applicant had absconded. His transfer to Italy was enforced on 18 January 2012.

On 4 December 2012 the applicant once again applied for asylum, using his present identity. The Board dismissed his application on 2 February 2013 and transferred him to Italy. The Board noted that the applicant ’ s family life had not been established in his home country and that A ’ s handicap was not severe enough to find that she was dependent on him. The transfer was enforced on 4 March 2013.

The applicant applied for a residence permit on 23 April 2013 based on his family ties to A and B (C had not been born at the time). Although he handed in his application while in Sweden, he left for Italy on 23 August 2013. The Board rejected his application on 26 August 2013. The Board noted that the applicant could only be granted a residence permit if he could prove his identity. As the applicant was from Somalia, where a functioning and reliable national registration system had been lacking since 1991, he was unable to submit any ID that could prove his identity, as they were only based on his oral submissions. According to case-law, it was possible to grant a residence permit for family reunification if the applicant could make his identity likely. However, the Board noted that such an exception only applied if the parties had lived together in their home country.

The Migration Court ( Migrationsdomstolen ) rejected the applicant ’ s appeal on 10 January 2014, agreeing with the findings of the Board. The Migration Court of Appeal ( Migrationsöverdomstolen ) decided, on 21 February 2014, to refuse leave to appeal.

The applicant applied for a residence permit a second time based on his ties to A, B and, this time, also to C. This application was made from Italy. The Board rejected it on 9 February 2015. As in the previous decision, it was noted that the IDs that the applicant had provided could not prove his identity. Also, as he had used different identities in Sweden, he had not even made his identity likely. The fact that DNA analyses showed that the applicant and A, with a likeliness of 99.999 %, were the parents of B and C led to no other assessment.

The applicant ’ s appeal was rejected by the Migration Court on 22 September 2015. The court agreed with the findings of the Board and deemed that the exception to the requirement of proven identity could not be applied. The Migration Court of Appeal refused leave to appeal on 9 November 2015.

COMPLAINT

The applicant complains under Article 8 of the Convention that the failure to grant him a residence permit as he cannot prove his identity amounts to a violation of his right to respect for his family life.

QUESTION TO THE PARTIES

Having regard, in particular, to the best interests of the children and the prima facie obstacles to the family ’ s reunification, has the decision to refuse the applicant a residence permit in Sweden involved a breach of his right to respect for his family life, contrary to Article 8 of the Convention?