Communicated on 4 July 2016

THIRD SECTION

Application no. 53846/10 Vurgun Israfil Ogly ALIYEV against Russia lodged on 24 August 2010

STATEMENT OF FACTS

The applicant, Mr Vurgun Israfil Ogly Aliyev , is stateless. He was born in 1976 and lives in Velikiye Luki .

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

A. The circumstances of the case

1. Background information

In the spring of 1993 the applicant, who was sixteen years old at the time, arrived in Russia to live with his father and four siblings, all of whom were Russian citizens, in Velikiye Luki in the Pskov Region. Between 1993 and 2003 he lived in Russia on the basis of his Soviet passport and temporary residence permits.

At some point the applicant entered into a relationship with Ms I. Antipova , a Russian national. They started living together. Their marriage was not officially registered as the applicant did not have a valid passport.

On 13 March 2002 the couple had a son, Isa Antipov . According to the applicant, he was registered as the child ’ s father under the name of Mr Vurgun Israfil Ogly Antipov as the lack of a valid passport meant he could not give the child his surname, Aliyev .

In the spring of 2003 the applicant applied to the Pskov Regional Department of the Interior ( Управление внутренних дел по Псковской области ( УВД )) ( hereinafter “the UVD”) for a five-year residence permit (“the permanent residence permit”). The applicant ’ s Soviet passport was confiscated as void by the UVD ’ s visa and passports section. On 11 June 2003 the passports section provided him with a stateless person ’ s permanent residence permit with the number БГ -11 027718, valid until June 2008.

On 18 April 2005 the applicant was sentenced by the Velikiye Luki Town Court to seven years ’ imprisonment for drug trafficking.

On 14 October 2009 the applicant was released on parole. On release, his stateless person ’ s permanent residence permit was confiscated by the administration of the penal institution, in accordance with Article 7 of the Foreigners Act. Under the terms of his parole, the applicant was to meet his parole officer in Velikiye Luki every month until November 2011.

On 30 November 2009 the applicant applied for a temporary residence permit. On 18 January 2010 the Pskov Region Federal Migration Service ( Управлении Федеральной миграционной службы по Псковской области ( ФМС ) ) ( hereinafter “the FMS”) rejected his application owing to the fact that his criminal record had not expired. It stated that the applicant was to either leave Russia within fifteen days of receipt of the letter or be deported (administratively removed).

On 9 February 2010 the Russian Ministry of Justice i ssued decision no. 653-p concerning the undesirability of the applicant ’ s presence (residence) in Russia until 25 October 2019 ( hereinafter “the exclusion order”), which obliged him to leave the country. It is unclear when the applicant was informed of that decision.

From the documents submitted to the Court it is unclear whether a deportation (administrative removal) decision in respect of the applicant has been taken and if so, whether he has been deported from Russia or continues to reside there.

2. The applicant ’ s appeals against the refusal to grant temporary residence

On 8 February 2010 the applicant appealed against the FMS decision of 30 November 2009 to the Velikiye Luki Town Court, seeking to have it declared arbitrary and unlawful. He stated, in particular, that he had been living as a family with Ms Antipova and that they had a son. He added that his status as a stateless person meant he had been unable to either officially register their marriage or register himself as his son ’ s father under his own surname. The applicant stated that he had been living in Russia since 1993 and that his wife, son, father and siblings were all Russian citizens residing in Russia. Lastly, he pointed out that he was obliged to make regular visits to his parole officer in Velikiye Luki until November 2011 and that deportation would be in violation of his parole.

On 25 February 2010 the Town Court dismissed the applicant ’ s appeal. In its decision the court stated, inter alia , the following:

“... the case file material shows that the applicant Mr Aliyev ... formerly a USSR citizen is currently a stateless person; between 11 June 2003 and 11 June 2008 he resided in the Russian Federation on the basis of the residence permit no. БГ -11 02771 issued by the Pskov Regional Department of the Interior.

At present Mr Aliyev does not have any document granting him a right of residence in the Russian Federation ...

Up to the present the applicant ’ s criminal record has neither expired nor been expunged.

According to paragraph 6 of part 1 of Article 7 of the Federal Law of 25 July 2002 no. 115- ФЗ “The Foreigners Act” if a foreign citizen has a criminal record that has not expired for the commission of a serious or a particularly serious crime in the Russian Federation ... no residence permit is issued for the foreign citizen ... and the [relevant] decision is taken.

According to paragraph 2 of Article 2 of the law, the definition of a foreign citizen also includes a ‘ stateless person ’ .

Therefore, no residence permit can be issued to a stateless person who has committed a serious or a particularly serious crime in the Russian Federation and whose criminal record has not expired.

Mr Aliyev ’ s arguments concerning his family life cannot be taken into account as it is clear from the case file that he is not officially married and that there is no information concerning his paternity in respect of Mr Isa Antipov .

The fact that the applicant ’ s father resides in Russia and that the applicant is obliged to visit a parole officer in connection with his release on parole cannot serve as a reason for him to obtain a residence permit because the applicant has an criminal record for the commission of a serious or a particularly serious crime that has not expired .

Therefore, the court finds that the refusal of the Pskov Regional Federal Migration Service to issue Mr Aliyev a temporary residence permit is substantiated ...”

The applicant appealed against the decision to the Pskov Regional Court. In his appeal the applicant stressed that the first-instance court had failed to examine his de facto marriage to Ms I. Antipova or the fact he was Isa Antipov ’ s father. It had not looked at the fact that his being a stateless person and the absence of a passport had made it impossible for him to officially register the marriage and give his surname to his son, meaning that the relevant record had only mentioned his name as his son ’ s patronymic and that the father was a stateless person. He further stressed that he had lived in Russia since 1993, that all of his family were Russian citizens living in Russia and that any family and social ties he had were in the Russian Federation. Finally, he pointed out that if he was deported it would be impossible for him to fulfil his obligation to visit his parole officer, therefore his parole would be violated, and he would be returned to prison to serve the rest of his sentence of two years and one month.

On 27 April 2010 the Pskov Regional Court dismissed the applicant ’ s appeal. In its decision the court reiterated the reasoning of the first-instance court and added that according to the exclusion order of 9 February 2010 the applicant was to leave the country and not re-enter it until 25 October 2019.

B. Relevant domestic law

For the relevant domestic law and practice see Gablishvili v. Russia , no. 39428/12 , §§ 33-37, 26 June 2014, and Muradeli v. Russia , no. 72780/12 , §§ 45-55, 9 April 2015.

COMPLAINTS

The applicant complains under Articles 8 and 6 of the Convention that the refusal to grant him a residence permit violated his right to respect for his private and family life and that the domestic courts failed to examine the issue properly.

QUESTIONS TO THE PARTIES

1. Did the domestic courts examine the applicant ’ s arguments that it was impossible for him to comply with the requirements of his release on parole in case of removal/deportation from the Russian Federation?

2. What is the procedure for the official registration of a marriage and paternity for a stateless person? What documents are required from a stateless person for those procedures?

3. Did the exclusion order constitute an interference with the applicant ’ s right to respect for his family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention (see Üner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006-XII, and Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-09, 3 October 2014)?

4. The Government are requested to submit a copy of the decision by the Russian Ministry of Justice concerning the undesirability of the applicant ’ s presence (residence) in Russia (“the exclusion order”), and a copy of the decision on the applicant ’ s removal/deportation from Russia.