FIFTH SECTION

Application no . 80545/12 Meley GIRMAY against Sweden lodged on 12 October 2012

STATEMENT OF FACTS

The applicant, Ms Meley Girmay , is an Ethiopian national, who was born in 1996 and lives in Stockholm. She is rep resented before the Court by Mr J. Södergren , a lawyer practising in Stockholm.

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

In April 2008, the applicant was granted a temporary residence permit in Sweden, in the capacity of being the child of A, who was granted a temporary residence permit on the basis of family ties to his wife, Y, who lived in Sweden. In July 2008, the applicant and A arrived in Sweden and settled with Y.

In March 2010, the applicant and A lodged an application with the Migration Board ( Migrationsverket ) to have their residence permits prolonged. The Board was then informed by the Tax Authority that the Ethiopian birth certificate, stating that A was the applicant ’ s father, had not been accepted and that the social services therefore had initiated a paternity investigation. In April 2011, the investigation, including a DNA-test, revealed that A was not the applicant ’ s biological father. As a result of this, the applicant was appointed a guardian ad litem .

The applicant then applied for a residence permit in Sweden based on her substantial connection to Sweden and the particularly distressing circumstances of her case. Before the Board, the applicant claimed the following. Her mother and A had had a brief relationship. They had never been married or lived together. When she was born, her mother had handed her over to A, whom she had lived with and been raised by ever since. She had never had any reason to question that A was her biological father. When A had been informed that he was not her father, he had been devastated. However, they still considered themselves to be father and daughter and she did not want to be separated from him since he was her closest family member. While growing up, she had never had regular contact with her mother. They had only seen each other occasionally and they had had telephone contact. Her mother had married a man who she did not know and she had a half-brother who she had rarely seen. She had no other relatives in Ethiopia. She had had no contact with her mother since she arrived in Sweden. When she and A had tried to contact her mother, they had been informed by the mother ’ s former landlord that she had moved to a small village. A had not known anyone in the village in question and they had therefore not been able to contact her. Her mother was poor and it would therefore be very difficult to live with her if returned to Ethiopia. The applicant had integrated well into Swedish society, she had received schooling and she had many friends. She submitted inter alia a report card and certificates issued by teachers at her school to demonstrate her connection to Sweden. She also produced a certificate issued by a social worker at the social services, dated 30 June 2011, which stated inter alia that the applicant had told that she was close to A, but that she had never had a close relationship to her mother, who she had seen once or twice per month while growing up. In the social worker ’ s view, it would not be in the best interest of the applicant to be separated from A, given the ties she had to him and the lack of ties she had to her mother.

On 17 October 2011, the Migration Board rejected the application. From the outset, it observed that since A was not the applicant ’ s father, the invoked family ties, on which the initial decision to grant the applicant a temporary residence permit was based, had never existed. Further, the Board noted that the applicant had lived her entire life in Ethiopia before coming to Sweden, and that the applicant ’ s mother, the only parent known to the Board, still lived in Ethiopia. The applicant had no parents or custodians in Sweden. It observed that the certificate from the social services indicated that the applicant had held that she had seen her mother once or twice per month in her home country, which in the Board ’ s view suggested that there had been contact on a regular basis. Further, it found that since the applicant had information about her mother ’ s whereabouts in Ethiopia, it would be possible for them to reconnect. Thus, the Board found that it would be in the applicant ’ s best interest to reunite with her mother in Ethiopia, a country to which she had a stronger connection than Sweden, even considering that she had integrated well into Swedish society. In addition, it noted that there appeared to be no information about the applicant ’ s biological father. The Board found that even if the invoked relationship between the applicant and A was undisputed there was still an indication that the applicant resided in Sweden without her biological father ’ s knowledge or consent. Lastly, it found no particularly distressing circumstances in the case.

The applicant appealed to the Migration Court ( Migrationsdomstolen ) in Stockholm, maintaining her claims and adding the following. She had started to see her mother when she was about ten years old. Her mother had never taken any responsibility or met her needs, emotional or otherwise. Her mother had not once written or called her during the three years she had been in Sweden. Even if it would be possible to find her mother, it was highly uncertain whether her mother, and her family, would want to reunite with her. Her mother would not likely have the financial means to support her. Further, she could not expect to be offered a placement at a children ’ s home in her home country or to receive financial support from the Ethiopian authorities. She would risk ill-treatment if returned. During the time she had lived in her home country, no one besides A had ever claimed to be her father. Further, A was recorded as her father on her birth certificate. Her unknown biological father has had no custody of her and his approval of her moving to Sweden was therefore irrelevant. She was doing well in her family and in school in Sweden and she wanted A to be her guardian.

On 9 March 2012, the Migration Court held an oral hearing in the case, in which A was heard as a witness. He stated, inter alia , the following. He had been told to take care of the applicant since the applicant ’ s mother had been entirely sure that he was the father. He had accepted this and the applicant had been four or five years old when she had come to live with him. He had taken full responsibility for her without any help from her mother. When he had applied for the applicant ’ s passport, he had shown the birth certificate. The applicant ’ s mother had issued a consent letter allowing the applicant to move to Sweden. The document had been signed by witnesses. The consent letter was a genuine document, stamped by the Ethiopian Ministry of Foreign Affairs and confirmed by the embassy. The birth certificate had been issued by the local authorities when he had initiated the process of coming to Sweden. He had been recorded as the father since the applicant had lived with him and the community had known that he was her father. He had submitted the consent letter and birth certificate in 2008, in connection with his application for a residence permit in Sweden. He would like to adopt the applicant but his wife, who had children from a previous relationship, was hesitant for reasons relating to inheritance.

On 23 March 2012, the Migration Court upheld the Board ’ s decision in full. From the outset, it found that the circumstance that the applicant had been in Sweden since July 2008, and that she had integrated well into Swedish society did not amount to her having a substantial connection to Sweden and thus was an insufficient ground to grant the application. It observed that the applicant ’ s connection to Sweden was dependent on A. In this regard, the court observed that it was undisputed that the applicant had considered A to be her father. The court found, with reference to core elements of immigration control, that some sort of kinship was required in order to grant a residence permit based on family ties. In addition, it stated that a more permanent tie was required when assessing an application for a permanent residence permit based on family reunification. In this regard, the court noted that A only had been granted a temporary residence permit.

Two lay judges were of a dissenting opinion and considered that the applicant should be granted a permanent residence permit in Sweden on the basis of the particular reasons in the case. In their view, the applicant had a substantial connection to Sweden through A and her integration into Swedish society, which had not been questioned by the Migration Board. Further, they found that the circumstances were unusual and distressing since the applicant, first after arrival in Sweden, had learnt that A was not her biological father. Moreover, she had not had frequent contact with her mother and it appeared unlikely that such contact would take place or that her basic needs would be met if returned to Ethiopia.

Upon appeal, the Migration Court of Appeal ( Migrations överdomstolen ), on 14 June 2012, refused leave to appeal.

COMPLAINT

The applicant complains under Article 8 of the Convention that the right to respect for her family and private life has been violated by the national authorities ’ decision not to allow her to remain in Sweden with A.

QUESTION TO THE PARTIES

Has there been an interference with the applicant ’ s right to respect for her private and family life when the Swedish authorities refused to prolong her residence permit, within the meaning of Article 8 § 1 of the Convention? If so, was that interference necessary in terms of Article 8 § 2?