SECOND SECTION

Application no. 15183/12 Angel Ernesto OLIVO CRUZ and others against Switzerland lodged on 12 March 2012

STATEMENT OF FACTS

The first (Angel Ernesto Olivo Cruz) and second ( Lesly Fernanda Robayo Perez) applicants are an Ecuadorian couple, born in 1969 and 1972 respectively. Together with their son, the third applicant (Kevin David Olivo Robayo ), who was born in 1997, they entered Switzerland in 2000 and have stayed in the country illegally. Their daughter, the fourth applicant (Angie Corinne Olivo Robayo ), was born in Switzerland in 2004. All four applicants are represented by Ms. Magalie Gafner , a lawyer working at the Protestant Social Centre, a non-profit-making association registered under Swiss law with its office in Geneva .

A. The circumstances of the case

The facts of the case, as presented by the applicants and their representative, can be summarised as follows.

On 20 June 2008 the first applicant submitted an application for a residence permit and a work permit to the Registration Office of the Canton of Vaud (“the Registration Office”). Thenceforth, from 2008 until the final domestic decision was rendered and served on the applicants in 2012, the respondent State tolerated the applicants ’ continued residence on its territory. The applicants have never returned to their home country.

On 27 July 2009 the Registration Office informed the first applicant that it would be prepared to issue a residence permit and a work permit in his favour, provided that there was subsequent authorisation from the Federal Office for Migration (“the FOM”). It further informed him that the same procedure would be applied to the other applicants.

By a decision of 28 January 2010 the FOM refused to authorise the applicants ’ residence permits and work permits. It established that, due to the fact that the applicants had resided illegally in the country and had no other family member with a valid residence permit in Switzerland , they did not appear to fulfil the requirement of lawful admission necessary for a residence permit to be issued. The only avenue open to them was to file for an exceptional residence permit granted on the basis of personal hardship by proving the existence of particularly strong ties with the country (Article 30(1)(b) of the Federal Foreign Nationals Act of 16 D ecember 2005). However, based on the circumstances of the case, the FOM then found that, even having special regard to the situation of the children, the applicants had failed to prove such ties with Switzerland . It therefore refused to issue an exceptional permit granted on the basis of personal hardship.

The applicants appealed unsuccessfully against this decision to the Federal Administrative Court (“the FAC”). The FAC issued a ruling on 14 December 2010, finding that the applicants did not fulfil the conditions for an exceptional permit granted on the basis of personal hardship. Furthermore, it also ruled that the applicants could not be granted residence permits based on their rights under Article 8 of the Convention.

Finally, the Federal Supreme Court (“the FSC”) also rejected the applicants ’ appeal by a decision of 6 April 2011. Supported by letters from friends, neighbours and teachers, the applicants had argued before the FSC: that they had always been employed and had never depended on public welfare; that they did not have criminal records and had not built up debts; that they were socially well integrated; that both children were attending public school; that the third applicant had arrived in Switzerland at the age of two and had spent almost his whole life there and had gone through the entire school system in the country; that he spoke Spanish but had no written knowledge of this language; and that both children were also enrolled in various extracurricular activities. Despite those contentions, the FSC held that in comparable cases residence permits granted on the basis of personal hardship were only granted where applicants could prove especially strong ties with their place of residence which went beyond “ordinary social and economic integration”. The duration of residence was therefore only one element to be taken into account and years of illegal residence would not be given equal weight to years of legal residence. In the applicants ’ case, the FSC ruled that they were well integrated but that their integration could not be considered as extraordinary. Having special regard to the situation of the third applicant, the FSC considered that, given that he could speak Spanish and had not yet finished secondary school, he could reintegrate into the school system of his home country and pursue a professional career there. The FSC also held that the applicants ’ expulsion would not be contrary to their right to respect for their private lives under Article 8 of the Convention.

By letters of 20 January and 29 April 2011 the FOM informed the applicants that they were required to leave the country before 30 September 2011.

The applicants lodged a renewed appeal against this decision with the FOM. They submitted new evidence regarding the second applicant, who had obtained a permanent full-time contract with a monthly gross salary of 4,600 francs (about 3,710 euros) and regarding the third applicant, who had been undergoing long-term treatment by a dentist and a psychologist. His psychologist stated that due to the uncertainty regarding his residence status in Switzerland and the unavoidable uprooting in the event of an expulsion, he had lately been suffering from anxiety, which had had negative effects on his performance at school. The FOM held that this evidence was incapable of altering the FSC ’ s previous decision of 6 April 2011 and therefore rejected their appeal by a decision of 11 July 2011.

On appeal, the FAC also dismissed the applicants ’ case on 16 January 2012. It ruled that the second applicant ’ s employment contract could have been submitted in the previous proceedings and had therefore been submitted late. Regarding the third applicant, it established that he could continue to receive treatment in Ecuador and that his expulsion would breach neither Article 3 nor Article 8 of the Convention.

On 15 February 2012 the FSC rejected their appeal as inadmissible. It did not rule on the merits.

B. Relevant domestic law

The relevant articles of the Federal Foreign Nationals Act of 16 December 2005 (RS 140.20) are the following:

Article 30

“(1) Exceptions to the admission requirements (Art. 18–29) may be permitted in order to:

...

(b) take account of serious cases of personal hardship or important public interests;

... ”

Article 47 ( Time limit for family reunification)

“(1) The right to family reunification must be exercised within five years. Children over twelve must be reunified with their family within twelve months.

... ”

Article 83 (Order for temporary admission)

“1. If the enforcement of removal or expulsion is not possible, not permitted or not reasonable, the FOM shall order temporary admission.

(2) ...

3. Enforcement is not permitted if Switzerland ’ s obligations under international law prevent the foreign national from making an onward journey to their native country, to their country of origin or to a third country.

4. Enforcement may be unreasonable for foreign nationals if they are specifically endangered by situations such as war, civil war, general violence and medical emergency in their native country or country of origin.”

COMPLAINT

The applicants complain under Article 8 of the Convention that the expulsion measure against them would interfere disproportionately with their private life. They submit that the expulsion would be particularly disproportionate in respect of the third applicant, who has spent almost his whole life in Switzerland and has gone through the entire school system there.

QUESTION s TO THE PARTIES

1. Has there been a violation of the applicants ’ right to respect for their private life contrary to Article 8 of the Convention?

2. What weight should be given to the interests of the third applicant, a minor, in determining the p roportionality of the measure?