FIFTH SECTION

Application no. 52390/09 Shaban AHMAD and others against Germany lodged on 24 September 2009

STATEMENT OF FACTS

The first and the second applicants, Mr Shaban Ahmad and Mrs Nazli Beiro , are Syrian nationals of Kurdish ethnicity who were born in 1961 and 1968 respectively. The third to fifth applicants, Alan, Juan and Hevin Ahmad, are the children of the first and the second applicant. They were born in Germany in 1996, 2003 and 2006. All applicants live together in Voerde , Germany .

They are represented before the Court by Mr M. Karadas , a lawyer practising in Duisburg .

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

A. The circumstances of the case

1. Background to the case

(a) Asylum proceedings

On 1 September 1994 the first applicant entered Germany and applied for asylum on the grounds that he was a member of a Kurdish party, YEKIT, in Syria . About a year later the second applicant together with their then minor sons Aram and Majid joined the first applicant. On entry the second applicant handed over her valid Syrian Passport.

On 12 February 1996 the Federal Agency for Migration declined the asylum request of the first applicant.

On 12 March 2002 the Düsseldorf Administrative Court dismissed the case against the agency ’ s decision.

On 16 May 2002 the applicants re-applied for asylum. The second request was rejected on 20 August 2002.

On 24 May 2002 the applicants declared that they would leave Germany voluntarily and authorized the Foreigner ’ s Office ( Ausländerbehörde ) to prepare the necessary steps.

Since 25 May 2002 the first and the second applicants have been required to leave Germany ( vollziehbare Abschiebungsandrohung ). Since this date the stay of the applicants in Germany has been tolerated ( Duldung ) on a three-month basis. Removal proceedings were stayed for factual reasons as the applicants did not hold valid Syrian identity papers.

On 4 April 2003 the applicants withdrew the application for judicial review regarding the second asylum request.

On 5 July 2005 the asylum requests regarding the third and fourth applicants, Alan and Juan, were dismissed by the Federal Agency for Migration. Since 22 July 2005 they have been required to leave Germany .

On 6 November 2006 the asylum request of the fifth applicant was dismissed. His removal order bec ame final on 18 November 2006.

(b) Preparation of removal

On 24 October 2002 the Wesel District Administrator ( Landrat des Kreises Wesel) asked the applicants to provide a certified copy of the marriage certificate, as this document was necessary to register those applicants who were born in Germany . The applicants replied that this was impossible to obtain from Germany and only possible through an application in person in Syria . The first applicant handed over his Syrian driving licence to the German authorities.

On 11 April 2003 the District Administrator informed the applicants that according to the experience of the Central Office for Foreigners regarding Syrian administrative practise an application in person was not necessary. The first applicant then asked one of his brothers in Syria to apply for identity papers or passports, but did not receive any. The first applicant mandated a Syrian attorney with procuring documents.

On 24 April 2003 the applicants refused to go to the Syrian diplomatic representation in Germany .

On 3 June 2003 the Wesel District Administrator ordered the applicants to provide valid Syrian passports within a month. The applicants appealed on 10 June 2003.

Between 22 July and 11 December 2003 the District Administrator imposed on six occasions an administrative fine against the applicants for refusing to go to the Syrian diplomatic representation. The imposition of fines was later lifted.

On 22 December 2005 the first and the second applicant applied again for travel documents at the Syrian embassy in Berlin . As they neither speak nor write Arabic, they used a translator for communication with the embassy. Allegedly the first and second applicant refused to have the third to fourth applicants registered in Syria .

On 13 February 2006 the Wesel District Administration warned the applicants about the consequences of their failure to act.

The certified marriage contract between the first and the second applicants was provided with the help of the German Embassy in Syria .

2. Proceedings for a temporary residence permit

On 8 September 2005 the applicants applied for a residence permit on humanitarian grounds according to section 25 paragraph 5 of the Residence Act. This was denied and the administrative appeal was dismissed on 17 May 2006.

On 10 November 2007 the applicants applied again for residence permission on humanitarian grounds according to section 25 paragraph 5 of the Residence Act as deportation was not feasible for factual grounds without any fault of the applicants.

On 23 November 2007 the first applicant applied for a work permit, which was granted.

On the same day the applicants applied for a residence permit under Section 104a of the Residence Act. They argued that their continuous illegal residence status was a particular hardship for them. They submitted in detail that they had always been co-operative. The report of the Syrian representation that the first and second applicants had not filled in documents correctly was misplaced as they were not able to fill in documents in Arabic language. They had used an interpreter at the representation.

In January 2008 the first and the second applicants applied for new Syrian passports.

On 14 February 2008 Majid Ahmad and on 19 December 2008 Aram Ahmad were granted temporary residence permits on humanitarian grounds under section 23a of the Residence Act because the Hardship Commission ( Härtefallkommission ) attached to the North Rhine - Westphalian Ministry of Interior had ordered the Wesel District Administrator to do so.

On 13 March 2008 the Wesel District Administrator declined to grant temporary residence permits under section 104a of the Residence Act for all applicants on the ground that the first and the second applicants had intentionally protracted procedures for their removal. They had not co ‑ operated effectively in procuring valid passports or other Syrian documents in order to remove them. The authority pointed out that the applicants were not hindered to leave Germany voluntarily. The minor children shared the status of their parents and had therefore no independent right to a residence permit.

On 15 April 2008 the applicants filed for judicial review at the Düsseldorf Administrative Court . Citing from the administrative files they argued that the Wesel District Administrator knew well that the proceedings to obtain Syrian identity papers were difficult if not impossible. It was even known to the authority that the Syrians acted arbitrarily and might require personal attendance in Syria . They further argued that the minor applicants could not be held liable for the alleged misbehaviour of their parents, the first and second applicants.

In June 2008 the adult sons Aram and Majid travelled to Syria to obtain new passports for the first and the second applicants. The third to fifth applicants would then be registered in the papers of their parents.

In July 2008 the first and the second applicants failed a proficiency test for the German language.

On 20 November 2008 the Düsseldorf Administrative Court dismissed the applicants ’ claim by a decision in written proceedings. The court argued in respect of the third to fifth applicants that they did not hold valid identity papers; therefore they did not fulfil the legal requirements of a residence permit for humanitarian grounds. In respect to the first and the second applicants the court held that these applicants had obstructed measures to remove them. Interpreting section 104 paragraph 1 (4) of the Residence Act according to the case-law of the superior courts the court held that only intentional and massive obstruction that rendered removal procedures futile disqualified the applicants from obtaining a residence permit. The court found that the applicants had co-operated only since the beginning of the year 2008 and had massively obstructed the removal proceedings before .

The applicants requested an oral hearing.

On 26 March 2009 the Düsseldorf Administrative Court dismissed the claim with a judgment after a hearing had been held. It argued that the applicants were not in a position to be granted a temporary residence permit as they had contributed intentionally to the delay of obtaining identity papers. Thereby they had effectively obstructed proceedings to remove them. The court argued that after the first and the second applicants indeed applied for Syrian passports in January 2008 they had received them in a remarkably short time. That indicated that the applicants could have obtained valid passports years earlier had they wished to co-operate. The court further considered that the minor applicants shared the residence status of their parents. The family consisting of parents and minor children formed a “residence unit” ( aufenthaltsrechtliche Schicksalsgemeinschaft ), in distinction from the adult sons. The court argued further that Article 8 of the Convention did not compel the defendant to treat the applicants like their adult sons referring to the ECHR judgment Rodrigues da Silva and Hoogkamer v. the Netherlands , no. 50435/99, ECHR 2006 ‑ I . The court concluded with an investigation whether the second applicant was unfit to be removed for psychological reasons. The court rejected this for lack of sufficient evidence.

On 8 June 2009 the North Rhine-Westphalia Administrative Court of Appeal declined to grant leave to appeal. It argued that the applicants ’ pleadings regarding leave to appeal lacked the necessary clarity and did not react to the arguments of the judgment of the Düsseldorf Administrative Court . In relation to the minor applicants the court held that it was common practice in the case-law of the court to hold underage foreigners liable for the deeds of their parents. Obstructive behaviour which disqualified the adult parents from humanitarian benefits excluded also their minor children. On 4 September 2009 the Federal Constitutional Court , in a composition of a panel of three judges, declined to review the constitutional complaint.

B. Relevant domestic law and practice

The rights of entry and residence for foreigners are governed f rom 1 January 2005 by the Residence Act ( Aufenthaltsgesetz ).

“ Section 23a

Granting of residence in cases of hardship

(1) By way of derogation from the prerequisites for the issuance and extension of residence titles as stipulated in this Act, the supreme Land authority may, on petition from a Hardship Commission to be established by the Land government by virtue of a statutory instrument, order a residence permit to be issued to a foreigner who is enforceably required to leave the Federal territory (hardship petition). Depending on the individual case concerned, the said order may be issued with due consideration as to whether the foreigner ’ s subsistence is assured or a declaration of commitment is submitted in accordance with Section 68. A case of hardship will not generally be considered if the foreigner has committed an offence of considerable severity. The authority to grant residence represents the public interest only and does not constitute any rights on the part of the foreigner.

Section 25

Residence on humanitarian grounds

( ... )

(5) By way of derogation from Section 11 (1), a foreigner who is enforceably required to leave the Federal territory may be granted a residence permit if his or her departure is impossible in fact or in law and the obstacle to deportation is not likely to be removed in the foreseeable future. The residence permit should be issued if removal has been suspended for 18 months. A residence permit may only be granted if the foreigner is not prevented from leaving the Federal territory by fault of his or her own. Fault on the part of the foreigner applies in particular if he or she furnishes false information, deceives the authorities with regard to his or her identity or nationality or fails to meet reasonable demands to eliminate the obstacles to departure.

Section 25a (in force since 1 July 2011)

Residence for well-integrated adolescents.

(1) A foreigner who is enforceably required to leave the Federal territory but was born in Germany or entered the territory before the age of 14 may be granted a residence permit, if

1. he has stayed continuously for six y ears on the Federal territory, by virtue of his or her deportation having been suspended, his or her residence being permitted or a residence permit having been issued on humanitarian grounds,

2. he has attended school for at least six years successfully or has achieved educational or vocational qualifications and

3. he applied for the permit between the age of 15 and before he becomes 21 years old, provided his integration into the conditions of the Federal Republic of Germany seems to be ensured because of his previous education and living conditions. As long as the foreigner is in training or a high school or university student, the payment of welfare benefits does not impede the grant of a residence permit. A residence permit is denied if the deportation is suspended due to his own misstatement of the foreigner, or because of his deception about his identity or nationality. The residence permit can be granted in derogation from section 10 paragraph 3 sentence 2, if the rejection due to § 30 paragraph 3 of the Asylum Procedure Act relates to an application pursuant to section 14a of the Asylum Procedure Act.

Section 104a

Regulations concerning old cases

(1) ( ... ) a foreigner whose removal has been suspended should be granted a residence permit where he or she has been continuously resident in the Federal territory for at least eight years on 1 July 2007, or, in case he or she lives together with one or several minor, unmarried children as a family unit, where he or she has been continuously resident in the Federal territory for at least six years on the said date, by virtue of his or her removal having been suspended, his or her residence being permitted or a residence permit having been issued on humanitarian grounds and he or she

1. has sufficient living space at his or her disposal,

2. has an adequate knowledge of the spoken German language corresponding to level A2 of the Common European Framework of Reference for Languages,

3. furnishes proof that any children of school age actually attend school,

4. has not wilfully deceived the foreigner ’ s office authority as to circumstances of relevance to his or her situation under residence law and has not wilfully delayed or obstructed official measures to end his or her residence,

5. does not have any links to extremist or terrorist organisations and does not support such organisations and

6. has not been convicted of an offence wilfully committed in the Federal territory, whereby fines totalling up to 50 daily rates or up to 90 daily rates in the case of offences which, in accordance with the Residence Act or the Asylum Procedure Act, can only be committed by foreigners, shall be ignored as a general principle.

Where the foreigner ensures his or her subsistence independently by means of an economic activity, the residence permit shall be granted pursuant to Section 23 (1), sentence 1. It shall otherwise be issued pursuant to sentence 1; it shall apply as a residence title pursuant to Chapter 2, Part 5; Sections 9 and 26 (4) shall not apply. The requirement stated in sentence 1, no. 2 may be waived until 1 July 2008. The requirement stated in sentence 1, no. 2 shall be waived if the foreigner is unable to meet it on account of a physical, mental or psychological illness or handicap or on grounds of old age.

( ... )

Section 104b

Residence permit for a child of foreigners whose removal was stayed

A minor, unmarried child may be granted an independent residence permit according to section 23 paragraph 1 sentence 1 in the case of the departure of his or her parents or of the parent with sole custody right, who were not granted or extended a residence permit pursuant to section 104a, where

1. the child has reached the age of fourteen on 1 July 2007,

2. the child has either been lawfully in Germany or the removal has been suspended for at least six years,

3. the child is proficient in German,

4. on the basis of the child ’ s education and way of life to date, he or she has integrated into the prevailing way of life in the Federal Republic of Germany and it is ensured that the child will remain integrated in this way of life in the future and

5. care and custody of the child is ensured. ”

COMPLAINTS

The applicants complain under Articles 8, 14 and Article 1 of Protocol No. 7 as well as under Article 4 of Protocol No. 4 of the Convention that the national courts wrongly established that the applicants intentionally protracted the procurement of Syrian passports. They explain in great detail what kind of difficulties they encountered and that these structural problems are well known to the German administrative authorities. They mention that the second applicant suffers from illnesses that cannot be effectively treated in Syria . They emphasise that they have been living continuously in Germany for 16 years now and consequently Germany has become their home country. All applicants respect German laws and have never been charged even for a misdemeanour.

The third to fifth applicants state that they do not know any other country than Germany and they are fully integrated into German society. The third to fifth applicants complain that they are less favourably treated than their adult brothers, Majid and Aram Ahmad, and they see no legitimate reason for the distinction. Even assuming that their parents, the first and second applicants, had intentionally obstructed the procurement of documents they – the minor applicants – could not reasonably be held responsible for their parents ’ behaviour on which they had no influence.

QUESTIONS TO THE PARTIES

Has there been a breach of the right to respect for the private and/or family life of the minor applicants Alan, Juan and Hevin Ahmad within the meaning of Article 8 § 1 of the Convention by the refusal of the Wesel District Administrator ( Landrat des Kreises Wesel) on 13 March 2008 to grant them temporary residence permits?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

Have the minor applicants suffered discrimination in the enjoyment of their Convention rights contrary to Article 14 of the Convention read in conjunction with Article 8?