Lexploria

Information Note on the Court’s case-law 200

October 2016

B.A.C. v. Greece - 11981/15

Judgment 13.10.2016 [Section I]

Article 8

Expulsion

Article 8-1

Respect for private life

Asylum-seeker living under precarious conditions for years owing to continuing failure of highest appellate authority to decide his appeal: violation

Facts – The applicant is a Turkish national who is a pro-Kurdish militant. After being ar rested and charged in Turkey with undermining the constitutional order of the State, he fled to Greece and sought asylum there in 2002. His application was summarily rejected by the first-instance administrative authority. The applicant lodged an administr ative appeal with the Minister for Public Order. In accordance with domestic law, the Minister had to give a decision within 90 days, after obtaining the opinion of the Consultative Asylum Committee. In 2003 the committee interviewed the applicant and expr essed an opinion in favour of granting him refugee status (the documents produced substantiated his allegations of torture). However, no explicit response was ever given to the applicant’s appeal.

Turkey submitted a request for the applicant’s extradition. In 2013 the courts opposed the request on the basis of the risks of ill-treatment and the vague and abstract nature of the alleged offence.

Since 2003 the applicant has lived in Athens, reporting to the police every six months to renew his asylum-seeker’s card. His wife joined him in the same year but her presence was not legalised until she was awarded a contract of employment in 2008.

Law

Article 8: The problem arising in the present case did not relate to any removal or deportation orders but to the applicant’s precarious and uncertain circumstances during a lengthy period, namely since his appeal – to which he had received no response for more than twelve years – against the rejection of his asylum application. In that context, the applicant’s uncertainty regarding his status took on an entirely different dimension from that of an asylum-seeker simply awaiting the outcome, within a reasona ble time, of the proceedings concerning his or her application.

Several aspects of these precarious circumstances were to be noted:

– while waiting for a decision, the applicant had worked without a work permit. At the time, asylum-seekers wishing to obta in such a permit were subjected to restrictive conditions: they had to prove, among other things, that no interest in practising a specific profession or working in a certain sector had been shown by unemployed nationals, citizens of other European Union c ountries or anyone who already had refugee status, and in addition to this legal obstacle there was a practical difficulty linked to the economic crisis and the high number of unemployed jobseekers;

– as the mere holder of an asylum-seeker’s card, the app licant had also been unable to open a bank account or receive a tax identification number – these being prerequisites in order to carry out a professional activity – or even obtain a driving licence or enrol at university;

– with regard to the applicant’s private life, it had not been possible or legal for him to live with his wife until 2008, as a result of her obtaining a work permit in Greece for a limited period and not by virtue of any provisions governing family reunion.

It had to be concluded that t he failure by the Minister for Public Order to give a decision on the applicant’s asylum application was unjustified; no explanation had been given for this state of affairs, which had lasted for more than twelve years despite the fact that the national au thorities had ruled that it was necessary to grant the applicant asylum and had also rejected the Turkish authorities’ request for his extradition.

Accordingly, the competent authorities had failed to comply with their positive obligation to provide an eff ective and accessible procedure for protecting the right to respect for private life through appropriate regulations ensuring that the applicant’s asylum application was examined within a reasonable time so that he was left in a state of uncertainty for th e shortest possible period.

Conclusion : violation (unanimously).

(See, by contrast, the case of a refusal of a residence permit for applicants who were unlawfully present in the host country and were seeking to confront the national authorities with family life as a fait accompli : case-law cited in Jeunesse v. the Nethe rlands ([GC] 12738/12, § 103, 3 October 2014, Information Note 178 .)

The Court also found a violation of Article 13 in conjunction with Article 8 (unanimously).

Article 3 in conjunction with Article 13: The Court dismissed the Government’s argument that the court decisions refusing the applicant’s extradition would preclude his being returned to Turkey, finding that the decisions in question had not invalidated the provisional administrative decision refusing his asylum application and could therefore not be deemed to amount to granting him international protection.

The Court thus took the view that the applicant’s asylum application was still pending, noting that indications to that effect could be found in police correspondence. Since his legal status remained uncertain, the applicant was at risk of sudden removal to Turkey without the possibility of an effective examination of his asylum application, even though there appeared on the face of it to be a substantial risk that he might be subjected to treatment breaching Article 3 in that country.

Conclusion : violation in the event of the applicant’s return to Turkey without an ex nunc assessment by the Greek authorities of his personal circumstances i n the light of the criteria established in the Court’s relevant case-law (unanimously).

Article 41: EUR 4,000 in respect of non-pecuniary damage.

(See also R.U. v. Greece , 2237/08 , 7 June 2011)

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