CONCURRING OPINION OF JUDGE NICOLAOU

The facts, in so far as they have been elucidated may be briefly summarised. The applicants are Muslims of Afghan nationality. They are cousins whose family homes were close to each other, thus giving them the opportunity to develop, from early on, an emotional attachment. On 17 September 2010, while unlawfully residing in Iran, they underwent a form of customary, religious marriage. This occurred in a family setting without the presence or participation of religious functionaries and, therefore, since there was no formal act, it was not possible – without taking further steps – to obtain a marriage certificate.

The ordinary rule of private international law is that the formal requisites of marriage are governed by the lex loci celebrationis. That holds true for Switzerland too, whose Federal Code on Private International Law (CPIL) provides, in Article 45, that in the absence of a Swiss connection:

“A marriage validly celebrated abroad shall be recognised in Switzerland.”

By the same token, a marriage not thus celebrated will not be valid anywhere else unless the country of antenuptial domicile can accept compliance with its own formalities as sufficient (see Dicey, Morris & Collins, “The Conflict of Laws”, 15 th ed., 17-005. We know nothing about the Afghan rule on that. Neither do we know how Iran viewed the formal requisites of marriage.

The initial Swiss response regarding this aspect of the form necessary for a valid celebration of marriage was that in the absence of documentary proof the authorities could not accept that a marriage had ever taken place. As to the substantive question of capacity to marry, the authorities concluded that a purported marriage involving a female of such a young age would in any event clearly be incompatible with Swiss public policy. They pointed out in this connection that, under Article 187-1 of the Swiss Penal Code, sexual intercourse with a female under the age of 16 was a crime punishable by imprisonment, but they did not raise any question as to consanguinity or affinity. Article 27 § 1 of the CPIL stated that:

“A foreign decision shall not be recognised in Switzerland if such recognition would be manifestly incompatible with Swiss public policy.”

Swiss law requires that for a marriage to be valid both parties must have attained the age of 18. On the basis that there was no marriage which Switzerland could recognise as valid, first the Federal Office of Migration and then the Federal Administrative Court concluded that the applicants could not be regarded as having a joint family life.

Yet the local authority responsible for providing accommodation did not separate the couple; it made available to them just one room with one bed. A guardian, who had been appointed in order to secure the welfare of the first applicant as a minor, did not demur. In fact, in a number of documents and in various contexts the Federal Office of Migration repeatedly referred to the applicants as husband and wife. I do appreciate that such terminology may merely have been a convenient way of referring to them but that does not, in my view, detract from how the applicants were being perceived by those who dealt with them and who were best placed to form a reliable view regarding their relationship.

Nevertheless, on the basis of the official position of the authorities on the purported marriage, the respective asylum requests of the applicants were considered separately and rejected. The authorities intended to remove both applicants to Italy, from where they had come, since under Dublin Regulation II (then in force), Italy was the State responsible for examining their asylum requests. But that was not to be. The second applicant appealed, and as that had suspensive effect he was allowed to remain while the proceedings were pending. The first applicant did not appeal. As a result, the two cases took their own particular course, each at a different speed. That of the first applicant having ended earlier, the authorities took the decision to remove her to Italy, which would have meant separating the applicants. In fact matters took an unexpected turn.

This is what happened. In the case of the first applicant, procedural errors on the part of the authorities coupled with subsequent practical difficulties prevented her removal to Italy within the time-limit fixed by Article 20 § 2 of Dublin Regulation II. Consequently, the duty to examine her asylum request ultimately fell to Switzerland. This had the unintended result that, were the second applicant ’ s appeal to fail, the applicants would inexorably be split, he being sent to Italy while she remained in Switzerland, unless Switzerland saw better and relented. Switzerland did not relent. After about four months, the second applicant was removed to Italy. However, three days later he illegally made his way back to Switzerland, where, with the help of a friendly couple, he was able to see the first applicant secretly. All these events took their toll on the first applicant. A medical report, dated 24 September 2012, described her condition, shortly after the second applicant ’ s clandestine return to Switzerland, as follows:

“Madame, qui est toujours mineure, est terrorisée à l ’ idée de se retrouver sans son mari. ... Lorsque Madame est vue en urgence après le renvoi de son mari, elle est en état d ’ hébétude, fixée sur les évènements récents : reviviscences de l ’ intrusion de la police dans son intimité (le réveil avec les policiers autour d ’ elle, alors qu ’ elle semble avoir été légèrement habillée pour la nuit, est vécu comme un viol). Les idées de suicide refont surface, et les perspectives d ’ avenir semblent bien sombres. Elle ne dort plus, s ’ alimente peu, et n ’ arrive plus à préparer à manger. ... l ’ absence de son mari est dramatique et l ’ expose à des risques majeurs dues aux difficultés d ’ adaptation et décompensation des trouble psychiatriques existants, d ’ autant plus qu ’ il existe des facteurs aggravants.”

To my mind, this medical report, apart from anything else, forcefully illustrates the first applicant ’ s attachment to the second applicant; it underlines her vulnerability; and tends to confirm the existence of family ties between the two. She could not be expected to be able to live without him.

At the same time the second applicant pursued proceedings for re ‑ examination of his asylum request. In addition, just before the first applicant reached the age of 17, both applied for recognition of marriage. The turning point came on 28 November 2013 when, in ruling against a decision of the Federal Office of Migration to impose on the second applicant the advance payment of a judicial fee as a precondition for the re ‑ examination of his asylum claim (see paragraph 16 of the present judgment), the Federal Administrative Court held that:

“ ... the FOM had wrongly imposed on the second applicant the payment of an advance judicial fee because by then the first applicant was 17 years old and the applicants could therefore claim to be a family within the meaning of Article 8 of the Convention as Interpreted by this Court and by the Swiss Federal Tribunal.”

It is interesting to note that in that decision the court spoke of “family life within the meaning of Article 8 of the Convention” and not of “family members” within the meaning of Article 2-i of Dublin Regulation II, to which the Government attached importance. The two concepts are not synonymous. Neither did the court make any reference to the existence or otherwise of any marriage. It transpires that the court proceeded on the obvious ground that there subsisted between the two applicants a family bond to which no effect could previously have been given because the first applicant was underage but that when she turned 17 the reality of the previous de facto relationship could and should then be accepted.

There then followed the most remarkable development of all. On 2 June 2014 the marriage was judicially recognised. This is stated in paragraph 19 of the present judgment, which reads as follows:

“19. On 2 June 2014, the Court of First Instance of the Canton of Geneva recognized the validity of the applicants ’ religious marriage contracted in Iran.”

I have no idea as to how that came about. Had the requirements of the lex loci celebrationis been complied with after all? Had there been no lack of capacity by reason of the first applicant ’ s age? If there had been lack of capacity would not the marriage have been void ab initio ? Or did it remain provisionally valid, remaining in abeyance as it were, so that it could take effect at a later time? What rules of private international law did the Swiss court apply in this case? These seem to me to be perplexing questions in what I would d escribe as a disturbing case.

What is, perhaps, more germane to the matter in issue is that in dealing with the applicants ’ asylum requests the authorities were more concerned with the appearance of things than with the realities of the situation. The authorities had the right to refuse to recognise what was presented to them as a marriage between the applicants. In the English case of Mohamed v. Knott [1969] 1 Q. B. 1, on more extreme facts as to age, the Court of Appeal took a broader, more tolerant view. But concepts which determine public policy may legitimately differ from State to State. What is important here is that the non-recognition of the purported marriage could not exhaust the question of whether the applicants did or did not have a family life together. It is quite obvious that the authorities approached the sexual aspect as determinative. To them, the fact that the first applicant, who was underage, was in a sexual relationship with the second applicant meant that that relationship was utterly incompatible with the existence of family life between them. My colleagues in the present case have taken that view on board. I cannot do the same. I would add that, to my mind, it is not irrelevant that the couple had been provided by the relevant authorities with joint accommodation consisting of just one room with only one bed in it, for that shows how their relationship was objectively and genuinely perceived. I would also add that it is not without significance that no charges were ever brought against the second applicant for unlawful sexual intercourse with the first applicant. In circumstances such as the these, where the man was under 20 years old, a prosecution could be avoided by virtue of Article 187 ‑ 3 of the Swiss Penal Code, according to which

“187-3 Si au moment de l ’ acte, l ’ auteur avait moins de 20 ans et en cas de circonstances particulières ou si la victime a contracté mariage ou conclu un partenariat enregistré avec l ’ auteur, l ’ autorité compétente pourra renoncer à le poursuivre, à le renvoyer devant le tribunal ou à lui infliger une peine.”

The Swiss authorities failed, in my view, to discern the real meaning and extent of “family life” as an autonomous Convention concept. It is not easy to define it or to mark its boundaries and, certainly, it should not be regarded as being confined just to those sets of circumstances that have been thus classified in the past. It transcends stereotypes. I accept that there may be weak cases which could give rise to doubt, but, on the whole, it should not be too difficult to discern the existence of family life where there is one. Case-law offers some guidance, but more important than its wording is the spirit in which it must be read. I include here, indicatively, a short extract from the case of Şerife Yiğit v. Turkey ([GC], no. 3976/05, 2 November 2010) which, as I read it, makes it clear that the particular cases referred to are mere illustrations and that “family life” is a concept that is both broad and op en-ended. The Court said:

“93. By guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family. The existence or non-existence of “family life” is essentially a question of fact depending upon the real existence in practice of close personal ties (see K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 VII).

94. Article 8 applies to the “family life” of the “illegitimate” family as it does to that of the “legitimate” family (see Marckx , cited above, § 31 ; and Johnston and Others v. Ireland , 18 December 1986, § 55, Series A no. 112). The notion of the “family” is not confined solely to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside of marriage (see Keegan v. Ireland , 26 M ay 1994, § 44, Series A no. 290; and Al-Nashif v. Bulgaria , no. 50963/99, § 112, 20 June 2002).”

I conclude that the relationship between the applicants constituted “family life” within the meaning of Article 8 of the Convention.

However, in my opinion there was no need in this case to decide whether family life did or did not exist. My learned colleagues thought differently. On either view, the applicants have not shown that they had any right to remain in Switzerland. A joint removal would have posed no issue under Article 8. It was only because the applicants were separated by removing one of them, in the circumstances related above, that a question arose regarding the matter. That is actually their complaint. However, bearing in mind the very brief period of separation, seen in the light of what had preceded and what followed it, and taking into account that the applicants were quite free to move elsewhere together, it would be unrealistic, in my opinion, to say that there was a violation of Article 8. I am, in this regard, essentially in agreement with what is stated in paragraph 45 o f the judgment.