DISSENTING OPINION OF JUDGE S JO Č IEN Ė AND KARAKA Ş

1. We do not agree with the majority ’ s conclusion that there would not be a violation of Article 8 of the Convention in respect of all three children in the event of enforcement of the Federal Supreme Court ’ s judgment of 18 November 2011. We will analyse whether the reasons purporting to justify the actual measures adopted with regard to the applicants ’ enjoyment of their right to respect for family life were relevant and sufficient under Article 8 (see Hokkanen v. Finland , 23 September 1994, § 55, Series A no. 299 ‑ A, and Kutzner v. Germany , no. 46544/99 , § 65, ECHR 2002 ‑ I).

2. Turning to the specific circumstances of the present case, we must first assess whether the applicants would face major obstacles if they returned to their home country. Similarly to, for example, the case of Sen (cited in the judgment, paragraph 54), the applicants are living where they are because of their conscious decision to settle in Switzerland rather than remain in their home country. After their marriage in 2007 the second applicant joined her husband, the first applicant, in Switzerl and with the aim of establishing a family life there. However, the applicants were not prevented from maintaining the family life they had lived for many years. After the first applicant moved to Switzerland in 1997, he visited his family regularly and supported them financially. Furthermore, after the second applicant ’ s departure to Switzerland, the grandmother cared for the children for more than two years. Nevertheless, we also note that the first applicant has now been living in Switzerland for more than fifteen years and that the second applicant, his wife, has lived there almost six years; they both hold permanent residence permits, and their fourth child was born there. They have thus clearly established a family life in the respondent State. We therefore find that a return to their home country would put major obstacles in their way. This aspect is very important when assessing the proportionality and necessity test as regards the expulsion of aliens, especially children. We note on this point that the Court ’ s case-law requires clearly that the child ’ s best interests and well-being be taken into account , and in particular the seriousness of the difficulties which he or she is likely to encounter in the country of destination and the solidity of social, cultural and family ties both with the host country and with the country of destination (see Neulinger and Shuruk , § 146; see also , mutatis mutandis , Ãœner v. the Netherlands [GC], no. 46410/99 , § 57, ECHR 2006 ‑ XII).

3. Secondly, we turn to the question whether the ages of the children or any other additional aspect of their situation make them particularly dependent on their parents, the applicants. In view of the difference in age between L. and R. on the one hand and B. on the other, we consider it appropriate to assess the latter separately from her siblings.

4. In the case of B. we would stress that she was, and still is, of such a young age that she is heavily dependent on her parents ’ care and instruction. She was seven years old at the time of the application to the domestic authorities, and we do not find that the Government have proved that she would receive sufficient support from her grandmother or other relatives if she were sent back to Kosovo. Neither can it be expected that her siblings, L. and R., would take care of her. Although both are, or are soon to be, of majority age, they are nevertheless still young and need first to establish a life of their own. Furthermore, B. arrived in Switzerland at a very early age, and from the school certificates submitted it appears that she has integrated successfully and made remarkable progress in those three years. Unlike her older siblings she had not attended school for long in her home country before coming to Switzerland and presumably does not have such strong cultural, social and linguistic ties to her country of origin. Her return would therefore inevitably lead to a significant uprooting and major difficulties, which would be contrary to her best interests as a child. In addition, the application for family reunification in her case was made in time under domestic law, and the refusal of a residence permit for her on the ground of family reunification cannot be justified merely by the wrongful conduct of her parents, the applicants. The children cannot be held responsible or suffer for their parents ’ incorrect or even illegal behaviour. This would be against the best interests of the children, a principle which is very well developed and always stressed in the case-law of the European Court (see paragraph 51 of the judgment). We further note that B. ’ s teacher also expressed incomprehension regarding the proposed expulsion, stating that it would be against B. ’ s best interests (see paragraph 28 of the judgment). We therefore find that the respondent State failed to strike a fair balance between the applicants ’ interests on the one hand and its own interest in controlling immigration on the other. Accordingly, in the event of the enforcement of the Federal Supreme Court ’ s judgment of 18 November 2011, there would be, in our opinion, a violation of Article 8 of the Convention with regard to the situation of B.

5. Turning now to the cases of the two oldest siblings, R. and L., who were fifteen and fourteen at the time of the application to the domestic authorities, we understand that both were already of an age where they were able (or at least partly able) to care for themselves, even more so now that R. has reached the age of majority and L. is seventeen years old. We have also taken into account the fact that both children spent most of their years of compulsory education in their country of origin and still have family ties there. After all, it remained uncontested that their grandmother, however elderly, was still living there. Even though we believe that they still have strong social, cultural and linguistic ties to their home country, we nevertheless note that they have now lived in Switzerland for more than three years and that they too are apparently well integrated. Furthermore, we take the view that L. ’ s health, albeit improved, can also be taken as one more factor which must be considered when accessing the proportionality of the interference with the applicants ’ family life in the instant case. We also note that R. was and is still financially dependent on the applicants. Even bearing in mind the fact that the applicants, as well as their children, can travel freely between their home country and Switzerland (subject, of course, to visa requirements and immigration rules), we still believe that the family ties – and especially the effective and practical ties between all the siblings and their parents – can be maintained only in Switzerland. As the Convention shou l d be interpreted and applied in a manner which renders its rights practical and effective and not theoretical and illusory (see Stafford v. the United Kingdom [GC], no. 46295/99 , § 68, ECHR 2002 ‑ IV, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95 , § 74, ECHR 2002 ‑ VI) , we have come to the conclusion that the effective enjoyment of the family rights in this case can be fully realised only if all the family members are living in Switzerland. Furthermore, we think that the age of the child ren was a very important element to be taken into account when the domestic authorities were deciding the case. At the time of the application to the domestic authorities the two oldest siblings, R. and L., were fifteen and fourteen years old. Who can in reality prove the thesis relied on by the Swiss authorities in this case, to the effect that a child of fifteen or fourteen has less need of the parents ’ care than a child of seven? The Government simply cannot speculate on such matters. Furthermore, the seriousness of the difficulties which the children are likely to encounter in the country of destination, arriving there without the ir parents, were not analysed in depth by the Swiss courts.

We also note that L. is very well integrated in her Swiss school and that her high marks were such that she was expected to enter high school the following school year (see paragraph 28 of the judgment).

6. Even having regard to the fact that the applicants ’ conduct before the domestic authorities was not irreproachable , and that the request for family reunification for L. and R. was submitted out of time under domestic law, we are still of the opinion that the refusal of residence permits for R. and L. was a disproportionate measure under Article 8 of the Convention, one which was against the best interests of the children involved. It follows that the respondent State overstepped its margin of appreciation under Article 8 of the Convention in refusing to issue residence permits for R. and L.

7. We conclude that, in the event of the enforcement of the Federal Supreme Court ’ s judgment of 18 November 2011, there would also be a violation of Article 8 of the Convention with regard to the situation of R. and L .

PARTLY DISSENTING OPINION OF JUDGE SAJÓ

I am in agreement with my dissenting colleagues Judges J očienė and Karakaş in respect of child B., for the reasons expressed in point 4 of their opinion.

As to child L., I find that the logic of Neulinger is applicable here and that the best interests of the child are to be considered at the time of application of the judgment of the Court, that is, in 2013 in the present case. I would have allowed her to finish high school in Switzerland.

With regard to child R. I follow the judgment, given the State ’ s powers and duties to protect the public interest in matters of immigration.

[1] All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.