Legal summary

May 2023

Ghadamian v. Switzerland - 21768/19

Judgment 9.5.2023 [Section III]

Article 8

Positive obligations

Article 8-1

Respect for private life

Refusal to issue residence permit to an elderly alien, resident for more than 50 years in Switzerland, albeit unlawfully since 2002, on account of an unenforced decision to expel him after his convictions for serious criminal offences: violation

Facts – The applicant, an Iranian national, entered Switzerland lawfully in 1969, aged twenty-nine, and obtained a residence permit. He had two sons with a woman whom he married in 1971. The couple divorced in 1989. In 1979 he was issued with a permanent residence permit.

Between 1988 and 2004 the applicant was sentenced to several terms of imprisonment totalling approximately five years for various criminal offences. In particular, in June 1999 the Cantonal Court of Appeal imposed a custodial sentence and ordered his expulsion from Switzerland for five years. In February 2000 the Aliens Police set the deadline for his expulsion at 15 March 2000. That decision became legally binding on 1 January 2002. The authorities invited the applicant to leave Switzerland in 2000, 2003 and 2011, without success.

In May 2008 and again in August 2015 the applicant requested the Migration Office to revoke the order for his expulsion and issue him with a residence permit for pensioners. His requests were refused. An appeal by the applicant against the last decision of the Migration Office was dismissed by the Administrative Court in June 2018 and by the Federal Supreme Court in October 2018. In December 2018 the Migration Office ordered him to leave the country by 11 December 2018. The applicant, who is now 83, continues to reside unlawfully in Switzerland.

Law – Article 8:

No family life could be found to exist between parents and their adult children without evidence of further elements of dependency. The applicant could not claim such elements of dependency in respect of his adult children, since he was autonomous in his daily life despite his advanced age. Nor were there any other elements amounting to “family life” between them. Accordingly, the issues raised by the present case related solely to the applicant’s private life.

The case concerned an alien seeking permission to remain rather than a “settled migrant”.

Where a foreign national had established his or her private life on the territory of a State while residing there unlawfully, a subsequent refusal to issue a residence permit gave rise to a violation of Article 8 only in exceptional circumstances. The applicant had established his private life in Switzerland over the thirty-three years in which he had been lawfully resident there. The Court would therefore weigh up the interests at stake on the basis of an examination of all the relevant facts and in the light of the factors, defined in its case-law, to be taken into account in determining whether a State was under a positive obligation to give an alien who was unlawfully resident in its territory permission to remain.

At the time when the Federal Supreme Court had rejected his request for a residence permit, the applicant was aware that his presence in Switzerland had been unlawful since 1 January 2002. He had been under an obligation to leave the country when he received the order to do so, having been lawfully denied residence. In accordance with the national legislation, the expulsion order could not be reviewed since there were no valid grounds for doing so.

The serious criminal offences committed by the applicant had been a decisive factor in the order of February 2000 for his expulsion and in the Federal Supreme Court’s refusal in October 2018 to grant him a residence permit. Although he had not been accused since 2006 of an offence of this kind that might suggest that he posed a threat to public safety, he had been convicted on several occasions of being illegally resident. In view of the applicant’s repeated criminal convictions since 1999, the Court accepted that the Swiss authorities had had a certain interest in seeking his expulsion on public-order grounds.

The domestic authorities had attempted to enforce the expulsion order but had encountered difficulties, in particular, in establishing the identity of the applicant, who had not presented the valid passport that was needed in order for Iran to accept his return. However, the applicant had returned to his country of origin on occasions and would presumably have had to present his passport at the border. It was therefore doubtful whether the respondent State had taken all necessary and possible steps to obtain the applicant’s passport and expel him.

The applicant had acted in bad faith by residing unlawfully in Switzerland for the past twenty years, and had actively resisted the enforcement of the expulsion order. In that connection the Federal Supreme Court had noted that he could not claim any rights based on his own failure to comply with the legal order and the final decisions in his case.

The applicant had been living in Switzerland for approximately fifty-four years if the Court took as its point of reference the time of enforcement of the measure in question, as it usually did where the person concerned had not yet been expelled. It was clear that he had been resident there for a very long time. He had been living in the country for approximately forty-nine years when the Federal Supreme Court rejected his application for a residence permit, albeit that he had been unlawfully resident for sixteen years. For that reason, the total duration of the applicant’s residence could not be accorded the same weight as would have been the case had he had a valid residence permit throughout. Nevertheless, the applicant had established close ties with Switzerland dating back to the thirty-three-year period in which he had been lawfully resident following his arrival in the country. He had lived there for the great majority of his life, during which time he had had two sons who lived with their five children in Switzerland and to whom he claimed to be very close. Moreover, it was clear from the applicant’s conduct that he had integrated into working life in Switzerland, as he had carried on an occupation there and was in receipt of a retirement pension.

It was indisputable that, even though he was physically and economically independent, had no major health problems and was not married, the applicant would face a challenging situation if he were returned to Iran at his time of life. He would be separated from his children and grandchildren and would most likely find it difficult to reintegrate, bearing in mind that he had only returned to his country of origin occasionally and had stated that his brothers and sisters were no longer there.

Regard had to be had to the particular circumstances surrounding the applicant’s case. In the light of those circumstances, the considerations invoked by the national authorities regarding the previous binding decisions ordering the applicant to leave the country, his unlawful residence since 2002 and his previous convictions for serious criminal offences could indeed be regarded as relevant reasons, but could not be said to be sufficient. This was so, especially, in view of the extremely long time for which he had been resident, the fact that he had already established ties in the country and it had become his centre of interest while he was lawfully resident, his advanced age, the uncertain nature of his remaining personal ties with his country of origin, the fact that he had not committed any serious criminal offences since 2005 and the insufficient efforts made by the national authorities for over twenty years to expel him.

Furthermore, although the Administrative Court, in dismissing the applicant’s appeal in June 2018, had carried out a relatively detailed examination of his personal situation and the possibility of granting him a residence permit, the Federal Supreme Court in its judgment of October 2018 had dismissed the applicant’s appeal without conducting an in-depth assessment of the criteria under Article 8 of the Convention and without fully weighing up all the relevant aspects of the case.

The domestic authorities, despite their margin of appreciation, had not demonstrated in the particular circumstances of the present case that they had struck a fair balance between the competing interests, but instead had attributed excessive weight to the public interest by refusing to issue the applicant with a residence permit for pensioners.

Conclusion : violation (unanimously).

Article 41: The finding of a violation constituted sufficient just satisfaction in respect of any non‑pecuniary damage sustained by the applicant.

(See also Slivenko v. Latvia [GC], 48321/99, 9 October 2003, Legal summary ; Jeunesse v. the Netherlands [GC], 12738/10, 3 October 2014, Legal summary ; A.S. v. Switzerland , 39350/13 , 30 June 2015; Danelyan v. Switzerland (dec.), 76424/14 and 76435/14 , 29 May 2018; Belli and Arquier‑Martinez v. Switzerland , 65550/13, 11 December 2018, Legal summary ; I.M. v. Switzerland , 23887/16, 9 April 2019, Legal summary ; Pormes v. the Netherlands , 25402/14, 28 July 2020, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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