CASE OF EL GHATET v. SWITZERLAND
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The first applicant was born in 1952 and lives in Hausen (Canton of Aargau). The second applicant, who was born in 1990, is the son of the first applicant. He lives in Egypt. 6. The first applicant entered Switzerland in 1997, where he applied for asylum in the same year. At that time, the second applicant remained in Egypt, where he was cared for by his mother. The first applicant’s asylum application was rejected by the competent authorities. 7. In March 1999 the first applicant married a Swiss national and obtained a residence permit. In 2000 a daughter was born to the couple. 8. In 2002 the second applicant visited his father in Switzerland for three months based on a tourist visa valid for that period. 9. In July 2003 the second applicant re-entered Switzerland for purposes of family reunification with his father. 10. In February 2004 the first applicant was granted a permanent residence permit. In August 2004 he obtained Swiss nationality and has since held nationality of both Switzerland and Egypt. 11. After encountering difficulties in school and with his step-mother, the second applicant returned to Egypt in January 2005, where he was cared for by his mother and his paternal grandmother. 12. In 2006 the first applicant separated from his spouse. The latter continued to live in Switzerland with the couple’s daughter. 13. On 1 March 2006 the first applicant lodged a request for family reunification with the second applicant, who was 15 and a half years old at the time and for whom he had custody according to Egyptian law. 14. On 15 February 2007 the Migration Office of the Canton of Aargau refused that request. 15. On 12 March 2007 the applicant lodged an appeal against that decision with the Legal Unit of the Migration Office of the Canton of Aargau. 16. On 6 June 2007 that authority dismissed the appeal. 17. On 26 June 2007 the applicant lodged an appeal against that decision with the Court of Appeal in Foreigners’ Law (Rekursgericht im Ausländerrecht) of the Canton of Aargau. 18. On 7 September 2007 that court granted the applicant’s appeal. In a very detailed decision it noted that the requirements for family reunification under Article 17 § 2 third sentence of the Act on the Residence of Foreign Nationals (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer, ANAG) were not met (see relevant domestic law and practice paragraphs 3133 below). Largely basing its reasoning on Article 8 of the Convention, it considered, however, that the applicants’ interests in respect for their family life prevailed over those of the public. It ordered the Migration Office of the Canton of Aargau to arrange for a residence permit for the second applicant. 19. Subsequently, the Migration Office of the Canton of Aargau declared that it would grant a permanent residence permit to the second applicant for purposes of family reunification and, on 28 January 2008, transferred the file to the Federal Office of Migration to seek the required consent. On 4 March 2008 the latter refused to give its consent, finding that the requirements for family reunification were not met and that the decision of the court of the Canton of Aargau was in contradiction to the case-law of the Federal Supreme Court. 20. On 4 April 2008 the first applicant lodged an appeal against that decision with the Federal Administrative Court, both in his own name and in that of his son. 21. On 30 July 2009 the applicants informed the authorities that the situation of the second applicant had changed. His mother had moved to Kuwait with her new spouse and he was now cared for exclusively by his paternal grandmother. 22. On 2 February 2010 the Federal Administrative Court dismissed the appeal. It noted, first, that the requirements for family reunification under Article 17 § 2 third sentence of the Act on the Residence of Foreign Nationals were not met (see relevant domestic law and practice paragraphs 31-33 below). It found, second, that the applicants could not rely on Article 8 of the Convention, as the second applicant had reached the age of adulthood and was not dependant on the first applicant (see relevant domestic law and practice paragraph 33 below). 23. On 8 March 2010 the applicants lodged an appeal against that decision with the Federal Supreme Court. 24. On 5 July 2010 the Federal Supreme Court dismissed that appeal. It considered, in particular, that the relationship between the two applicants was not paramount (“vorrangig”), even though the first applicant had the right of custody for the second applicant according to Egyptian law. It noted that the first applicant had not applied for family reunification immediately after his arrival in Switzerland, that the second applicant was cared for by his mother and his grandmother in Egypt until he turned 18 years, that the second applicant had lived almost all of his life in Egypt and had more important social and personal ties to his country of origin, which would be negatively affected if he moved to Switzerland, and that he had returned to Egypt after having stayed with his father in Switzerland for one and a half years. It observed that the first applicant had, thus, at that time, preferred that the second applicant lived with his mother and that the second applicant would face even more severe challenges to integration now than he had during his first stay in Switzerland, given his age. While noting that the first applicant had a close relationship to his daughter in Switzerland and that he could, thus, not be expected to relocate to Egypt to live there with the second applicant, the court noted that the applicants had not submitted sufficient reasons to justify the second applicant’s reunion with his father in Switzerland. 25. Moreover, the Federal Supreme Court considered that the circumstances of the present case differed from those of Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, 1 December 2005. The latter concerned a situation where only one parent, the child’s mother, was still alive. The mother had tried to bring her child to the Netherlands as soon as possible after her arrival. Moreover, the child’s grandmother who cared for her in Ethiopia had taken the child out of school against the mother’s will and planned a forced marriage. 26. On 7 October 2010 the Court refused to apply Rule 39 of the Rules of the Court.