CASE OF Z.H. AND R.H. v. SWITZERLAND
No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Positive obligations;Article 8-1 - Respect for family life)
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra
5. The applicants were born on 22 April 1996 and 13 June 1992 respectively and live in Geneva. 6. On 17 September 2010, the applicants, who are cousins, contracted a religious marriage in Iran, where they were residing illegally. At the time, the first applicant was 14 years old and the second applicant 18 years old. Their religious marriage was not registered in Iran. 7. On 18 September 2011 the applicants applied for asylum in Switzerland, which they had entered from Italy on an unspecified date. Both applicants had been already registered as asylum seekers in Italy. 8. On 8 December 2011 and 26 March 2012 the Federal Office of Migration (the “FOM”) rejected the applicants’ asylum request, considering that Italy was the responsible State by virtue of Regulation no. 343/2003/EC (the “Dublin Regulation”). 9. On 19 December 2011, the first applicant had a legal guardian appointed by the Guardianship Court (Tribunal tutélaire, now Tribunal de protection de l’adulte et de l’enfant). 10. On 20 March 2012 the Federal Administrative Court (the “FAC”) rejected the second applicant’s appeal against the FOM’s decision. The FAC noted that the applicants had failed to submit a certificate of marriage and that in any event their alleged religious marriage could not be validly recognised in Switzerland, pursuant to Article 45 of the Federal Act on Civil International Law, because it was illegal under the relevant provision of the Afghan Civil Code, which contained an absolute prohibition on marriage for women under 15 years of age, while the first applicant was 14 years old. In any case, independently of the applicable Afghan law, the applicant’s marriage was manifestly incompatible with Swiss ordre public, since having sexual intercourse with a child under the age of 16 was a crime under Article 187-1 of the Swiss Criminal Code. The first applicant could therefore not be qualified as a member of the second applicant’s family under the Dublin Regulation and the applicants could not claim any right to family life under Article 8 of the Convention. The decision against the first applicant entered into force on 5 April 2012, as the second applicant had not appealed against it. 11. On 3 May 2012 the FOM decided to reexamine the first applicant’s asylum request in Switzerland. Following this decision, the second applicant requested that his own asylum request be also reexamined in order to preserve the family unity. The second applicant’s request was rejected by the FOM on procedural grounds: as the applicant’s claim was deemed without prospects of success, he had been asked an advance judicial fee of 600 Swiss Francs (“CHF”), which he had failed to pay. 12. The second applicant was expelled to Italy on 4 September 2012. However, on 7 September 2012 he returned illegally to Switzerland, where he could see the first applicant “intermittently”, in the applicants’ own words. 13. On 18 September 2012 the applicants lodged the present application before this Court. 14. On 21 December 2012 the second applicant again requested the reexamination of his asylum request, which was rejected by the FOM on 10 January 2013 because the second applicant had again failed to pay the CHF 600 advance judicial fee. 15. On 18 March 2013, the applicants requested the recognition of their religious marriage in Switzerland. The first applicant was then 16 years and 11 months old. 16. On 28 November 2013, the FAC examined the second applicant’s appeal against the FOM’s decision of 10 January 2013 and ruled in favour of the second applicant. The FAC considered 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. 17. On 20 February 2014, the Government requested that the application be struck out of the list of cases pursuant to Article 37 § 1 (c) of the Convention. 18. On 1 April 2014, in reply to the Government’s request, the applicants submitted that their application included a complaint about a past violation, not only a prospective one, namely that on 4 September 2012 the second applicant had been expelled to Italy and thus separated from the first applicant. Such forcible separation constituted a violation of the applicants’ right to respect for their family life. 19. On 2 June 2014, the Court of First Instance of the Canton of Geneva recognised the validity of the applicants’ religious marriage contracted in Iran. 20. On 9 January 2015 the applicants informed the Court that they had been granted asylum in Switzerland by a decision of 17 October 2014. 21. On 23 June 2015, referring to their submissions of 1st April 2014, the applicants informed the Court that they wished to maintain their application, considering that as the alleged past violation of their right to respect for family life had neither been acknowledged nor remedied they had not lost victim status even if they had now obtained asylum in Switzerland.