CASE OF M.P.E.V. AND OTHERS v. SWITZERLAND
Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Ecuador)
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens
5. The first and second applicants were born in 1969, and the third and fourth applicants in 1986 and 1999 respectively. They live in Geneva. 6. The first and second applicants married on 25 December 1988 in Ecuador and brought up the third and fourth applicants together. The third applicant is the second applicant’s daughter and the first applicant’s stepdaughter; the fourth applicant is the first and second applicants’ daughter. 7. Between 1995 and 1999 the applicants sought asylum in Switzerland on three occasions. Each time their applications were rejected they returned to Ecuador. 8. On 1 January 2002 the applicants, having re-entered Swiss territory, filed a fresh request for asylum. The first and second applicants claimed that they had been tortured and had received death threats from the Ecuadorian police after the first applicant had attended two political demonstrations in Quito. 9. On 4 February 2002 the Swiss Federal Office for Refugees (“the Refugee Office”) rejected the applicants’ request. 10. On 1 March 2005 the first applicant was convicted of selling stolen goods and was given a three-month suspended prison sentence and fined 2,000 francs (CHF). On 15 October 2007 he was convicted of driving without a valid licence and sentenced to 80 hours of community service. On 9 April 2008 he was convicted of attempting to steal perfumes in a shopping centre and was sentenced to 120 hours of community service. On 14 April 2009 he was convicted of buying stolen goods and given a ninemonth suspended sentence and fined 1,000 CHF. The suspension of his previous sentence having been revoked, he served this sentence as from December 2009. 11. On 24 October 2007 the Federal Administrative Court quashed the decision of 4 February 2002 and ordered the Refugee Office to review the applicants’ request. It considered that the information contained in medical records regarding the first applicant’s state of mental health drawn up in Ecuador in 2001 might be a reason to grant refugee status to the applicants. According to medical certificates, the first applicant suffered from posttraumatic stress disorder (PTSD), depression and schizoaffective disorder. He had been hospitalised on several occasions after attempting to commit suicide. 12. In May 2009 the first and the second applicants separated. Their young daughter, the fourth applicant, stayed with the second applicant, who obtained full parental authority, while the first applicant was granted extended access, including the right to see her every Wednesday, every second weekend and for half of the school holidays. 13. On 27 October 2009 the Refugee Office granted the third applicant a residence permit on humanitarian grounds. She then withdrew her asylum request and applied for Swiss citizenship, which was granted on 17 September 2012. 14. On 20 March 2012 the Refugee Office, following a fresh examination of the facts, rejected the remaining applicants’ request for asylum. On 17 April 2012 they lodged an administrative appeal, arguing, inter alia, that they continued to have a close family relationship even after the first two applicants had separated. 15. On 7 September 2012 the Federal Administrative Court partially reversed the Refugee Office’s decision. The court specified, at the outset, that the decisions given by the Refugee Office could be contested before the Federal Administrative Court, whose decision was final. 16. The court also observed that the first and second applicants had separated and ceased living together, and that the fourth applicant usually lived with her mother. Accordingly, the family unit had ceased to exist and the principles established under Article 8 of the Convention no longer applied. As a consequence, each applicant’s residence rights had to be examined separately. The court considered that this approach was even more justified in view of the first applicant’s behaviour and his criminal record. 17. The court further observed that the fourth applicant was then thirteen years old and had from the age of two grown up in Switzerland, where she had attended school and was completely integrated. It appeared that she did not have any practical knowledge of her country of origin, having never returned after her arrival in Switzerland, and that she hardly spoke Spanish, Ecuador’s main language. Under these circumstances, the court considered that sending her back would amount to an uprooting of excessive rigidity (un déracinement d’une rigueur excessive) and granted her and her mother temporary residence (admission provisoire) in Switzerland for a further year, renewable on a yearly basis thereafter. 18. Regarding the first applicant, the Federal Administrative Court considered his expulsion to be lawful. The court observed, at the outset, that he had not established that he would be at any risk on his return to Ecuador. The court further considered that his state of health gave reason for concern, since he suffered from PTSD and had made several suicide attempts. However, the court observed that Ecuador had a health system which, even if it could not be compared to the Swiss system, was nevertheless reliable. The court considered that the applicant would have access to specialist care in the main urban centres of the country. 19. The court further noted that the first applicant’s attending doctors considered that his return to Ecuador was in itself likely to jeopardise his health, irrespective of the medical treatment he received. Furthermore, he would be confronted with serious social problems. However, the Federal Administrative Court considered that, under the pertinent legislation, the applicant’s criminal record excluded him from being granted temporary residence. The court noted in this context that the applicant had, over a longer period of time, acquired a total of 1465 stolen goods (primarily gold jewellery) deriving from various burglaries.