CASE OF ABUHMAID v. UKRAINE
Preliminary objection joined to merits and dismissed (Article 34 - Victim);Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life;Positive obligations)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
6. The applicant was born in 1970 in Rafah, Gaza. He currently lives in Kyiv. 7. Between 1977 and 1993 the applicant lived mainly in Rafah. He claimed to have been involved in the activities of Fatah, the Palestinian political organisation. 8. In 1993 the applicant went to Ukraine to study. The same year he entered Kyiv Polytechnic University. In 1999 the applicant finished his studies at the University and obtained a master’s degree in biomedical electronics. In 2001 the applicant enrolled in a postgraduate course at the same University. In 2003 he withdrew from the course as he had no money to pursue his studies. The applicant claims that since 2003 he has been working as a freelance translator/interpreter for the Embassy of Libya in Kyiv and for various private companies (the applicant speaks fluent Arabic, English and Russian, and understands Ukrainian). 9. In 1998 the applicant married a Ukrainian national. In 2007 they divorced. In 2011 the applicant married another Ukrainian national; their marriage lasted for less than two months. In March 2013 the applicant entered into a relationship with another Ukrainian national. In January 2014 they married and currently live together as a family. 10. The applicant visited Gaza twice in 2000. According to the applicant, one of the visits was due to his father’s death. Since December 2000 the applicant has remained in Ukraine without leaving its territory. 11. In 2001 the applicant was issued with a registration card by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”). The card bears the name “Hicham Ahmad Sadiddin Hmeid”. The applicant attributes the difference in the spelling of his name to varying transliterations of Arabic names. Similar cards were issued to the applicant’s mother and sister, who currently reside in Rafah. 12. Prior to November 2009 the applicant was staying in Ukraine on the basis of passports of limited duration, issued by the Palestinian Authority, and temporary residence permits, which were regularly extended by the Ukrainian police. In 2008-09 an extension of the applicant’s residence permit was requested by the Embassy of Palestine and granted by the Ukrainian authorities, as at the time access to the Palestinian territories was problematic. 13. In 2003 the applicant started preparing documents to apply for a permanent residence permit on the basis of his marriage to a Ukrainian national. He could not complete his application because his then brother-in-law was opposed to the applicant being registered as resident in the flat in which the applicant, his then wife and brother-in-law resided at the time. 14. On 9 March 2010 the applicant applied to the migration unit within the Golosiyivkyy District Police Department in Kyiv for an extension of his residence permit. The police noted that the applicant’s residence permit had expired in November 2009 and that since then the applicant had been in Ukraine in violation of migration regulations. 15. On 10 March 2010, at the request of the police, the Golosiyivskyy District Court in Kyiv, relying on Article 203 § 1 of the Code on Administrative Offences, ordered the applicant to pay a fine for violating migration regulations. 16. The applicant’s identification documents were kept by the Golosiyivkyy District Police Department pending the outcome of the applicant’s request for an extension of his residence permit. 17. According to the applicant, about a week later his residence permit was extended until 15 September 2011. The Government contested that submission, stating that no extension had been granted. 18. In the meantime, on 11 March 2010 the applicant was stopped by officers of the Solomyanskyy District Police Department in Kyiv for an identity check. As he had no identification documents, the applicant was arrested and taken to the police station. The applicant stated that his explanation that his documents were being kept at another police department had not been taken into account. On 12 March 2010 the applicant was taken to the Solomyanskyy District Court in Kyiv, which, having examined the material submitted by the police, fined the applicant for failure to carry identification and foreigner’s registration documents. 19. On 28 April 2010 the applicant was stopped by officers of the Desnyanskyy District Police Department in Kyiv for an identity check. Having noted that the applicant was living in a flat in Kyiv without a rent contract or official registration, the officers asked the Desnyanskyy District Court in Kyiv to fine the applicant. By a decision of 28 April 2010, the court ordered the applicant to pay a fine for violating migration regulations. 20. The applicant did not appeal against the court decisions convicting him of administrative offences, as he had no legal representation and took the view that those decisions would not have any consequences for his stay in Ukraine. 21. On 16 September 2011 the applicant went to the migration unit of the Chief Police Department in Kyiv to apply for an extension of his residence permit. On the way he was stopped by officers of the migration unit of the Solomyanskyy Police Department in Kyiv, who informed the applicant that there had been an order deporting him from Ukraine. The officers seized the documents the applicant had with him for his application for an extension of his residence permit, including his passport and marriage certificate. The documents have not been returned to the applicant. The applicant claimed that for that reason he could not provide a copy of his most recent residence permit. 22. Subsequently the applicant contacted a lawyer, who helped him to obtain copies of the decisions concerning his expulsion and to lodge an appeal against them (see paragraph 28 below). 23. On 17 March 2010 the Solomyanskyy District Police Department in Kyiv issued a decision stating that the applicant should be removed from Ukraine for violation of migration regulations and banning him from entry to the country until 12 March 2015 under section 32 of the Legal Status of Foreigners and Stateless Persons Act 1994 (see paragraphs 64-67 below). In the decision, it was noted that the applicant had come to Ukraine in 2005 for a private visit; that after the expiry of his residence permit he had remained in Ukraine illegally; that he had not requested an extension of his residence permit; that he had no relatives in Ukraine; that he had no work permit; that he had earned his life working at a market in Kyiv; and that he was “known to the police”. 24. According to the Government, the applicant was informed of the decision of 17 March 2010 on the same day and asked for a court hearing on his expulsion case (see paragraph 27 below) in his absence. In support, they provided copies of written statements allegedly signed by the applicant and by a translator. 25. The applicant claimed that he had not been informed of that decision and that the written statements in that regard had been forged by the police. The applicant also argued that he had not been aware that subsequently, in May 2010, the police had initiated court proceedings for him to be forcibly removed from Ukraine. 26. In their written submissions made in the course of those proceedings, the police reiterated the findings in the decision of 17 March 2010 and requested the Kyiv Administrative Court to order the applicant’s immediate forcible removal and his placement in a facility for temporary detention of foreigners and stateless persons for the period necessary to prepare the removal. In the latter regard, the police argued that there were reasons to believe that the applicant would try to remain illegally in Ukraine. 27. On 18 May 2010 the Kyiv Administrative Court heard the case in the absence of the parties, having noted that the applicant had submitted a written statement that he did not wish to be present and that he agreed with the expulsion decision, and also that the police were not able to attend the hearing because of their high workload. The court relied on the findings in the decision of 17 March 2010 and allowed the claims of the police. In its decision, the court noted that its ruling was to be enforced immediately and that it could be appealed against within ten days under Articles 185-187 of the Code of Administrative Justice. If no appeal was lodged against the decision it would enter into force after the expiry of the ten-day period. 28. According to the applicant, he was informed of the decision of 18 May 2010 on 25 November 2011. On 29 November 2011 a lawyer submitted an appeal on the applicant’s behalf, together with a request for renewal of the ten-day time-limit, to the Kyiv Administrative Court for further transfer to the Kyiv Administrative Court of Appeal. 29. In the appeal, the applicant argued that he had been studying in Ukraine between 1993 and 1999. In December 2000 he had returned from Palestine to Ukraine fearing persecution by the Israeli authorities. Without providing any further details, the applicant stated that he had been arrested and tortured by the Israeli authorities with the aim of obtaining his confession of cooperation with Hamas. The applicant further noted that he was married to a Ukrainian national, that he had been officially allowed to stay in Ukraine until 16 September 2011, and that on that day the police had seized his identification documents and ordered him to leave Ukraine. The applicant also expressed the wish to apply for asylum once the Migration Service started accepting asylum applications according to the new regulations (see paragraphs 75-79 below). 30. The applicant complained that the first-instance court had failed to examine all the facts pertinent to the case and to hear him. According to the appeal, the applicant had not been informed of the decision of 17 March 2010 and had not asked the court to hear the case in his absence. 31. He also argued that the first-instance court had not checked whether it was safe for the applicant to return to Palestine and had not been informed of the circumstances essential for the outcome of his case. In particular, the applicant argued that the Ukrainian police had withheld the information that he had a valid residence permit and that he had used to be married to a Ukrainian national. The applicant complained that the expulsion decision of 17 March 2010 had been taken in violation of Articles 2, 3 and 5 of the Convention, given the human rights situation in Palestine, and in violation of the domestic procedure. 32. On 14 November 2012 the Kyiv Administrative Court of Appeal heard the case in the absence of the parties. It is unknown whether the applicant or his lawyer intended to take part in the hearing and, if so, whether they informed the Court of Appeal accordingly. 33. The appeal was rejected as unsubstantiated. In particular, the Court of Appeal relied fully on the findings of the first-instance court and noted that “the claimant, having been removed from Ukraine, had crossed the Ukrainian border despite the existing entry ban”. The decision entered into force immediately. 34. On 6 December 2012 the applicant lodged with the Higher Administrative Court a cassation appeal challenging the factual and legal findings of the lower courts. The applicant also complained that his expulsion from Ukraine would be contrary to Article 8 of the Convention given his personal and family ties with that country. 35. On 3 October 2013 the Higher Administrative Court overturned the lower courts’ decisions on the ground that they had failed to examine whether there were grounds preventing the applicant’s expulsion under Ukrainian law. The Higher Administrative Court also noted that the lower courts had not given due consideration to the applicant’s private and family life interests in Ukraine. The case was thus sent for re-examination to the first-instance court. 36. After another round of examination by the courts at the first and appeal levels of jurisdiction resulting in a decision ordering the applicant’s forcible removal from Ukraine, in February 2014 the case was sent back to the start again by the Higher Administrative Court, for the same reasons as in its decision of 3 October 2013. 37. On 29 October 2014 the Desnyanskyy District Court, to which the case was eventually remitted, refused the application for the applicant’s forcible expulsion. 38. The court held that the applicant’s forcible removal from Ukraine would be in violation of his right to respect of family life as guaranteed by Article 8 of the Convention, having regard in particular to the fact that the applicant was married to a Ukrainian national. It also found that, in the event of his removal to Palestine, the applicant’s life and security would be endangered, given the armed conflict on that territory, which would entail a violation of Ukraine’s commitments under Articles 3 and 5 of the Convention. The court took the view that the applicant had grounds to be given the status of refugee or of a person in need of complementary protection. The court also noted that, by operation of the statutory one-year time-limit (see paragraph 58 below), the applicant could no longer be considered as having committed the administrative offences of which he had been convicted in 2010 (see paragraphs 15, 18 and 19 above). 39. That decision was not appealed against and became final. 40. On 25 January 2012 the applicant lodged an asylum application with the State Migration Service. According to the applicant, in his application he stated that he feared persecution by Hamas if returned to Gaza, as he had been a member of Fatah. 41. According to the applicant, during the assessment of his asylum case migration officers questioned him on two occasions. They asked formal questions not related to the substance of his allegations. 42. On 1 August 2012 the applicant received a written notice dated 21 June 2012 that his asylum application had been refused by a decision of the State Migration Service of 17 May 2012 and that he could challenge it before the courts. No copy of the decision was given to the applicant. 43. On 3 August 2012 the applicant challenged the refusal of his asylum application before the Kyiv Administrative Court. In particular, the applicant argued that he had not been informed of the reasons for that decision, and that this prevented him from effectively appealing against it. The applicant also argued that the examination of his application had not been thorough and objective, as his questioning had been formalistic and no additional information had been sought concerning the general situation in Palestine or the applicant’s personal circumstances from other State authorities, such as the State Security Service, or from the applicant himself, to check the reliability of his submissions. The applicant stated that he had not been given access to the evidence in the inquiry. He maintained his allegation that he was at risk of persecution by Hamas, and also argued that if returned to Gaza, as a male Palestinian he ran a real risk of ill-treatment by the Israeli authorities, even though he did not support Hamas. In that regard, he referred to the reports of Amnesty International and Human Rights Watch concerning the human rights situation in Palestine in 2012. The applicant also contended that the Migration Service had disregarded that, as a Palestinian refugee registered with UNRWA and outside its field of operation he was entitled to the same protection in Ukraine as refugees under the United Nations Convention Relating to the Status of Refugees of 1951. 44. On 20 September 2012 the court rejected the applicant’s case, finding that the Migration Service had examined the matter thoroughly and fully and that the applicant’s arguments were unsubstantiated. In particular, the court noted that the material relating to the applicant’s asylum proceedings demonstrated that he did not run an individual and real risk of persecution by the Palestinian authorities, as Hamas and Fatah had entered into negotiations concerning a transitional government for Palestinian territories; he had not been subjected to such persecution at any time; the applicant had not provided any evidence that he would not be able to avail himself of the protection of his country of origin; he had travelled freely to and from Palestine; all his family lived there; and he did not face criminal prosecution there. The court also noted that the applicant had left his country of origin voluntarily for economic and personal reasons; he had had his residence permit in Ukraine repeatedly extended for personal reasons; and he had requested asylum only after he had not been able to legalise his further stay in Ukraine. Relying on the latter ground, the court found that the applicant had missed the time-limit for lodging an asylum application pursuant to Article 5 of the Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011. On the whole, the court found that it had been for the applicant to provide documents or persuasive arguments demonstrating that he had run a real and personal risk of persecution, which he had failed to do. 45. On 25 October 2012 the applicant lodged an appeal with the Kyiv Administrative Court of Appeal. In particular, he stated that his allegations of risk of persecution by Hamas and by the Israeli authorities were, inter alia, supported by the fact that his passport had been issued by the Palestinian Authority associated with Fatah, by his registration card issued by the UNRWA, and by various international reports, which neither the Migration Service nor the court of first instance had sought to obtain or examine. According to the applicant, the court’s review of his case had not been full or thorough, thus falling short of the requirements of the Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011, as interpreted by the Plenary Higher Administrative Court (see paragraphs 80-86 below). 46. On 4 December 2012 the Court of Appeal rejected the applicant’s appeal, having agreed with the first-instance court in that the applicant had failed to substantiate his asylum application as required by the national law and pertinent international documents, including the European Union Council Directive of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status and the Guidelines on procedures and criteria for determining refugee status under the 1951 Geneva Convention, issued by the UNHCR in 2011. 47. The applicant appealed in cassation, stating that the lower courts had not fully examined the material pertinent to his case, which had resulted in a wrong dismissal of his asylum request, in violation of Articles 3, 8 and 13 of the Convention. As to Article 8, the applicant noted that he had studied in Ukraine between 1993 and 1999, that since 2000 he was permanently resident on its territory, and that he was married to a Ukrainian national. 48. On 7 February 2013 the Higher Administrative Court rejected the applicant’s cassation appeal, having found no elements demonstrating that the lower courts had erred in the application of substantive or procedural law or that review of the evidence in the case was required. 49. In November 2014 the applicant lodged a new asylum application with the State Migration Service. 50. On 24 December 2014 the Kyiv Department of the State Migration Service refused to examine the application, finding that it was wholly unsubstantiated. 51. On 20 July 2015 the Kyiv Administrative Court overturned that decision, having found that the State Migration Service had failed to thoroughly examine the matter. The court in particular found that, although the arguments on which the applicant’s new application for asylum had been based were the same as in the applicant’s initial application, the new application needed to be reconsidered in the light of the decision of the Desnyanskyy District Court of 29 October 2014 and on the basis of the new Act on the Legal Status of Foreigners and Stateless Persons, which had entered into force on 25 December 2011. It therefore ordered the State Migration Service to reconsider the applicant’s new asylum application. 52. The reconsideration of the applicant’s new asylum application is currently pending. According to the Government, by operation of section 1 of the Refugees and Persons in Need of Complementary or Temporary Protection Act (see paragraph 79 below), this gives the applicant a lawful ground to stay in Ukraine for the duration of the said reconsideration. 53. As he could not obtain asylum in Ukraine and in order to use all possible opportunities to legalise his stay in Ukraine in order to evade expulsion, in 2014 the applicant applied for leave to immigrate, principally relying on the fact that he was married to a Ukrainian citizen. The Migration Service refused to examine his application as there were inconsistences in the spelling of his name in the applicant’s asylum seeker’s certificate and in his passport and marriage certificate. The applicant’s requests for the relevant changes to be made in the documents were allegedly ignored by the authorities. 54. The applicant further claimed that an official from the Migration Service told him that he would have to leave Ukraine and to apply for leave to immigrate from abroad in order to obtain leave to enter Ukraine lawfully. 55. According to the applicant, he could not leave Ukraine as he had nowhere to go. In Palestine his life and health would be endangered and he had not maintained close links with the place where he lived before he had moved to Ukraine. In his view, he could not apply for leave to immigrate into Ukraine, as he could not be considered as staying on its territory “on lawful grounds”, which was required by the Immigration Act (see paragraph 74 below). According to the Government, the applicant could not apply for leave to immigrate while his asylum application was being examined. Furthermore, pursuant to Article 4 § 3 (1) of the Immigration Act leave to immigrate could be granted to an alien who had been married to a Ukrainian citizen for over two years (see paragraph 74 below). At the time, the applicant’s marriage had lasted for less than two years. Thus, no leave to immigrate could be granted to him on that ground. 56. The parties did not inform the Court of any further developments in that regard.