CASE OF SALIJA v. SWITZERLAND
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
6. The applicant was born in 1980 in Tetovo and lives in Golema Rečica in the municipality of Tetovo in “the former Yugoslav Republic of Macedonia”. He arrived in Switzerland in 1989 via family reunification and was granted a permanent residence permit. 7. On 1 July 1999 the applicant married a national of “the former Yugoslav Republic of Macedonia”, born in 1978, who arrived in Switzerland in 1990 and who also held a permanent residence permit. The couple has two children, born in 2001 and 2005, who are likewise nationals of “the former Yugoslav Republic of Macedonia”. 8. After leaving school, the applicant did not undergo professional training, but worked in a variety of jobs, namely as a postman, mailman, plasterer and construction worker, with brief periods of unemployment. 9. On 13 March 2003 the Zurich District Court convicted the applicant of embezzlement for having sold a rental car to a third person in September 2000 and gave him a suspended sentence of three months’ imprisonment. 10. On 16 December 2004 the Supreme Court of the Canton of Zurich convicted the applicant of homicide with indirect intent (Eventualvorsatz) and serious violations of the rules of road traffic. On 4 October 2000, while he was engaged in a car race on a public road with an acquaintance, the applicant, driving at a speed of at least 170 kilometres per hour, lost control of his car and crashed into a lamppost, which caused the death of his passenger. That court took the view that the applicant, by agreeing to engage in the race, had deliberately taken the risk of killing him. It found that the applicant had acted with a high degree of recklessness and sentenced him to five years and three months’ imprisonment. 11. The applicant’s appeals against this conviction were dismissed by the Cantonal Court of Cassation on 10 December 2005 and by the Federal Supreme Court on 28 March 2006. 12. On 25 April 2006 the applicant started serving his sentence. 13. On 30 September 2007 the Hinwil District Office (Statthalteramt) sentenced the applicant to a fine of 120 Swiss Francs (CHF) for the purchase and consumption of marihuana. 14. On 28 October 2009 the applicant was released on parole after having served two thirds of his sentence. 15. On 27 July 2009, after having heard the applicant, the Migration Office of the Canton of Zurich revoked the applicant’s permanent residence permit. It found that the conditions for revocation pursuant to, inter alia, Article 63 § 1 lit. a in conjunction with Article 62 lit. b of the Federal Act on Foreign Nationals (Ausländergesetz, AuG, see relevant domestic law and practice paragraph 27 below) were met. Ait concluded that the public interest in the applicant’s removal outweighed his interest in enjoying his family life with his wife and children in Switzerland. It ordered his expulsion pursuant to Article 66 § 1 of the Federal Act on Foreign Nationals. 16. On 30 September 2009 the government (Regierungsrat) of the Canton of Zurich dismissed the applicant’s appeal lodged on 27 August 2009. 17. On 10 February 2010 the Administrative Court of the Canton of Zurich dismissed the applicant’s appeal lodged on 20 October 2009. It considered that the applicant had committed a serious criminal offence, that he was not well integrated in Switzerland despite the length of his stay, that expert prognosis regarding the likelihood that he would reoffend was positive but did not rule out any such risk, that he spoke Albanian and was familiar with the culture in “the former Yugoslav Republic of Macedonia”, where he spent parts of his childhood and which he had visited since. It concluded that the decision to revoke his permanent residence permit was proportionate. Moreover, the court noted that the applicant’s wife was a national of “the former Yugoslav Republic of Macedonia” as well, knew Albanian and the country’s culture, and was not well integrated in Switzerland either. Observing that the couple’s children were five and nine years old and thus of an adaptable age, it concluded that the applicant’s wife and children could reasonably be expected to relocate to “the former Yugoslav Republic of Macedonia” with him. 18. On 9 March 2010 the applicant appealed that decision, arguing that the decision to revoke his permanent residence permit was disproportionate. 19. On 27 July 2010 the Federal Supreme Court dismissed the appeal. It considered that the main criminal offence, of which the applicant was convicted, intentional homicide, was a particularly serious one. While it acknowledged that he had lived in Switzerland for over twenty years, which had thus become the centre of his life, it found that he was neither professionally nor socially integrated. It considered that he had no stable employment, but considerable debts. Both he and his wife and children had benefitted significantly from social welfare. Moreover, the court considered that the applicant could reasonably (re-)integrate in “the former Yugoslav Republic of Macedonia”, considering that he spoke Albanian, was born there and had spent a part of his childhood there and had visited the country since. It observed that the same was true for his wife, who likewise originated from “the former Yugoslav Republic of Macedonia”, where she spent the first twelve years of her life and still had relatives. She knew Albanian and visited the country annually on holiday. At the same time, she was not well integrated in Switzerland as she did not undergo any professional training after leaving school, had received social welfare as from 2005 and only started to work in 2010. As far as their children were concerned, the court considered that they attended primary school and kindergarten, respectively, and were still of an adaptable age. The Federal Supreme Court concluded that the public interest in the applicant’s removal outweighed the applicant’s interest in remaining in Switzerland and enjoying respect for his family life there, also noting that his wife and children had a choice between either following him to “the former Yugoslav Republic of Macedonia” or remaining in Switzerland and maintaining contact through short but regular visits. 20. On 16 October 2010 the applicant left Switzerland in compliance with the expulsion order. 21. On 10 December 2010 the Federal Office for Migration issued an entry ban against the applicant for a period of nine years. 22. In late 2011 the applicant’s wife and children relocated to “the former Yugoslav Republic of Macedonia” to live with him. 23. On 14 May 2013 the Federal Administrative Court, on the applicant’s appeal, reduced the duration of the re-entry ban to seven years due to proportionality considerations. It found that the conditions in Article 67 §§ 2 lit. a and 3 of the Federal Act on Foreign Nationals for the issuance of an entry ban for a period of more than five years were met (see relevant domestic law and practice paragraph 26). It considered that the offence committed by the applicant was particularly serious and that he continued to be a serious threat to public order, notwithstanding his mostly good behaviour since the commission of the offence and positive personality development. It noted that the applicant could ask for a temporary suspension of the entry ban for humanitarian or other important reasons (Article 67 § 5 of the Federal Act on Foreign Nationals) and that the applicant’s wife, who originated from “the former Yugoslav Republic of Macedonia” herself, could visit him there together with their children and also maintain contact by various means of communication. 24. In August 2015, i.e. after almost four years, the applicant’s wife and children returned to Switzerland to avoid the expiry of their permanent residence permit pursuant to Article 61 § 2 of the Federal Act on Foreign Nationals (see relevant domestic law and practice paragraph 27) and because their socioeconomic living conditions in “the former Yugoslav Republic of Macedonia” were difficult. They live in Zurich.