SELMANI v. SWITZERLAND
Inadmissible
Christos Rozakis
The applicants, Yugoslav citizens of Kosovo origin, are mother and daughter born in 1974 and 1997, respectively. The first applicant, who works as a cleaning lady, is married to A.S., a Yugoslav citizen of Kosovo origin born in 1971 and currently detained in Lenzburg prison. A.S. is the father of the second applicant. A.S. entered Switzerland in 1989 where he obtained a residence permit (Aufenthaltsbewilligung) and worked as a manual worker and taxi driver. On 17 January 1997 he married the first applicant in Switzerland who henceforth also obtained a residence permit. On 10 October 1997, their daughter, the second applicant, was born in Switzerland. On 14 September 1998, A.S. was remanded in custody. On 16 September 1999 the Criminal Court (Strafgericht) of the Canton of Basel-Landschaft sentenced A.S. to 8 years’ imprisonment and 15 years’ prohibition to enter Switzerland on account of offences against the Narcotics Act (Betäubungsmittelgesetz). Upon, appeal, the Basel-Landschaft Court of Appeal (Obergericht) reduced the sentence to six years’ imprisonment. On 3 January 2000 the Basel-Landschaft Aliens’ Police (Fremdenpolizei) decided not to prolong the residence permits of the applicants and A.S. and ordered the applicants to leave Switzerland by 31 May 2000, whereas A.S. was ordered to leave upon termination of his prison sentence. The applicants’ appeal against this decision was dismissed by the Basel-Landschaft Government (Regierungsrat) on 6 June 2000 on the grounds that the applicants depended on public welfare, and as the conduct of A.S. did not permit the conclusion that he was willing to integrate in Switzerland. On 11 October 2000 the Basel-Landschaft Administrative Court (Verwaltungsgericht) dismissed the applicants’ further appeal. The court noted that the applicants, if they returned to their home country, would in fact be separated from A.S. However, in the court’s opinion, their family life was already considerably limited in view of the prison sentence of A.S. Given the public interest in an orderly implementation of the prison sentence, the applicants’ additional separation from A.S. appeared insignificant (geringfügig), particularly as they had the possibility of communicating by mail and telephone with him. The court furthermore confirmed the decision of the Basel-Landschaft Government according to which the refusal to prolong the applicants’ residence permit was based on S. 10 § 1 (d) of the Federal Aliens’ Act (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer) which envisaged a foreigner’s expulsion if he or she depended continuously and substantially on public welfare. The applicants filed an administrative law appeal (Verwaltungsgerichts-beschwerde) with the Federal Court which the latter declared inadmissible on 27 March 2001. It noted that S. 100 § 1 (b)(3) of the Organisation of Justice Act (Organisationsgesetz) only permitted administrative law appeals if the complainant could invoke an “entitlement”. In cases of family separation this required as a rule that one of the family members had a “consolidated right to stay” (gefestigtes Anwesenheitsrecht) in Switzerland, for instance on account of Swiss nationality or of a right to domicile (Niederlassungsbewilligung), which was not the case for the present applicants. The judgment continued: “The only basis for such a right could ... at most, be Article 8 § 1 of the Convention and Article 13 § 1 of the Federal Constitution (Bundesverfassung), in that the family of applicants would provisionally be separated even more insofar as wife and child would have to leave Switzerland already before their husband and father is released from prison. However, for the applicants to live together as a family is in any event excluded until release from prison. The possible direct contacts between the detainee and his family will be limited until then to short visits in prison. Nevertheless, a right of the (remaining) family to stay in Switzerland merely to exercise such a limited right to visit the detained applicant, cannot a priori be derived from Article 8 of the Convention, a fortiori as this person only disposes of a ... residence permit rather than a consolidated right to stay, for which reason he cannot convey any rights to residence upon his wife and child. The (enforced) stay due to detention on remand or a prison sentence, based on an order of criminal procedure or penal law, cannot in itself provide a ‘consolidated right to stay’ within the meaning of the case-law to Article 8 of the Convention.” Subsequently, the Federal Aliens’ Office (Bundesamt für Ausländerfragen) ordered the applicants to leave Switzerland by 29 June 2001, whereas A.S. was ordered to leave Switzerland upon release from detention. The applicant’s appeal against this decision was dismissed by the Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartment) on 11 May 2001. According to S. 13 § 1 of the Swiss Federal Constitution, “everyone has the right to respect for his private and family life, his home and his communications by mail, post and telecommunications”. S. 10 § 1 (d) of the Federal Aliens’ Act provides that a foreigner may be expelled from Switzerland, inter alia, “if he, or a person for whom he has to care, continuously and substantially becomes a burden for public welfare”. S. 100 § 1 (b) (3) of the Organisation of Justice Act states that an administrative law appeal shall be inadmissible in matters of the aliens’ police if it concerns the granting or the refusal of authorisations in respect of which federal law offers no entitlement.