ATAYEVA AND BURMAN v. SWEDEN - 17471/11 - Chamber Judgment [2013] ECHR 1073 (31 October 2013)

In the case of Atayeva and Burman v. Sweden,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Ann Power-Forde,
          Ganna Yudkivska,
          André Potocki,
          Paul Lemmens,
          Helena Jäderblom,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 8 October 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 17471/11) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkmen national, Ms Myahri Atayeva, and a Swedish national, Mr Mats Burman, (“the applicants”), on 16 March 2011.

2. The applicants were represented by Mr M. Ericsson, a lawyer practising in Luleå. The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson, of the Ministry for Foreign Affairs.

3. The applicants alleged that it would violate their right to family life under Article 8 of the Convention if the first applicant were expelled to Turkmenistan to apply for family reunification from there.

4. By a decision of 19 February 2013 the Court declared the application partly admissible.

5. The applicants and the Government each filed further written observations (Rule 59 § 1 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1974 and 1954 respectively and live in Luleå.

7. On 25 March 2006, the first applicant arrived in Sweden with her son, A, born in 1999. On 17 April 2006, she married the second applicant. Subsequently, on 7 September 2006, she and A applied to the Migration Board (Migrationsverket) for asylum and residence permits, submitting that she belonged to a family of political opponents in Turkmenistan and was sought by the authorities there. A’s father had died in a car accident in 2005. She further referred to her marriage to the second applicant. To prove her identity, she submitted a work identity card, a birth certificate and the diploma of her degree in medicine.

8. On 27 May 2008, the Migration Board rejected the application. It questioned the first applicant’s credibility because her statements had been vague and inconsistent. In addition, she had not submitted her passport, of which the Board considered she was in possession, and she had not helped the domestic authorities to clarify her route to Sweden. In response to a question to the German Embassy in Ashgabat, the Board had been informed that the first applicant and A had been granted visas to visit Germany from 1 April to 22 April 2006. A’s father had given his approval and, consequently, must have been alive in 2006. As the first applicant had been granted a visa, the Board concluded that she had left Turkmenistan legally. Consequently, it was improbable that she was perceived as a political opponent. As concerned the first applicant’s marriage to the second applicant, the Board questioned the seriousness of the applicants’ marriage since they had married less than a month after the first applicant’s arrival in Sweden and had never met before. Moreover, an application for a residence permit on this ground should, as a rule, be submitted before arrival in Sweden.

9. The first applicant and A appealed against the decision to the Migration Court (Migrationsdomstolen) and added that the visa documents were false. Moreover, their ties to Sweden were stronger than those to their home country since they had no remaining family in Turkmenistan.

10. On 29 April 2009, after having held an oral hearing, the Migration Court upheld the Board’s decision in full. It considered that the documents related to the visas were most probably authentic whereas A’s father’s death certificate, submitted by the first applicant, had low evidentiary value. Turning to whether the first applicant could be granted a residence permit because of her marriage, the court did not find it unreasonable to ask her and A to return to their country, or another country, and apply from there.

11. The first applicant and A appealed to the Migration Court of Appeal (Migrationsöverdomstolen) which, on 16 July 2009, refused leave to appeal.

12. On 28 January 2010, the first applicant gave birth to her and the second applicant’s son, B, and lodged an application for reconsideration of her case on the basis of her family ties. The Migration Board rejected her request as it considered that she could not be granted a residence permit on the basis of her family ties and that there were no impediments to the enforcement of the deportation order. Their appeal to the Migration Court and the Migration Court of Appeal against this decision was unsuccessful.

13. On 24 September 2010, A was adopted by the second applicant and hence became a Swedish citizen. Subsequently the first applicant again applied for reconsideration of her case, relying on her family ties with the second applicant, A and B. This request was also rejected.

14. Subsequently, the first applicant lodged several new requests for reconsideration, without success.

15. In May 2013 the applicants informed the Court that they were expecting another child, due to be born in October 2013.

16. On 17 July 2013 the first applicant submitted a new application for a residence permit in Sweden to the Migration Board.

II. RELEVANT DOMESTIC LAW AND PRACTICE

17. The basic provisions concerning the right of aliens to enter and to remain in Sweden are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716). Pursuant to Chapter 12, section 22, the validity of a deportation or expulsion order, which has not been issued by a general court (that is, not as a consequence of a criminal conviction), expires four years after the date on which it acquired legal force.

18. When a deportation or expulsion order thus becomes statute-barred, the alien may apply anew for asylum and a residence permit. A new application entails a full examination by the Migration Board of the reasons put forward by the alien and if the Board’s decision is negative, appeal lies to the Migration Court and the Migration Court of Appeal in accordance with the rules pertaining to the ordinary proceedings concerning asylum and residence permits. An appeal against a negative decision by the Board has suspensive effect and accordingly the alien may not be expelled while the proceedings are pending.

THE LAW

19. The repondent Government claimed that the application should be struck out since the expulsion order against the first applicant had become statute-barred on 16 July 2013 and she thus no longer faced a risk of being expelled from Sweden. They added that there were also new circumstances in the case which had not previously been examined by the domestic authorities, namely that the first applicant was expecting another child and that she had claimed that her passport would be invalid from 13 July 2013.

20. The applicants objected to the application being struck out and wanted the Court to proceed with the examination of their case. In their view, there was no prospect of success for the first applicant in new proceedings since her applications so far had been refused.

21. The Court reiterates that the applicants alleged that their right to family life, under Article 8 of the Convention, would be violated since the family would be separated if the first applicant were expelled to Turkmenistan to apply for family reunification from there. The order to expel the first applicant acquired legal force on 16 July 2009 when the Migration Court of Appeal refused leave to appeal in the original asylum proceedings. Under Chapter 22, section 12, of the Aliens Act, the validity of that order expired four years later, that is, on 16 July 2013. The deportation order has thus become statute-barred and cannot be enforced (see above § 17).

22. The Court further notes that the first applicant may, in this situation, institute new - and full - proceedings for asylum and a residence permit, in which her claims will be examined on the merits by the Migration Board and - in the event of appeals - by the migration courts. In fact, the Court observes that the first applicant already lodged such a new application for a residence permit with the Migration Board on 17 July 2013. These new proceedings will give the domestic authorities the opportunity to consider the first applicant’s claims in full, including her new claims (her pregnancy and the expiry of her passport), before the Court.

23. Consequently, the Court finds that the applicants are not, at the moment and for a considerable time to come, at risk of being separated. Should the new request for a residence permit by the first applicant be rejected by the domestic authorities and courts, the applicants have the opportunity to lodge a new application before the Court. In these circumstances, it is no longer justified to continue the examination of the present application, having regard to Article 37 § 1 (c) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

24. Accordingly, the case should be struck out of the list.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English, and notified in writing on 31 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

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