5-year separation of unsuccessful asylum-seeker couple, pending their deportation, contrary to the convention

Press release issued by the Registrar Chamber judgments - Thursday 29th July 2010

Not final

Mengesha Kimfe v. Switzerland (Application no. 24404/05)    and   Agraw v. Switzerland (Application no. 3295/06)

Full judgements in French only
http://tinyurl.com/23rfmdx and http://tinyurl.com/25x8sof

Unanimously
Violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights - in both cases -

Principal facts
The applicants, Mrs Agraw and Mrs Mengesha Kimfe, are two Ethiopian nationals living in Switzerland, who were born in 1972 and 1974 respectively.

Both cases concern the refusal by the Swiss authorities to assign the applicants to the same Canton as their husbands, so that the couples could live together. Mrs Agraw and Mrs Mengesha Kimfe' husbands, also Ethiopian nationals, had had their asylum applications rejected, following which they were placed in a reception centre, in a different Canton from that of the applicants.

The applicants and their husbands had entered Switzerland illegally on different dates between 1994 and 1998 and sought asylum there. In accordance with the Federal Asylum Act, which provides for asylum-seekers to be assigned to a particular canton, the Federal Office for Refugees ("the Office") assigned Mrs Agraw to the Canton of Berne, Mrs Mengesha Kimfe to the Canton of St Gall and their husbands to the Canton of Vaud.

After their applications for asylum had all been refused, they were ordered to be sent back to Ethiopia and placed in reception centres for refugees pending their deportation. They remained in Switzerland, however, because the Ethiopian authorities prevented their return. Instructions from the Office, attached by Mrs Mengesha Kimfe to her application, showed that since 1993 the Ethiopian authorities had been obstructing the repatriation of unsuccessful asylum seekers of Ethiopian origin, and that the Office had even temporarily stayed enforcement of deportation orders in 1997.

The applicants got married in 2002 and 2003 respectively, in Lausanne (Canton of Vaud). The authorities refused their requests to be assigned to that Canton on the ground that "unsuccessful asylum seekers in respect of whom the departure date initially fixed for leaving Switzerland had elapsed [could] not be assigned to a different Canton". In the decision concerning Mrs Agraw the Swiss authorities observed that the couple could voluntarily return to Ethiopia at any time and that they had known, when they married, that they could not live together in Switzerland.

After her marriage, Mrs Mengesha Kimfe mainly lived with her husband, illegally, in Lausanne. After being summoned to Lausanne police station in December 2003, she was immediately taken back to St Gall, handcuffed. Her application for family reunion was initially refused and subsequently granted in 2008, when she was issued with a residence permit in the Canton of Vaud on that ground.
In 2005 Mrs Agraw gave birth to a child, who lived with her in the Canton of Berne, separated from his father. Her application for a residence permit for the Canton of Vaud was eventually granted by the Office in 2008 on the grounds of her right to family unity.

Complaints, procedure and composition of the Court
Relying on Article 8, the applicants complained that they had been unable to live with their husbands - despite the close and effective ties between them - on account of the Swiss authorities' refusal to assign them to the same Canton as their husbands.

The applications were lodged with the European Court of Human Rights on 29 June 2005 (no. 24404/05) and 9 January 2006 (no. 3295/06) respectively.

Judgments were given by a Chamber of seven judges, composed as follows:
Christos Rozakis (Greece), President,
Nina Vaji_ (Croatia),
Anatoly Kovler (Russia),
Elisabeth Steiner (Austria),
Khanlar Hajiyev (Azerbaijan),
Giorgio Malinverni (Switzerland),
George Nicolaou (Cyprus), Judges, and also Søren Nielsen, Section Registrar.

Decision of the Court
States did not have a general obligation to comply with the choice of joint residence elected by married couples or to allow foreign couples to settle in the country. However, for the purposes of Article 1 of the European Convention on Human Rights, the applicants, whose involuntary prolonged stay in Switzerland had been due to the failure to enforce the order deporting them to Ethiopia, came within the "jurisdiction" of Switzerland, which was accordingly obliged to assume its responsibility under the Convention.

The applicants had not complained of the decision ordering their deportation from Switzerland, but of having been prevented from cohabiting with their husbands following the refusal to assign them to the Canton where the latter lived. The Court observed that the possibility of leading a life as a couple was one of the essential elements of the right to respect for family life. It noted that the interference by the Swiss authorities with the exercise of this right was prescribed by the Federal Asylum Act, whose purpose, as undisputed by both parties, was to assign asylum seekers equitably between the Cantons and prevent unsuccessful applicants from changing Canton.

The applicants had been officially prevented from living together for approximately five years. While Mrs Mengesha Kimfe had lived with her husband in Lausanne most of the time, she had nonetheless been liable to a criminal penalty for illegal residence whenever she visited him. Moreover, her decision not to stay in the Canton of St Gall had had significant practical consequences, such as the suspension of welfare benefits and the restriction on reimbursements of medical expenses to those incurred in the Canton of St Gall. With regard to Mrs Agraw, even if the one-and-a-half hour train journey that separated her from her husband had allowed them to have regular contact, as was evidenced by the birth of their child, their prolonged separation had amounted to a serious restriction on their family life.

The Court acknowledged that the Swiss authorities did, to an extent, have an interest in not changing the status of unsuccessful asylum seekers. However, it pointed out that the applicants had been prevented from constructing a family life outside Swiss territory because it had been impossible to enforce the deportation order against them because of the Ethiopian authorities' systematic opposition to the repatriation of their citizens.

Even if the equitable assignment of asylum seekers between the Cantons could be deemed to fall within the concept of "economic well-being of the country" and public policy, assigning the applicants to the Canton of Vaud would have been of little consequence in that respect. In any event, their private interests carried much more weight than the advantages of the system for the State, even having regard to the administrative burden and the costs incurred in assigning them to a different canton.

Having regard to the exceptional nature of these cases and to the considerable number of years during which the applicants had been officially separated from their husbands, the Court considered that the measure in question had not been necessary, in a democratic society, and held that there had been a violation of Article 8.

Under the head of just satisfaction (Article 41), the Court held that Switzerland had to pay Mrs Mengesha Kimfe 846 euros (EUR) for pecuniary damage and EUR 5,000 for non-pecuniary damage, and Mrs Agraw EUR 2,330 for pecuniary damage, EUR 5,000 for non-pecuniary damage and EUR 526 for costs and expenses.