Guest post by Sanne Konings, Stafmedewerker Familiaal Internationaal Privaatrecht, Agentschap Integratie en Inburgering.
On 8th of December 2015 the European Court of Human Rights pronounced a judgment in the case of Z.H. and R.H. v. Switzerland. The main question was if the Swiss authorities violated the right to respect of family life under article 8 European Convention of Human Rights of the applicants by not recognizing their religious marriage and removing the second applicant to Italy while the first applicant was allowed to stay in Switzerland.
The applicants are two Afghans cousins who contracted a religious marriage in Iran. At the time of the marriage the first applicant was 14 years old and the second applicant was 18 years old. The applicants applied for asylum in Switzerland. The authorities intended to remove both applicants to Italy, from where they had come. Under Dublin Regulation II, Italy was the State responsible for examining their asylum request. The second applicant appealed, the first applicant did not appeal. As a result, the two cases took their own particular course. In the case of the first applicant, procedural errors prevented her removal to Italy and Switzerland had the duty to examine her asylum request. However, the second applicant’s appeal failed and he was sent to Italy on 4 September 2012 while the first applicant remained in Switzerland. The applicants allege that such forcible separation constituted a violation of the applicants’ right to respect of their family life. In their view, the Swiss authorities had wrongly refused to recognize their married status. The Swiss authorities on the other hand conclude that the applicants could not be regarded as having a joint family life at the time of the separation.
The Court stresses that the present case not only concerns family life but also immigration lato sensu.
The Court recalls that the factual and legal situation of a settled migrant and that of an alien seeking admission are not the same. Therefore the criteria developed in the Court’s case-law for assessing whether the withdrawal of a residence permit of a settled migrant is compatible with Article 8 cannot be transposed automatically to the situation of the applicant. The question in the present case is whether the Swiss authorities were under a duty pursuant to Article 8 to grant the second applicant a residence permit in Switzerland in order to enable him to exercise any family life he might have established on Swiss territory with the first applicant, who was not removed to Italy.
The Court recalls that in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. The Court reiterates that the notion of “family life” in Article 8 is not confined solely to families based on marriage and may encompass other de facto relationships.
In the present case the Swiss authorities decided in 2012 that the applicants’ religious marriage was invalid under Afghan law and in any case was incompatible with Swiss public order due to the first applicant’s young age. The Court agrees with the finding of the Swiss authorities in this respect. Article 8 cannot be interpreted as imposing on any State party to the Convention an obligation to recognize a marriage, religious or otherwise, contracted by a 14 year old child, nor can such obligation be derived from the right to marry as in Article 12 of the Convention.
At the time of the removal of the second applicant to Italy, the national authorities were justified in considering that the applicants were not married. Even more so because at the time the applicants had not yet taken any steps to seek recognition of their religious marriage in Switzerland.
Judge Nicolaou is in agreement with the Court’s decision that there had been no violation of Article 8 of het Convention in the present case. However, he has a different view on the findings of the Court relating to the notion of family life as in Article 8.
The judge explains why he thinks that the relationship between the applicants did constituted “family life” within the meaning of article 8 of the Convention. The Swiss authorities failed, in his view, to discern the real meaning and extent of “family life” as an autonomous Convention concept that is both broad and open-ended. The authorities had the right to refuse to recognize the marriage contracted abroad on grounds of public policy. What is important here is that the non-recognition of the purported marriage could not exhaust the question of whether the applicants did or did not have a family life together.
The Court justly established that Article 8 of the Convention cannot be interpreted as imposing on any State party to the Convention an obligation to recognize a marriage, religious or otherwise, contracted by a 14 year old child.
However, it failed to examine in depth whether the applicants did have a de facto family life together even though the national authorities were justified to recognize the religious marriage. That doesn’t seem to fit with the broad and open-ended concept of “family life” under Article 8 as case-law previously established.
In that regard it is striking that the Court stresses the difference between the situation of a settled migrant and that of an alien seeking admission. It is comprehensible that the criteria for assessing whether the withdrawal of a residence permit of a settled migrant is compatible with Article 8 cannot automatically be transposed to the situation of the applicant. However, it is not entirely clear whether the criteria concerning the existence of a family life itself should be different, according to the Court. As judge Nicolaou pointed out, there was no need in this case to decide whether family life did or did not exist. Yet, the Court decided to open that debate.