August 29, 2023
By Eva Sevrin
Ghadamian v Switzerland is one of the rare cases where the European Court of Human Rights decides that the State is under a positive obligation to regularize an irregularly residing migrant. Even more rare perhaps, is the fact that the Court finds this obligation under the right to private life (Article 8). As such, this judgment gives some insight into what the positive obligation to regularize looks like in light of the private life, showing that the finding of a violation is primarily connected to the very particular and individual circumstances of the applicant.
The case concerns Mr Ghadamian, who was born in Iran in 1940. He came to Switzerland legally when he was 29 years old, and stayed there with a residence permit until 2002. During his residence, he worked as a radiologist, established a family and developed strong social links with Switzerland. Most importantly, he had two sons from his marriage which lasted from 1971 to 1989.
However, his story changed between 1988 and 2004, when he was sentenced cumulatively to five years’ imprisonment for criminal offences such as forgery, threats and property offences, which he alleged were all related to his divorce. One of the sentences was accompanied by an expulsion decision.
When an order to leave the territory was addressed to him in 2000, he did not comply and continued to reside in Switzerland. When the expulsion order became legally binding in 2002, his residence became irregular, which caused him to be sentenced again on multiple occasions to additional months of imprisonment.
In 2008 he requested the revocation of his expulsion order and the granting of a residence permit, but got refused. Additionally, a later request for a residence permit for pensioners was declared inadmissible. Nevertheless, in 2015, he applied again for the same permit. This request got refused as well: the Swiss government noted his criminal offences, his long and continuous irregular residence (which by had lasted more than 14 years) and the plausible indications of a family network in Iran.
His two adult sons are living in Switzerland with their respective families, but no relationship of dependence had been established: even though Mr. Ghadamian was of advanced age, he was in good health and lived independently, both physically and economically. As such, the government argued that there was no obligation to grant him a residence permit under Article 8 of the Convention.
At the time of the ECtHR judgment, Mr Ghadamian was 83 years old and still residing irregularly in Switzerland. He has lived there for 54 years, of which 33 years legally.
The judgment concludes that the refusal to regularize the applicant’s stay in Switzerland breaches his right to private life under article 8 ECHR.
Firstly, the Court states that the applicant cannot rely on his right to family life but rather on his private life, observing that his sons are adults and no additional elements of dependence have been proven.
Following from this, it starts the balancing exercise with the interests of the State. On the one hand, the Court confirms the State’s interest in protecting public order, based on Mr. Ghadamian’s criminal convictions. Despite agreeing with the fact that the applicant has never been accused of any serious offense after 2006, it does take note of his convictions relating to his irregular stay and the conviction for minor theft in 2016. The Court also considers that Mr. Ghadamian has shown bad faith by not complying with the expulsion order and continuing his residence irregularly.
The Court then looks at the expulsion efforts of the Swiss authorities. These consist primarily of the notification of the expulsion order and house searches looking for the applicant’s passport. The Court agrees that there were practical difficulties in forcefully expelling Mr. Ghadamian to Iran, as the government did not have access to his passport. However, the Court still states that it remains “doubtful whether the State took all measures possible” to get access to the applicant’s passport and expel him (§53).
Turning to the interests on the applicant’s side, the Court starts off by emphasizing the “manifestly very long” duration of Mr. Ghadamian’s 54-year long stay (§56). The Court does add that the complete duration of his stay cannot be given the same weight as the years that he has lived with a residence permit. However, seeing that he has established his private life predominantly during his legal stay, these years do carry significant weight. Moreover, he has lived the majority of his life in Switzerland, has integrated into Swiss society, contributed to the “monde du travail” by working as a radiologist and has built his pension rights (§57).
Next to this, the Court looks at the possibility of him enjoying such private life in Iran. The Court states it’s “indisputable” that, even despite his physical and economical independence, a return to Iran would be highly complicated (§59). He would be separated from his children and grand-children and claims to have no surviving siblings there.
These are the main elements that lead the Court to decide that the Swiss Courts attributed too much weight to the general interest and not enough to the specificities of this particular situation. As such, Switzerland overstepped its margin of appreciation. The Court does not see it necessary to discuss whether there is also a violation of Article 13 read together with Article 8.
Finally, no financial compensation is awarded under Article 41. While the Court does not exclude that the applicant sustained non-pecuniary damage, it rules that the mere finding of a violation provides sufficient just satisfaction. It is exactly this point that Judge Serghides criticizes in his partly dissenting opinion. He argues that each case where a violation of a substantive right is found should be accompanied by financial compensation under article 41.
Up to now, the Court has taken different approaches in regularization and expulsion cases of migrants under Article 8. A different set of criteria applies when a ‘settled’ migrant faces expulsion, which is someone who has already formally been granted a right of residence, than when an irregular migrant faces expulsion or is refused to be regularized. The criteria used in the latter can be conceived as more restrictive, as a positive obligation to regularize generally only exists in “exceptional circumstances” if the migrant built his family or private life while the persons involved were aware of the precarious migration status of the applicants (§39 Rodrigues da Silva and Hoogkamer v. the Netherlands).
According to the Court, the Ghadamian’s case is similar to the Jeunesse case, meaning that the criteria that the Court applies are those of an irregularly staying migrant who seeks regularization. These criteria involve, amongst others, the extent of the ties to the host state, the extent to which family life is effectively ruptured, whether there are factors of public order weighing in favour of exclusion and whether family life was created at a time when the persons involved were aware of the precarious immigration status.
These criteria were developed in cases concerning the potential rupture of family life, but the Court applies them to private life cases as well. Sylvia Da Lomba argues that, in the case of settled migrants, the mere copy-pasting of criteria developed in the context of family life to private life cases has led to a failure to develop “assessment criteria that capture the extent of the impact of expulsion on private life”. In the context of regularization under private life, a similar concern could surface. However, Mr. Ghadamian’s case does prove that sometimes, private life considerations can outweigh criminal convictions. Primarily, his relationship with his adult children and grand-children takes the foreground, as Mr. Ghadamian himself also emphasized their primary importance (§30). Next to this, the Court underlines the “manifestly very long duration” of his stay in Switzerland (§56). The Court also pays attention to ‘elements of integration’ or ties with the host country, namely his professional accomplishments, his fourteen-year long current relationship with a Swiss national, close friendships and activities as a volleyball trainer.
This shows that that the Court pays attention to the extent of Mr. Ghadamian’s private life, and what deportation to Iran would mean for the enjoyment of this right. Still, the judgment does not explicitly set out how it applies specific criteria to his case. It seems that the length of the applicant’s stay is rightfully presented as pivotal as it helps to understand what the extent of the interest of the applicant in protecting his private life is. However, the emphasis put on this element is curious as the duration of the migrant’s stay is (formally) not a criterium used in the regularization cases, but rather an official criterium from the settled migrants case law (§71 Maslov). It does make sense to bring duration of stay under “extent of ties to the host state”, but it does also add to the criticism that the use of different sets of criteria exhibits inconsistency and can lead to difficult implementations for domestic courts.
In short, Ghadamian shows again that a sharp distinction between regular migrants and irregular migrants, embodied by the use of different sets of criteria, is not as clear-cut and easily appliable for domestic courts as the ECtHR might want it to be. As such, it seems reasonable to argue in favour of a unified set of criteria for all cases where migrants live under the threat to be uprooted, with special attention to how these should apply to either family or private life (something Klaassen has done here). Otherwise, the case law might remain unpredictable, as what was taken into account and attributed significant weight in Ghadamian might not necessarily be the case for someone in a comparable situation, adding perhaps to what Marie Dembour calls the “lottery-like” effect of Article 8 migrant cases.
Additionally, since Pormes the balancing exercise in regularization cases has become even more nuanced. Pormes introduces a possible subcategory of irregular migrants for whom the “exceptional circumstances” do not apply. Due to the lack of knowledge on the applicant’s part of his precarious migration status, the “exceptional circumstances” threshold was found to be inappropriate and the starting point of the balancing exercise had to be “neutral”, meaning that the balancing exercise does not necessitate exceptional hardship in order to tip in the favour of the applicant (§61 Pormes).
In Ghadamian, the Court cites Pormes and states that Mr. Ghadamian’s situation is similarly particular, as he has built the center of his private life during the thirty-three years he resided legally (§46 Ghadamian). However, the Court does not explicitly state that this means that a “neutral starting point” should be used (§61 Pormes). In contrast, it merely states that a full balancing of interests and analysis of all the facts have to be undertaken.
Klaassen has argued that “a neutral starting point should be adopted in all immigration cases” regardless of migration status. While the Ghadamian case is definitely not making a turn into that direction, it reaffirms the idea that regularization should perhaps not be that exceptional as long as the applicant in question established his private life at a time where he wasn’t aware of his precarious immigration status, or during a time where he still had a legal residence right. Even if the applicant does not have a legal right and knows they don’t, having –a plausible – albeit theoretical – claim to regularization at some point, might already impact the scales in the balance (§43 Rodrigues Da Silva and Hoogkamer). Arguably, in this regard Ghadamian does further solidify the contested importance given by the Court to the immigration status of migrants when balancing their rights under article 8.
Moreover, the reliance on quite extreme specificities of Mr. Ghadamian case – such as his old age, extreme long stay and lack of ties to Iran – might implicate that the exceptional circumstances prerequisite is not even formally necessary, as regularization cases under Article 8 still need a very exceptional applicant. In fact, the result still seems quite similar to Jeunesse: all the aspects of the applicant’s story lead cumulatively to a rather ‘extreme’ case. Thus, it might be fair to say that with Ghadamian, the Court’s regularization case law still shows “a concentration of hardship cases”.
Finally, the fact that the Court does not award any damages to the applicant does not come as a surprise. The Court’s jurisprudence on Article 8 cases concerning migrants seems to be inconsistent and unpredictable in considering whether a violation on its own constitutes sufficient satisfaction (e.g. Azzaqui v the Netherlands or Rodrigues da Silva, but contrast with Jeunesse and Butt v Norway).
Admittedly, the judgment does not show whether the applicant motivated thoroughly the extent of his moral damages (§69, compare with for example Jeunesse §125-127). However, two remarks can be made.
Firstly, the Court itself states that “it doesn’t exclude that the applicant suffered non-pecuniary damage” (§71), however it quickly glosses over this. As this is a regularization case, the Court could at least have looked into the fact that his state of irregularity brought criminal law implications with it, and the applicant was even convicted to prison sentences and fines as a result. If the Court rules that refusing Mr. Ghadamian a residence permit is a violation of the ECHR, then perhaps the criminal convictions based on this unlawful refusal (namely his irregular residence) should both be discussed as a potential cause for non-pecuniary damages and as the type of damages that can impossibly be mediated by a post-factum finding of a violation.
Secondly, there is absolutely no interaction with the type of suffering that a state of irregularity might create. In Jeunesse, the Court accepted the claim for compensation based on “the trauma, anxiety and upset she and her family, in particular the children, suffered for an extended number of years” (§127). Here, no mention is made of the prolonged uncertainty Mr. Ghadamian had to endure.
Judge Serghides’ dissenting opinion on this point remains general and principled: a finding of a violation always presupposes moral damages, and thus always warrants a compensation (see for a more in-depth reasoning his excellent dissenting opinion in Azzaqui). However, the question arises whether this lack of just satisfaction isn’t overrepresented specifically in migrant cases. One might wonder whether there is a difference in treatment when it comes to migrants under Article 41, and whether this difference is justifiable. Systematic research seems necessary on this matter.