36223/97

 AS TO THE ADMISSIBILITY OF Application No. 36223/97 by H. K. and A. K. against Switzerland The European Commission of Human Rights (Second Chamber) sitting in private on 2 July 1997, the following members being present: Mrs. G.H. THUNE, President MM. S. TRECHSEL J.-C. GEUS G. JÖRUNDSSON A. GÖZÜBÜYÜK J.-C. SOYER H. DANELIUS F. MARTINEZ M.A. NOWICKI I. CABRAL BARRETO J. MUCHA D. SVÁBY P. LORENZEN E. BIELIUNAS E.A. ALKEMA A. ARABADJIEV Ms. M.-T. SCHOEPFER, Secretary to the Chamber Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 14 May 1997 by H. K. and A. K. against Switzerland and registered on 26 May 1997 under file No. 36223/97; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The applicants, father and son, are citizens of former Yugoslavia and were born in 1948 and 1979, respectively. The first applicant is a construction labourer, the second applicant an apprentice. Before the Commission the applicants are represented by Mr D. Ehrenzeller, a lawyer practising at Teufen in Switzerland. The facts of the case, as submitted by the applicants, may be summarised as follows. In 1979 the applicant's wife bore twins, both with the name Avni, the second twin being the second applicant. In 1989 the applicants' family consisted of the first applicant, his wife, the three children A., S. and M., and the twins Avni. The first applicant, who had been living in Switzerland since 1977, was joined in 1989 by his family, including the first, but not the second, twin brother Avni. The child A. later died in Switzerland. According to the applicants' submissions before the Commission, upon the family's departure to Switzerland in 1989, the second twin brother Avni, the second applicant, remained with his grandmother with whom he had close relations. The subsequent decision of the Federal Court of 15 November 1996 stated that according to the applicants' submissions the second applicant had been brought to the grandmother shortly after his birth in 1979. In Switzerland, the first twin brother Avni was afflicted by leukaemia. In 1991 it transpired that he was terminally ill, he was therefore brought back to Yugoslavia where he died on 24 April 1991. For unexplained reasons, the Swiss authorities were not immediately informed of the first twin brother's decease. In 1993 the first applicant obtained a renewal of his right to domicile (Niederlassungsbewilligung) which extended to the children A., S. and M., a further daughter Ar., and the twin brother Avni. The surviving second twin brother Avni, the second applicant, had meanwhile terminated his schooling in Yugoslavia. As his grandmother was for health reasons no longer in a position to take care of him, the second applicant travelled to Switzerland in June 1994 with the Alien's identity card (Ausländerausweis) of the deceased first twin brother. Upon his arrival, the second applicant went to the Swiss authorities with the document certifying his father's right to domicile and a photo. The latter was stuck into the document. The second applicant then commenced an apprenticeship. Upon a control by the police in October 1994, the second applicant claimed that he was the twin brother of the deceased Avni and that he was also called Avni. Criminal proceedings were then instituted against the applicants on suspicion of having circumvented regulations of the Aliens' Police (Fremdenpolizei). The proceedings against the second applicant were eventually terminated, whereas the first applicant was fined 400 Swiss Francs (CHF). On 14 December 1994 the Aliens' Police ordered the second applicant to leave Switzerland before 2 January 1995. The first applicant then filed a request to let the second applicant join the family in Switzerland. This request was dismissed by the Aliens' Police on 27 March 1995 and, upon appeal, by the Government of the Canton of St. Gallen (Regierungsrat) on 5 September 1995. The applicants' administrative law appeal (Verwaltungsgerichts- beschwerde) was dismissed by the Federal Court (Bundesgericht) on 15 November 1996, the decision being served on 18 December 1996. In its decision the Federal Court noted that according to S. 4 of the Federal Act on Residence and Domicile of Aliens (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer), the authorities were free to decide whether or not to grant a residence allowance to foreigners. As a result, the foreigner and his relatives had in principle no right to be granted a residence authorisation. Insofar as S. 17 para. 2 of the Federal Act envisaged the right of children under eighteen years of age to join their family in Switzerland, this presupposed links within a cohabiting family. The Court considered that according to the applicants' submissions the second applicant's grandmother had taken care of him shortly after his birth. The second applicant had, therefore, been separated from his original family. Subsequently, the separation had been maintained; thus it transpired from a family document of 1988 that the second applicant was not listed as a family member. The decision continued:

"The second applicant grew up with his grandmother and his great uncle in Yugoslavia. He lived there until he finished compulsory schooling. When questioned by the police on 30 November 1994 he stated that he had hesitated to travel to Switzerland, as he did not want to leave alone in Yugoslavia his grandmother who was seriously ill; thus, he had shown that he was closely attached to his grandmother/mother. Immediately after his entry in Switzerland the second applicant commenced training as a construction apprentice with the H. company in D. Thus, it cannot be dismissed out of hand that his residence in Switzerland also - or even mainly - served the purpose of education and employment." In respect of Article 8 of the Convention the decision stated:

"The first applicant has been living as a seasonal worker in Switzerland since 1977. Since 1989 his wife and children have been living here. The second applicant remained with his foster parents in former Yugoslavia. According to his own submissions the first applicant had "given (his second son Avni) as a present" to a rich uncle who had married his widowed mother. The second applicant's contacts with his parents during his youth were limited to occasional visits and presents ... Thus, the second applicant lived separated from the original family until he travelled to Switzerland when he was fifteen years old. Accordingly, a juvenile person, who has spent his whole childhood and his youth as a member of another family, cannot at present maintain an overriding private interest in joining his family. Even if he continues to live in Yugoslavia, it will be possible to continue the mutual contacts and to maintain the relationship between the second applicant and his original family. An application for a tourist visa can be filed for visits in Switzerland." COMPLAINTS The applicants complain under Article 8 of the Convention of the Swiss authorities' refusal to let the second applicant join the first applicant. This should be permitted until the second applicant is 18 years of age. The Swiss authorities no longer doubt that the second applicant is a twin and descends from the first applicant. The second applicant moved, when he was 10, to his grandmother who did not want to stay alone. After he finished his schooling the question arose as to whether he should join his family in Switzerland. It transpired that the grandmother would, for health reasons, no longer be able to provide family related security to the second applicant, and that the child A. would soon die. Thus, the first applicant decided to bring the second applicant to Switzerland. As the first applicant can neither read nor write, it should be accepted that he thought that the second applicant was included in his application for a prolongation of his right to domicile. The applicants point out that the Swiss authorities who are interested in reducing the number of foreigners in Switzerland should not benefit from the fact that two children of the first applicant have died. THE LAW The applicants complain that the second applicant is not allowed to join his father, the first applicant, in Switzerland. They rely on Article 8 (Art. 8) of the Convention which states, insofar as relevant: "1. Everyone has the right to respect for his ... family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The Commission recalls that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. Nevertheless, the expulsion of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life guaranteed in Article 8 para. 1 (Art. 8-1) of the Convention (see Eur. Court HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, p. 18, para. 36). The Commission has therefore examined whether in the present case the refusal of the Swiss authorities to grant the second applicant the right to join his father, the first applicant, in Switzerland, will separate him from close members of his family and thus infringe his right to respect for family life within the meaning of Article 8 (Art. 8) of the Convention. In examining such cases the Commission must consider whether a sufficient link exists between the relatives concerned as to give rise to the protection of "family life" within the meaning of Article 8 (Art. 8) of the Convention. Generally, this involves married couples, on the one hand, and, on the other, cohabiting dependents such as parents, spouses and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case (see Eur. Court HR, Boughanemi v. France judgment of 24 April 1996, Reports of Judgments and Decisions 1996 II, p. 608, para. 35; No. 10375/83, Dec. 10.12.84, D.R. 40, p. 196). The Commission has examined the second applicant's links with the family of his father, the first applicant, on the one hand, and with his foster family in Yugoslavia, on the other. It is true that before the Commission the applicants have explained that the second applicant moved to his grandmother in 1989. Nevertheless, it transpires from the decision of the Federal Court of 15 November 1996, which is the final decision in the present case, that before the Swiss authorities the applicants claimed that the second applicant had been brought to his grandmother shortly after his birth. A confirmation herefor can be found in a family document of 1988 in which the second applicant was not listed as a family member. In the Commission's opinion, therefore, the second applicant has been separated from his original family since his early childhood, and the separation was subsequently maintained until 1994. Indeed, the applicants have not referred to any circumstances which would indicate particularly close links of the second applicant with the family residing in Switzerland. On the other hand, the second applicant has consistently maintained close ties with his foster family. The Commission also notes the assurances of the Swiss authorities, in particular of the Federal Court in its decision of 15 November 1996, according to which the second applicant may continue the mutual contacts with his original family, and may at any time file an application for a tourist visa for a visit in Switzerland. As a result, the applicants have not sufficiently made out an interference with their rights under Article 8 para. 1 (Art. 8-1) of the Convention. In any event, even assuming that the applicants had sufficiently made out an interference with the exercise of their rights under Article 8 para. 1 (Art. 8-1) of the Convention, the interference would be justified under Article 8 para. 2 (Art. 8-2) of the Convention. The Commission notes that the Swiss authorities, in particular the Federal Court in its decision of 15 November 1996, relied on the Federal Act on Residence and Domicile of Aliens. According to S. 4 of the Act, the authorities are free to decide whether or not to grant a residence allowance to foreigners. Insofar as S. 17 para. 2 of the Act envisages the right of children under eighteen years of age to join their family in Switzerland, this presupposes links within a cohabiting family. The interference is, therefore, "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. Moreover, when refusing to grant the second applicant the right to join the first applicant, the Federal Court did not exclude that the second applicant's residence in Switzerland served the purpose, inter alia, of employment. The interference was therefore imposed "in the interests of ... the economic well-being of the country" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. Finally, the Commission has examined whether the measure was "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention, as interpreted in the Convention organs' case-law (see Eur. Court HR, Berrehab v. Netherlands judgment of 21 June 1988, Series A no. 138, p. 15, para. 27). The Commission notes that the applicants wish to let the second applicant join the family in Switzerland since he is not yet eighteen years of age. They submit that the Swiss authorities, who are interested in reducing the number of foreigners in Switzerland, should not benefit from the fact that two of the first applicant's children have died. In the Commission's opinion, however, the applicants have not demonstrated that they cannot lead their private and family life elsewhere, in particular in Yugoslavia. Taking into account the margin of appreciation which is left to Contracting States in such circumstances (see Eur. Court HR, Berrehab judgment, loc. cit., p. 15, para. 28), the Commission considers that any interference with the applicant's right to respect for his private and family life would be justified under Article 8 para. 2 (Art. 8-2) of the Convention in that it could reasonably be considered "necessary in a democratic society in the interests of ... the economic well-being of the country" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. The application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION INADMISSIBLE. M.-T. SCHOEPFER G.H. THUNE Secretary President to the Second Chamber of the Second Chamber