M.P.E.V. and others v. Switzerland
European Court of Human Rights
8 July 2014
Article 3: Best interests of the child
Article 8, European Convention on Human Rights
The case was brought by a family of four who complained to the Court of an alleged violation of the right to respect for family life under Article 8 of the European Convention on Human Rights. All applicants were nationals of Ecuador residing in Geneva. They sought asylum in Switzerland claiming that the first two applicants – the mother and father of the last two applicants – had been tortured and had received death threats from the Ecuadorian police. Their asylum application was rejected in 2002. Since then, the first applicant was convicted in Switzerland in relation to several criminal offences, including selling and buying stolen goods, driving without a licence and attempted theft. In 2007, the applicants won an appeal against the refusal of their asylum application as the Federal Administrative Court found that medical certificates showing that the first applicant suffered from post-traumatic stress disorder might be a reason for granting refugee status to the applicants and ordered that the applicants’ request for asylum be reviewed. The first two applicants separated in 2009, although they remained legally married, and the fourth applicant – their daughter who was 13 years old at the time – stayed with the second applicant, while the first applicant was granted access. The third applicant had reached the age of majority and was granted Swiss citizenship. In 2012, the asylum application of the first two and fourth applicants were rejected again. They appealed to the Federal Administrative Court, which held that the second and fourth applicant should be granted temporary residence, but ordered the expulsion on the first applicant. The court reasoning was that since the parents had separated, the family unit had ceased to exist and Article 8 of the Convention no longer applied. The applicants complained against this court decision to the European Court on Human Rights alleging that the deportation of the first applicant would violate the right to family life under article 8, which is still applicable to their situation, because it would permanently separate the first applicant from his family and deprive him of the nurturing relationship with them, on which he depended for his psychological stability. Furthermore, it would deprive the fourth applicant of her father.
Issue and resolution:
Family separation and best interests of the child. The Court held that the expulsion of the first applicant is contrary to the right to family life. The relationship falls within the protection of Article 8 and the best interests of the child must be a primary consideration in all actions taken by public authorities concerning children.
The Court said that the existence of family life for the purposes of the Convention is a matter of fact depending the real existence in practice of close personal ties. When a child is born in a marital union, from the moment of the child’s birth and by the very fact of it, the bond between the child and his or her parents amounts to “family life” until the child reaches adulthood and that bond cannot be broken by subsequent events, save in exceptional circumstances. Therefore, the relationship between the first, second and fourth applicants falls within the definition of “family life” under the Convention.
The Court considered the length of time the first applicant had resided in Switzerland, the seriousness of his criminal offences, as well as his relationship with his child. He raised her with the second applicant and continued to involve himself in the child’s upbringing following their separation, as is reflected in the extensive access rights accorded to him. However, if the first applicant were forced to return to Ecuador, personal contact between him and his daughter would be, at the least, drastically diminished. The Court then emphasised that, when considering the case of the first applicant, the Swiss Federal Administrative Court failed to make a reference to the best interests of the child as it had wrongly ruled that the relationship did not fall under the protection of “family life”. Having regard to the moderate nature of the criminal offences committed by the applicant, his poor state of health and, in particular, the domestic authorities’ failure to give consideration to the first and fourth applicants’ mutual interest in remaining in close personal contact, the Court held unanimously that there would be a violation of Article 8 of the Convention in the case of the first applicant’s expulsion.
Excerpts citing CRC and other relevant human rights instruments:
51. Moreover, when families with children are involved, the best interests of the child shall be a primary consideration for the public authorities in the assessment of the proportionality for the purposes of the Convention (Nunez v. Norway, no. 55597/09, § 84, 28 June 2011; Kanagaratnam v. Belgium, no. 15297/09, § 67, 13 December 2011; Popov v. France, nos. 39472/07 and 39474/07, § 109, 19 January 2012).
57. With regard to the first applicant’s relationship with his young daughter, the fourth applicant, the Court observes that he raised her with the second applicant and continued to involve himself in the child’s upbringing following their separation, as is reflected in the extensive access rights accorded to him. The Court further observes that the Federal Administrative Court considered that, given her integration into Swiss society, lack of knowledge about her country of origin, where she never returned after having entered Switzerland at the age of two, and the fact that she hardly spoke Spanish, it would amount to an “uprooting of excessive rigidity” to send her back to Ecuador (see paragraph 17 above). Under these circumstances, it can be expected that personal contact between the two applicants would, at the least, be drastically diminished if the first applicant were forced to return to Ecuador. The Court puts emphasis on the fact that the Federal Administrative Court, when considering the first applicant’s case, did not make any reference to the child’s best interests, because it did not consider that the relationship between them fell under the protection of “family life” within the meaning of Article 8 of the Convention. Under these circumstances, the Court is not convinced that sufficient weight was attached to the child’s best interests. Reference is made in this context also to Article 3 of the UN Convention on the Rights of the Child, in accordance with which the best interests of the child shall be a primary consideration in all actions taken by public authorities concerning children (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010, and Nunez, cited above, § 84).
CRIN believes this decision is consistent with the CRC. The best interests principle must be applied in all actions concerning children, including the determination of immigration status of a parent.
M.P.E.V. and others v. Switzerland, Application No. 3919/13
Link to Full Judgment:
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