European Court of Human Rights
Application No. 60119/12
8 December 2015
European Convention on Human Rights, Article 8: Right to respect for private and family life
European Convention on Human Rights, Article 12: Right to marry
The two applicants – ZH and RH – were Afghan nationals who had married in a religious ceremony in September 2010 in Iran where they were residing illegally. At the time, ZH was 14 years old and RH was 18 years old. Their marriage was not registered.
In September 2011 the applicants applied for asylum in Switzerland. The Swiss authorities refused asylum because the applicants had already been granted asylum in Italy. The refusal also noted that the applicants had failed to provide evidence of marriage and that their alleged marriage could not be validly recognised in Switzerland because it was illegal under the relevant provision of the Afghan Civil Code, which contained an absolute prohibition on marriage for women under 15 years of age, as well as manifestly incompatible with Swiss law, since sexual intercourse with a child under the age of 16 was a crime under the Swiss Criminal Code.
A guardian was appointed to ZH in Switzerland, as she was a minor, and in May 2012 the Swiss authorities decided to reexamine her asylum request. RH also requested for his application to be reexamined in order to preserve the family unity. His application was rejected and he was expelled to Italy in September 2012, but he returned to Switzerland a few days later and made a new asylum application which was also rejected.
The applicants complained to the European Court of Human Rights of the Swiss State’s failure to respect their right to family life under Article 8 of the European Convention on Human Rights (ECHR) in expelling RH to Italy thus forcefully separating the two applicants. Before a decision was rendered, the applicants’ marriage was recognised by a court in Geneva and they were granted asylum in October 2014.
Issue and resolution:
Migration and family status. Whether the Swiss authorities were required to grant RH a residence permit in order to allow the two applicants to exercise their right to family life. The Court decided that there was no violation.
The Court reiterated that “family life” in Article 8 is not confined to families based on marriage and may encompass other default relationships. When deciding whether a relationship can be said to amount to “family life”, several factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other.
Nonetheless, the Court ruled that Article 8 of the Convention cannot be interpreted as imposing on any State party to the Convention an obligation to recognise a marriage, religious or otherwise, contracted by a 14 year old child. Nor can such obligation be derived from Article 12 of the Convention, which expressly provides for regulation of marriage by national law. Given the sensitive moral choices concerned and the importance to be attached to the protection of children and the fostering of secure family environments, the Court must not rush to substitute its own judgment in place of the authorities who are best placed to assess and respond to the needs of society.
At the time of the removal of the second applicant to Italy, the Swiss authorities were justified in considering that the applicants were not married, all the more so, given the fact that the applicants had not taken any steps to seek recognition of their religious marriage in Switzerland. Even if the relationship existing between the applicants in 2012 had qualified as “family life” under Article 8 of the Convention, the Court noted that the second applicant returned to Switzerland only three days after having been removed to Italy, and was not expelled thereafter although his stay in Switzerland was illegal. He was allowed to remain in Switzerland and to request a re-examination of his asylum application, which eventually succeeded. The Court found that a fair balance has been struck between the personal interests of the applicants in remaining together in Switzerland while waiting for the outcome of the first applicant’s asylum application, and, the public order interests of the Swiss government in controlling immigration.
Therefore, no violation of the ECHR was found.
Link to full judgement:
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