CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         AS TO THE ADMISSIBILITY OF                           Application No. 33758/96                       by Hanna ESHAK                       against Sweden          The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs. G.H. THUNE, President            MM.   J.-C. GEUS                 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 17 September 1996 by Hanna Eshak against Sweden and registered on 13 November 1996 under file No. 33758/96;        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 applicant is a Syrian citizen born in 1967.   Before the Commission he is represented by his lawyer, Mr Michel Barmoro, Södertälje.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 10 July 1994 the applicant married M.M., a Swedish citizen resident in Sweden.   Their daughter, S, was born on 9 April 1995.   On 10 April 1995 the applicant was granted a temporary permit to reside in Sweden until 10 October 1995 on account of his family ties.   He arrived in Sweden on 20 April 1995 and settled with his wife and daughter.        On 20 May 1995 the applicant and M.M. separated, following which M.M. did not allow the applicant to see S.        By a provisional decision of 7 September 1995, the District Court (tingsrätten) of Motala granted M.M. custody of S and ordered the social authorities to investigate the question of access.        On 15 December 1995 the National Immigration Board (Statens invandrarverk) rejected the applicant's request, lodged in August 1995, for an extension of his residence permit.   The Board considered that he no longer had family ties which could constitute a reason for allowing him to reside in Sweden.   The Board accordingly ordered his expulsion and further issued a prohibition on return valid for two years.        The applicant and M.M. were divorced on 7 February 1996.        After the social authorities had presented their report on the access question in April 1996, the District Court, by judgment of 31 May 1996, awarded the applicant access to S every Monday as from 10 June 1996 between 10 and 12 a.m. in the presence of a so-called contact person (kontaktperson) appointed by the social authorities. Custody remained with M.M.   The court noted that it had not yet been decided whether the applicant would be allowed to remain in Sweden and recalled that he or M.M. could request that access be regulated in a different manner when that decision had been taken.   No appeal was made against the judgment.        Following the social authorities' appointment of a contact person, the applicant met S on two or three occasions in August and September 1996, starting on 12 August.   Thereafter, M.M. allegedly refused to cooperate and, as a result, no further meetings took place.        On 9 September 1996 the Aliens Appeals Board (Utlänningsnämnden) upheld the Immigration Board's decision save for the prohibition on return, which was revoked due to the circumstances of the case.   The Appeals Board considered that the applicant's relationship with his daughter, whom he had not seen between 20 May 1995 and 12 August 1996, did not constitute a sufficient ground for granting him a residence permit.      On 15 November 1996 the applicant, using a false Swedish passport, left Sweden for the United Kingdom with the intention of travelling further to Canada from where he planned to apply for a permit to reside in Sweden.   However, he was returned to Sweden by the United Kingdom authorities.        Upon arrival in Sweden, the applicant lodged a new application for a residence permit.   On 18 November 1996 the National Immigration Board stayed the enforcement of the expulsion order.   It referred the new application to the Aliens Appeals Board.        Before the Aliens Appeals Board, the applicant stated that he had been living with a woman, K.Z., in Sweden since May 1996 and that they had married on 27 April 1997.   He further referred to his daughter and stated that he intended to apply to the courts for regular access to her.   He considered that the award of such access depended on his being granted a residence permit.   He further claimed that the expulsion order, in practice, prevented him from seeing his daughter.        On 6 May 1997 the Aliens Appeals Board rejected the new application, finding that the applicant's relationships with his daughter and his new wife were not sufficient reasons for granting him a residence permit.   Before taking its decision, the Board had investigated the relationship between the applicant and his daughter and had found that they had only met on a few occasions for a short period of time.   The meetings had not worked out well.   According to a certificate issued by a chief physician, it would be very unfortunate for the daughter if the applicant was given a right of access to her, as there was a risk of her sustaining permanent mental injury.   Given the opportunity to comment on the Board's investigation, the applicant had said that, at the last meeting between him and his daughter, she had been crying as her mother had not been present.   However, the applicant had further stated that the chief physician was M.M.'s cousin and that his statements appeared to be highly exaggerated.        The applicant is presently in hiding in Sweden.   He claims that he cannot meet his daughter as he risks being expelled.     COMPLAINTS   1.    Under Article 8 of the Convention, the applicant claims that his expulsion would fail to respect his family life, as he would be separated from his daughter.   2.    Without invoking any further Articles, the applicant also contends that he does not have recourse to any effective remedies.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 17 September 1996.   The applicant requested the Commission to petition the respondent Government to stay his expulsion.        On 23 September 1996 the President of the Commission decided not to indicate to the Government, pursuant to Rule 36 of the Commission's Rules of Procedure, the measure suggested by the applicant.      Following further correspondence with the applicant, the application was registered on 13 November 1996.     THE LAW   1.    The applicant claims that his expulsion would fail to respect his family life, as he would be separated from his daughter.   He maintains that he has shown a strong desire to see his daughter but that their meetings have been obstructed by M.M.   He contends that he does not have sufficient means to travel to Sweden to see the daughter. Further, M.M.'s attempts at obstructing his access to the daughter could, in practice, prevent his obtaining an entry visa for Sweden. The applicant invokes Article 8 (Art. 8) of the Convention which provides the following:        "1.   Everyone has the right to respect for his private and family      life, his home and his correspondence.        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. However, the expulsion of a person from a country in which close members of his family live may amount to an unjustified interference with his right to respect for his family life as guaranteed by Article 8 (Art. 8) of the Convention (cf., e.g., Eur. Court HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, pp. 19-20, paras. 43-46).        Noting that the applicant lived with his daughter for one month before he and M.M. separated in May 1995 and that he met the daughter on a few occasions in August and September 1996, the Commission considers that the applicant's expulsion could be considered as an interference with his right to respect for his family life under Article 8 para. 1 (Art. 8-1).   It is therefore necessary to ascertain whether the expulsion would satisfy the conditions of Article 8 para. 2 (Art. 8-2).        It has not been contested that the expulsion order was issued "in accordance with the law".   The Commission considers that the enforcement of the order would pursue a legitimate aim under Article 8 para. 2 (Art. 8-2), namely the protection of the economic well-being of the country.        As regards the question whether the intended expulsion is "necessary in a democratic society", the Commission recalls that the Aliens Appeals Board investigated the relationship between the applicant and his daughter.   The applicant did not see his daughter for more than a year before a few meetings took place in August and September 1996.   It appears that these meetings did not work out well. Thereafter, the applicant has not met his daughter.   Thus, notwithstanding the alleged attempts by M.M. to obstruct the applicant's access to his daughter, the Commission considers that the   ties between the applicant and the daughter are rather tenuous. Apparently, the few meetings that have taken place have been upsetting for the daughter.        In view of the above and taking into account the margin of appreciation left to the Contracting States, the Commission concludes that the Swedish authorities have not failed to fulfil their obligation to strike a fair balance between the relevant interests.   Thus, the interference with the applicant's right to respect for his family life is justified under Article 8 para. 2 (Art. 8-2) of the Convention in that it can reasonably be considered necessary in the interests of the economic well-being of the country.        It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant also contends that he does not have recourse to any effective remedies.   The Commission considers that this complaint falls to be considered under Article 13 (Art. 13) of the Convention which reads as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy      before a national authority notwithstanding that the      violation has been committed by persons acting in an      official capacity."        Having regard to its findings under Article 8 (Art. 8) of the Convention, the Commission considers that the applicant does not have an "arguable claim" of a violation of the Convention.   In any event, the applicant's family ties were considered by the Swedish authorities in connection with the expulsion proceedings.   The applicant thus did have an effective remedy before a national authority in relation to his complaint under Article 8 (Art. 8).   Article 13 (Art. 13) cannot be understood as guaranteeing a successful outcome of the remedy in question.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.         M.-T. SCHOEPFER                            G.H. THUNE          Secretary                                President    to the Second Chamber                    of the Second Chamber