CEDH · CASELAW;CLIN;ENG — 11 juin 2013

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Information Note on the Court’s case-law No. 164 June 2013 Hasanbasic v. Switzerland - 52166/09 Judgment 11.6.2013 [Section II] Article 8 Expulsion Refusal to renew residence visa because of applicant’s debts and dependence on public funds: violation   Facts – The applicants are a couple from Bosnia and Herzegovina. The wife had lived in Switzerland since 1969 and the husband since 1986. They had two children together. In 2004 Mr   Hasanbasic told the immigration authorities that he was leaving Switzerland for good to return to his home country, where he had had a house built. His settlement permit was accordingly cancelled. He returned to Switzerland four months later, with a tourist visa, and lived with his wife. Mrs   Hasanbasic submitted an application for him to be allowed to stay in the country under the family reunion programme, but her request was rejected, inter alia because the family was dependent on welfare and had accumulated debts to the tune of some EUR 133,300, and Mr   Hasanbasic had been convicted of nine criminal offences between 1995 and 2002. Law – Article 8: The interference with the applicants’ private and family life was in accordance with the law and pursued the legitimate aims of the country’s economic well-being, the prevention of disorder or crime and the protection of the rights and freedoms of others. The fundamental principles applicable to the expulsion of a person for committing a criminal offence, when that person had spent a considerable length of time in the country, were well-established in the Court’s case-law and had recently been brought to the fore, for example in the Üner , Maslov and Emre cases*. The present case differed from these other cases in so far as the applicants’ complaint about the Swiss authorities’ refusal to renew the settlement permit relied firstly on the family’s strong roots in Swiss society, considering that they had lived there for so long. The husband’s criminal record seemed only to have played a secondary role in the domestic authorities’ decision. In any event, the above-mentioned principles had to be applied, mutatis mutandis , in such a situation. At the time of the Federal Court’s decision in 2009 the applicants had been living in Switzerland without interruption for forty and twenty-three years respectively, except for the four months in 2004. Furthermore, since 1979 Mrs   Hasanbasic had held a permit of a more permanent type than a simple residence permit. For many years, therefore, Switzerland had been the centre of the applicants’ private and family life. The husband had been convicted several times between 1995 and 2002, and sentenced to fines not exceeding 400   Swiss francs (CHF) and to a total of seventeen days’ imprisonment, for road-traffic offences and trespassing. These were not serious offences and had to be placed in perspective. In addition, the applicant had committed no other offences since 2002. He could therefore not be considered a danger or a threat to security or public order. What seemed to have played a major role in the authorities’ assessment of the interests in issue were the sizable debts the family had accrued and the considerable amount of money they had received in welfare benefits (a total of about CHF   333,000, or EUR   277,500). The economic well-being of the country was expressly provided for in the Convention as a legitimate aim justifying interference with the right to respect for private and family life. The Swiss authorities were therefore justified in taking into account the applicants’ debts and their dependence on the welfare system in so far as that dependence affected the country’s economic well-being. However, this was only one factor among many to be taken into consideration by the Court. It was true that, considering the children’s ages, as the applicants had not shown that there were any further elements of dependency between them and their children, involving more than the normal emotional bonds, they could not rely on family ties under Article   8. Family ties were not completely devoid of relevance, however, when analysing the applicants’ family situation. The fact that the husband was able to visit Switzerland from time to time, with the proper authorisation, could by no means be considered to replace the applicants’ right to live together. The applicants had a large social network in Switzerland and, considering how long they had lived there, to have to return to their country of origin would doubtless have placed them in some difficulty. It was true that they had had a house built back in their country of origin, and that one of the children from Mr   Hasanbasic’s former marriage, and his sister, were living there. And in August 2004 the applicant had told the Swiss authorities that he was returning permanently to Bosnia and Herzegovina, which was one of the domestic authorities’ main reasons for refusing to renew his residence permit. That argument had to be assessed in the light of subsequent developments, however. Furthermore, Mr   Hasanbasic’s health had declined seriously, leaving him in need of constant treatment. The possibility that removing him from his familiar surroundings in Switzerland might adversely affect his already declining health and cause new medical complications could not be ruled out. Consequently, although the applicant’s state of health was not sufficient in itself to compel the Swiss authorities to renew his residence permit, it could not be completely ignored in the general balance of interests in issue. Lastly, the fact that the applicant would not receive an invalidity pension if he returned to his country of origin might adversely affect his situation. So, while the economic well-being of the country could indeed be a legitimate reason for refusing to renew a residence permit, that reason should be placed in perspective in the light of all the circumstances of the case. In this instance, regard being had in particular to the considerable length of time the applicants had spent in Switzerland and their undeniable social integration there, the measure in issue had not been justified by a pressing social need and was not proportionate to the legitimate aims pursued. The respondent State had therefore overstepped its margin of appreciation. Conclusion : violation (unanimously). Article 41: no claim made in respect of damage. * Üner v. the Netherlands [GC], 46410/99 , 18   October 2006, Information Note   90; Maslov v.   Austria [GC], 1638/03 , 23   June 2008, Information Note   109; Emre v.   Switzerland , 42034/04 , 22   May 2008.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes