L.A. v. SWEDEN



AS TO THE ADMISSIBILITY OF

Application No. 23253/94

by L. A.

against Sweden

The European Commission of Human Rights sitting in private on

10 March 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C. KRÜGER, Secretary to the Commission

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 October 1993 by

L.A. against Sweden and registered on 14 January 1994 under file No.

23253/94;

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 Swedish citizen, born in 1960. She is a

children's nurse resident in Uppsala.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

As from February 1980 the applicant has had a relationship with A.,

a stateless Palestinian presently resident in Syria.

On 6 March 1980 the National Immigration Board (statens

invandrarverk) ordered A.'s expulsion from Sweden. The order was upheld

by the Government on 18 September 1980.

On 4 July 1981 the applicant and A. married.

On 2 September 1981 the expulsion order was enforced by the

sending of A. to Syria.

Subsequently A. lodged a request for a residence permit in Sweden.

In an opinion of 27 May 1982 the National Police Board considered

A.'s presence in Sweden inappropriate from the point of view of security.

On 2 November 1982 the National Immigration Board rejected the

applicant's husband's request for a residence permit, having regard to

the opinion of the National Police Board.

In 1986 a daughter was born to the applicant and her husband.

On 15 December 1988 the applicant's husband entered Sweden

illegally. He left Sweden on 9 June 1989 for Denmark, from where he was

returned to Sweden.

On 5 July 1989 A. lodged a further request for a residence permit

in Sweden, referring to his family ties. On 22 February 1990 the

Government rejected the applicant's request for a residence permit and

ordered him to be expelled. The Government had regard to opinions

submitted by the National Police Board, the most recent one being dated

1 August 1989, and considered, in the light of those opinions, that the

reasons invoked by A. in support of his request were not sufficient for

the granting of a residence permit. The applicant was furthermore

prohibited from returning to Sweden before 1 March 1995.

On 2 May, 26 June, 21 September and 11 October 1990 the National

Immigration Board rejected A.'s further requests for a residence permit.

The Board found no particular humanitarian reasons for granting a

residence permit.

On 20 September 1990 the Government dismissed the applicant's

request for a revocation of the expulsion order of 22 February 1990

regarding A. The expulsion order was enforced on 25 October 1990.

On 5 February 1992 the National Immigration Board referred A.'s

further request for a residence permit to the Government. On 17 June 1993

the Government rejected the request, having regard to a further opinion

of 16 April 1993 by the National Police Board, in which the views as

stated in the opinion of 27 May 1982 were maintained.

The applicant appears to have visited her husband in Syria during

the following periods:

16 November 1981 - 16 April 1982

29 January 1984 - 6 October 1986

10 July 1987 - 11 November 1987

10 June 1991 - 9 September 1991

28 June 1992 - 4 September 1992

4 July 1993- 30 August 1993

Since 1987 she has been accompanied by her daughter on these

visits.

A. has six siblings in Sweden, who have all been granted Swedish

citizenship.

COMPLAINTS

1 The applicant complains of the refusal to allow A. to join his

family in Sweden. She refutes the suspicions that her husband constitutes

a security risk in Sweden. In any case, the incidents on which the

suspicions are founded took place over ten tears ago and should no longer

be taken into account. She further alleges that the Syrian authorities

have repeatedly refused to grant her and her child a residence permit

enabling her to join A. in Syria. She invokes Article 5 of Protocol No.

7.

2 The applicant further complains that A. has not been able to defend

himself against the suspicions of terrorism and that his treatment by the

Swedish authorities is due to the fact that he is a Palestinian. She

invokes Article 14 of the Convention in conjunction with Article 6 para.

2 and Article 3 of Protocol No. 4.

THE LAW

1 The applicant complains of the refusal to allow A. to join the

family in Sweden and invokes Article 5 of Protocol No. 7 (P7-5), which

guarantees equality between spouses. However, the Commission does not

consider that this provision is of relevance to the applicant's

complaint.

The Commission finds that the complaint falls to be examined under

Article 8 (Art. 8) of the Convention, which reads as follows:

"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 considers that the refusal to grant A. a residence

permit in Sweden raises the question whether there has been a lack of

respect for the applicant's family life. It recalls that the notion of

"respect" enshrined in Article 8 (Art. 8) is not clear-cut. This is the

case especially where the positive obligations implicit in that concept

are concerned. Its requirements will vary considerably from case to case

according to the practices followed and the situations obtaining in the

Contracting States. In determining whether or not such an obligation

exists, regard must be had to the fair balance that has to be struck

between the general interest and the interests of the individual, as well

as to the margin of appreciation afforded to the Contracting States (Eur.

Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C,

pp. 47 et seq., paras. 44 et seq.).

The Commission further recalls that in the field of immigration

"Contracting States enjoy a wide margin of appreciation in determining

the steps to be taken to ensure compliance with the Convention with due

regard to the needs and resources of the community and of individuals".

A State's obligation to admit to its territory foreign relatives of its

citizens will vary according to the particular circumstances of the

persons involved. Moreover, "as a matter of well-established

international law and subject to its treaty obligations, a State has the

right to control the entry of non-nationals to its territory". In

particular, the duties imposed by Article 8 (Art. 8) of the Convention

"cannot be considered as extending to a general obligation on the part

of a Contracting State to respect the choice by married couples of the

country of their matrimonial residence and to accept the non-national

spouses for settlement in that country" (Eur. Court H.R., Abdulaziz,

Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 33-

34, paras. 67 and 68).

As regards the facts of the present case, the Commission observes

that the applicant is a Swedish citizen, who married A. after the

National Immigration Board's initial order to expel him for reasons of

national security. She cannot therefore reasonably have expected to be

able to pursue her family life with A. in Sweden. It appears that A.'s

subsequent requests for a residence permit in Sweden have all been

rejected for the same security reasons, in the light of the National

Police Board's opinion of 27 May 1982, as maintained, most recently, on

16 April 1993. The Commission further notes that since 1981 the applicant

has frequently visited A. in Syria and has resided there for lengthy

periods. Since 1987 she has been accompanied by the daughter of the

family. It has not been shown that there are factual or legal obstacles

to the applicant and her daughter joining A. in Syria (cf. ibid., para.

68).

In these circumstances, the Commission finds that there are no

elements in the present case which would indicate that the respondent

Government exceeded their margin of appreciation in striking a fair

balance between the general interests of the community and the individual

interest of the applicant and her family, when refusing A. a residence

permit in Sweden. The Commission concludes, therefore, that there has

been no lack of respect for the applicant's family life.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2 The applicant further complains that A. has been unable to defend

himself against the suspicions of terrorism held by the Swedish

authorities and that his treatment by the Swedish authorities is due to

the fact that he is a Palestinian. She invokes Article 14 of the

Convention in conjunction with Article 6 para. 2 and Article 3 of

Protocol No. 4 (Art. 14+6-2+P4-3).

Article 14 (Art. 14) of the Convention prohibits discrimination in

the securement of Convention rights and freedoms. Article 6 para. 2

(Art. 6-2) of the Convention guarantees the presumption of innocence in

the determination of a criminal charge and Article 3 of Protocol No. 4

(P4-3) prohibits the expulsion or denial of entry to a State's own

nationals.

However, even assuming that the applicant may bring complaints on

her husband's behalf, the Commission first notes that the proceedings

before the National Immigration Board did not determine any

criminal charge against the husband. Accordingly, Article 6 para. 2

(Art. 6-2) of the Convention is not applicable to the case. Secondly, the

Commission notes that the applicant's husband is not a Swedish national.

Therefore, Article 3 of Protocol No. 4 (P4-3) is not applicable to the

case.

As neither of these provisions is in issue, Article 14 (Art. 14) of

the Convention also has no application, given the fact that it

complements the other substantive provisions of the Convention and its

Protocols. It has no independent existence, since it has effect solely

in relation to the "rights and freedoms" safeguarded by those provisions

(Eur. Court H.R., Inze judgment of 28 October 1987, Series A no. 126, p.

17, para. 36).

It follows that this part of the application must be rejected as

being incompatible ratione materiae with the provisions of the Convention

pursuant to Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)