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The Principle of the Best Interests of the Child in Matters of Expulsion and Family Life in the Light of Guliyev and Sheina v. Russia Judgment

Guliyev ve Sheina- Rusya Kararı Işığında Sınır Dışına ve Aile Hayatına İlişkin Meselelerde Çocuğun Üstün Yararı İlkesi

Merve AKBULUT

The judgment is about the expulsion of the first applicant, who is married with the second applicant who is a Russian national and the allegation of violation of the applicants’ family life because of this expulsion. The Court held that it was necessary to take into account the best interests of the child when Russian authorities order the expulsion of the first applicant because that the first applicant have children. Therefore there is a violation of right to respect for family life under Article 8 of ECHR.

The Best Interests of the Child, Expulsion, Right to Respect for Family Life, de facto Family Life, Article 8, ECHR, Convention on the Rights of the Child.

Karar, Rus vatandaşı ikinci başvurucu ile evli birinci başvurucunun sınır dışı edilmesi neticesinde, başvurucuların aile hayatına saygı haklarının ihlal edildiğine ilişkindir. Mahkeme, başvurucu hakkında sınır dışı kararı verilirken, başvurucuların çocukları olduğu olgusu dikkate alınarak, “çocuğun üstün yararı” ilkesinin gözetilmesi gerektiğine ve bu sebeple Madde 8 bağlamında başvurucuların aile hayatlarının ihlal edildiğine karar vermiştir.

Çocuğun Üstün Yararı İlkesi, Sınır Dışı, Aile Hayatına Saygı Hakkı, Fiili Aile Hayatı, Madde 8, AİHS, Çocuk Hakları Sözleşmesi.

The Facts and the Process

The judgment is about the expulsion of a Azerbaijan national Mr. Natig Guliyev, who is married with the other applicant Ms. Yulia Yuryevna Sheina and the allegation of violation of the applicants’ family life because of this expulsion.

On 2002 or 2003 the first applicant arrived at Russia. He didn’t apply residence permit or Russian nationality so ıt’s unclear on what legal basis he resided in Russia. In 2004 Mr. Guliyev and Ms. Sheina started to live together.In 2007 and 2011 the applicants’ two children, T.S. and D.S., respectively, were born. The first applicant was not officially registered as their father but two children has the first applicant’s surname on their birth certificates. On 4 August 2012 the first applicant arrived in Russia from Azerbaijan. Under the bilateral visa-free agreement of 1997 between the countries, his stay was authorised until 2 November 2012. On 10 August 2012 the applicants concluded a religious marriage in the Perm congregational mosque and continued to reside together in Perm.

On 13 December 2013 the first applicant was detained by the police for a breach of the Code of Administrative Offences on account of his failure to apply for a renewal of his period of authorised stay. On 13 December 2013 the Sverdlovsk District Court in Perm ordered that the first applicant be fined RUB 2,000 and that he be subjected to administrative removal from Russia to Azerbaijan, which also implied a subsequent five-year entry ban. The first applicant appealed against the decision, claimed that his expulsion and five-year entry ban is a disproportionate measure and violate his right to respect for their family life. He also stated that his wife, the second applicant, was pregnant with their third child; he was the breadwinner of the family and the reason why he couldn’t apply to renew his residence permit in time was the leg injury he had.

Applicants officially registered their marriage on 21 February 2014 and on 6 March the first applicant was expelled from Russia. On 8 July the Supreme Court upheld the District Court Decision. On 23 July applicants’ third child was born with a congenital heart condition. He was in intensive care during this process.

On 26 March 2014 the applicants logded with ECtHR and alleged under Article 8 of the Convention that the first applicant’s expulsion had violated their right to respect for their family life. In particular, they complained that the expulsion and subsequent re-entry ban had been a disproportionate measure and that the domestic courts had failed to balance the private and public interests.

Russian Government argued that the first applicant’s family ties were not strong because the applicants registered their marriage and paternity of children after the first applicant’s expulsion order. Reference to the unofficial marriage hadn’t proved the validity of family life. Government also stated that there was no evidence that the first applicant was the family’s breadwinner and this was not the first time that he had failure to regularised for his stay in Russia he had already been fined in 2007 for a failure to regularised for his stay. Finally Russian Government claimed that the application of the second applicant should be rejected as incompatible ratione personae cause she had not apply domestic courts.

The Court’s Decision

The ECtHR noted that Russian Government objection related to the application of the second applicant must be dismissed regardless it takes as a ratione personae objection or non-exhaustion argument. Because Court’s settled case-law on the examination of complaints under Article 8 also implies examination of the complaints lodged by the family members of the persons whom the impugned measure was imposed. And if the objection is considered as a non-exhaustion argument, the Government has to satisfy1 the Court that the remedy they referred to was an effective one, available in theory and in practice at the relevant time, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success2 .

The Court indicated that when immigration is concerned, article 8 doesn’t impose any general obligation on a State to allow illegal foreigners settle in its territory except some particular circumstances. One of these particular circumstances is that children are involved. In such a case the State must take into account the best interests of the child and protect this interest effectively3 .

In the scope of the court’s case law, the notion of family includes not only marriage based relationships but also de facto “family” ties where the parties are living together outside of marriage4 . To decide whether a family life exist or not, the factors such as whether the couples live together, the length of the relationship and whether they have child together should be assessed5 .

As a result, The Court emphasizes that according to its case law, in the present case there is a family life within the meaning of Article 8 and domestic courts focused on the issue of the non-registration of marriage until expulsion decision instead of focusing on children’s best interest and they failed to make the necessary assessment so the Court held that there is a violation of Article 8.

The Assessment

In my opinion, Russian courts should have assessed how the expulsion and five-year entry ban decision could affect on respectively 7 and 3 years old children, then ruled the expulsion. This asessesment is an obligation in the scope of not only Article 8 of ECHR but also Article 3 of Convention on the Rights of the Child. Article 3 subparagraph 1 states “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” And Russian Federation is a signatory of Convention on the Rights of the Child. So Russian Courts have made decisions against its obligation within the these two Conventions by not making the best interest assessment.

On the other hand, the first applicant had lived for 12 years in Russia until the expulsion executed. And in this period the first applicant hasn’t committed any crime. Just as Government stated he has failed just one time to regularise his stay in this period. So it can’t be said that he’s a threat to the public order or public security. Therefore it can easily be said that this measure is not necessary in a democratic society and is not proportionate to the legitimate aim pursued. For these reasons ECtHR’s judgment is in line with the its settled case law.