CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mars 1994

.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. 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)