CEDH · CASELAW;REPORTS;ENG — 4 avril 1995

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 23218/94                                  Riza GÜL                                   against                                 Switzerland                          REPORT OF THE COMMISSION                          (adopted on 4 April 1995)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 16 - 31). . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 16 - 26) . . . . . . . . . . . . . . . . . . . . 3              a)     Applicant's situation in Switzerland                  (paras. 16 - 20) . . . . . . . . . . . . . . . . . 3              b)     Applicant's request for the entry of his                  sons into Switzerland                  (paras. 21 - 25) . . . . . . . . . . . . . . . . . 3              c)     Situation of the applicant's son E. in Turkey                  (para. 26) . . . . . . . . . . . . . . . . . . . . 4         B.    Relevant domestic law and practice            (paras. 27 - 31) . . . . . . . . . . . . . . . . . . . . 4   III.   OPINION OF THE COMMISSION       (paras. 32 - 71). . . . . . . . . . . . . . . . . . . . . . . 6         A.    Complaint declared admissible            (para. 32) . . . . . . . . . . . . . . . . . . . . . . . 6         B.    Point at issue            (para. 33) . . . . . . . . . . . . . . . . . . . . . . . 6                              TABLE OF CONTENTS                                                                    Page         C.    Article 8 of the Convention            (paras. 34 - 70) . . . . . . . . . . . . . . . . . . . . 6              a)     Interference with the applicant's rights                  under Article 8 para. 1 of the Convention                  (paras. 35 - 43) . . . . . . . . . . . . . . . . . 6              b)     Justification of the interference under                  Article 8 para. 2 of the Convention                  (paras. 44 - 70) . . . . . . . . . . . . . . . . . 7              CONCLUSION            (para. 71)    . . . . . . . . . . . . . . . . . . . . . .10   DISSENTING OPINION OF Mr. S. TRECHSEL, JOINED BY MM. C.A. NØRGAARD, E. BUSUTTIL, G. JÖRUNDSSON, J.-C. SOYER, M.A. NOWICKI, N. BRATZA, I. BÉKÉS AND J. MUCHA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11   DISSENTING OPINION OF Mr. L. LOUCAIDES. . . . . . . . . . . . . . .13   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .14   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .15   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant, a Turkish citizen born in 1947, resides at Pratteln in Switzerland.   Before the Commission he is represented by Mr. J. Walker, a lawyer practising at Olten in Switzerland.   3.     The application is directed against Switzerland.   The respondent Government are represented by their Deputy Agent, Mr. Ph. Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice.   4.     The case concerns the applicant's complaint under Article 8 of the Convention that his son is not permitted to join him in Switzerland.   B.     The proceedings     5.     The application was introduced on 31 December 1993 and registered on 10 January 1994.   6.     On 11 April 1994 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on its admissibility and merits.   7.     The Government's observations were submitted on 21 June 1994. The applicant replied on 26 August 1994.   On 8 July 1994 the Commission granted the applicant legal aid for the representation of his case.   8.     On 10 October 1994 the Commission declared admissible the complaint under Article 8 of the Convention relating to the applicant's son E.   The remainder of the application was declared inadmissible.   9.     The text of the Commission's decision on admissibility was sent on 20 October 1994 to the parties who were invited to submit further observations on the merits of the case.   Both parties submitted their observations on 2 December 1994.   Further observations were received from the Government on 16 January 1995 and from the applicant on 21 February 1995.   10.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   11.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  S. TRECHSEL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS   12.    The text of this Report was adopted on 4 April 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   14.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   15.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case         a)    Applicant's situation in Switzerland   16.    Until 1983 the applicant resided in Turkey with his wife and two sons, namely T., born in 1971, and E., born in 1983.   His wife suffers from epilepsy.   17.    The applicant entered Switzerland in 1983 and filed a request for asylum.   He worked in a hotel kitchen until 1990 when he fell ill.   18.    In 1987 his wife, who was still in Turkey, fell into a fire when suffering an epileptic fit and was severely burnt.   As she could not be treated adequately in the area where she lived, she travelled to Switzerland where she was treated as an emergency case.   Two fingers of her left hand were eventually amputated.   19.    In 1988 their child N., a girl, was born in Switzerland.   Soon it became clear that the applicant's wife who continued to suffer from epilepsy could not care for the child, and N. was placed in a home in Switzerland.   It also transpired that the wife was unable to return to Turkey.   20.    On 26 June 1989 the Aliens' Police (Fremdenpolizei) of the Canton of Basel-Landschaft granted the applicant, his wife and N. a residence permit (Aufenthaltsbewilligung) in Switzerland on humanitarian grounds. In view thereof the applicant withdrew his request for asylum.         b)    Applicant's request for the entry of his sons            into Switzerland   21.    The applicant then filed a request to permit the sons T. and E., who were still in Turkey, to join him in Switzerland.   On 19 September 1990 the Aliens' Police of the Canton of Basel-Landschaft dismissed the request.   It found in particular that the applicant and his wife did not have an apartment meeting the necessary requirements; that they did not have the financial means to take care of the family; and that T. could not join them in Switzerland as he was already 18.   22.    The applicant's appeal against this decision was dismissed by the Government (Regierungsrat) of the Canton of Basel-Landschaft on 30 July 1991.   It found that the applicant's children could not be permitted entry into Switzerland as he only had a residence permit, not a permit to establish domicile (Niederlassungsbewilligung), as required by Section 17 para. 2 of the Federal Act on Residence and Domicile of Foreigners (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer; see below, Relevant domestic law and practice). Furthermore, Article 8 of the Convention could only be of relevance if the applicant had either Swiss nationality or a permit to establish domicile.   23.    Insofar as the Aliens' Police could on its own accord permit children under 18 years of age to join the applicant and his wife according to Section 38 of the Federal Ordinance on the Limitation of the Number of Foreigners (Verordnung über die Begrenzung der Zahl der Ausländer; see below, Relevant domestic law and practice), the Government noted that T. was 18.   In respect of E. the Government found that the applicant's income, derived from social welfare, amounted to 2,060 SFr per month and thus did not reach the subsistence minimum of 2,710 SFr per month.   Insofar as the applicant was awaiting an invalidity pension, his family would rely entirely on social security benefits.   The social security authorities (Fürsorgebehörde) could not be expected to ensure the subsistence of further children in respect of which it was clear in advance that the they would burden (zur Last fallen) the authorities.   Moreover, the applicant's wife was unable to rear N. on account of her health; it appeared likely that the applicant's family could not take care of E. and that he would also be placed in a home.   In this respect the Government relied on Section 39 para. 1 of the Federal Ordinance (see below, Relevant domestic law and practice).   24.    Finally, the Government found that it could not be the purpose of residence permits granted on humanitarian grounds further to privilege the persons concerned by granting their family members the right to join them.   25.    Against this decision the applicant filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht) dismissed on 2 July 1993.   The Court recalled its case-law on Article 8 of the Convention according to which a person could only join a family member in Switzerland if the latter had Swiss nationality or a permission to establish domicile (see below, Relevant domestic law and practice).    Moreover, in the present case it could not be completely excluded that in future the circumstances, in particular the medical grounds, which justified the granting of a residence permit on humanitarian grounds, would change, or that other grounds would arise militating against prolongation of the residence permit.           c)    Situation of the applicant's son E. in Turkey   26.    E. has been living in Istanbul since 1993.   According to the Government's submissions he is living with the family of his older brother T., where also his grandfather lives.   The applicant submits that E.'s residence varies; according to a custom among Kurdish families, he alternates by spending two to three days each in a different family in Istanbul stemming from his home village; occasionally, he lives with his brother's family.   B.     Relevant domestic law and practice   27.    According to Section 4 of the Federal Act on Residence and Domicile of Foreigners (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer), within the framework of the legal order, the authorities will freely appreciate (nach eigenem Ermessen) whether to grant a residence permit.   28.    According to Section 16 para. 1 of the Federal Act, when granting a residence permit the authorities will consider, inter alia, the economic interests of the country.   29.    Section 17 para. 2 of the Federal Act provides, inter alia, that if a foreigner has permission to establish his domicile (Niederlassungsbewilligung) in Switzerland, this permission will include unmarried children under 18 years of age.   30.    According to Section 38 of the Federal Ordinance on the Limitation of the Number of Foreigners (Verordnung über die Begrenzung der Zahl der Ausländer), the Cantonal Aliens' Police may permit the spouse and unmarried children under 18 years of age to join a foreigner in Switzerland.   According to Section 39 para. 1 of the Ordinance, members of the family may join the foreigner on condition, inter alia, that he has sufficient means to support the family and the care of the children is assured.   31.    According to the case-law of the Federal Court (Bundesgericht), Article 8 of the Convention entitles a person to join a family member in Switzerland if the latter had either Swiss nationality or permission to establish domicile (see ATF <Arrêts du Tribunal Fédéral> 116 Ib 355; 115 Ib 4; 111 Ib 163 et seq.).   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   32.    The Commission has declared admissible the applicant's complaint that the Swiss authorities will not permit his son E. to join him in Switzerland.   B.     Point at issue   33.    The point at issue is whether there has been a violation of Article 8 (Art. 8) of the Convention.   C.     Article 8 (Art. 8) of the Convention   34.    The applicant complains that the Swiss authorities did not permit his son E. to join him in Switzerland.   He relies on Article 8 (Art. 8) of the Convention which states, insofar as relevant:         "1.   Everyone has the right to respect for ... family life ...         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."         a)    Interference with the applicant's rights            under Article 8 para. 1 (Art. 8-1) of the Convention   35.    The first question is whether there has been an interference with the applicant's rights under Article 8 para. 1 (Art. 8-1) of the Convention.   36.    The applicant submits that he has not been able to visit E. as he only draws an invalidity pension and lacks money to travel.   His wife was unable to travel to Turkey on account of her illness.   In fact, the Swiss authorities, by refusing E. entry into Switzerland, have prevented the applicant and his son from seeing each other.   37.    The Government submit that the applicant only has a residence permit on humanitarian grounds; he has no right to stay in Switzerland, and cannot therefore invoke the rights of Article 8 (Art. 8) of the Convention.   Moreover, the applicant has not seen E. since 1991; his wife has not seen E. since 1988.   38.    The Commission recalls that no right of an alien to enter, remain or reside in a particular country is as such guaranteed by the Convention.   However, if a person is refused entry to a country where his close family resides, an issue may arise under Article 8 (Art. 8) of the Convention (see No. 10375/83, Dec. 10.1.84, D.R. 40 p. 196).   39.    The Commission's first task is to consider whether a sufficient link exists between the relatives concerned as to give rise to the protection of Article 8 (Art. 8) of the Convention.   Generally, the protection of family life under Article 8 (Art. 8) involves close family members, such as parents and their minor children (see No. 10375/83, ibid.).   40.    In the present case, E. is the applicant's son; he is currently 12 years old.   It is true that the applicant and his wife have not visited E. for some time, though the Commission notes that they are indigent, and the applicant's wife is ill.   In the Commission's opinion, however, a close link between the applicant and E. arises naturally from the relationship existing between a minor child and his parents.   41.     In respect of his son E. the applicant therefore enjoys the protection afforded by Article 8 (Art. 8) of the Convention in respect of family life.   42.    As the Swiss authorities refuse to permit E. to join his father, the applicant, in Switzerland, there has been an interference with the applicant's right under Article 8 para. 1 (Art. 8-1) of the Convention.   43.    The Commission must therefore examine whether the interference satisfied the conditions under Article 8 para. 2 (Art. 8-2) of the Convention.         b)    Justification of the interference under            Article 8 para. 2 (Art. 8-2) of the Convention   44.    The first question is whether the interference was "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   45.    The Government contend that the measure was based on the Federal Act on Residence and Domicile of Foreigners.   46.    The Commission notes that in its decision of 30 July 1991 the Government of the Canton of Basel-Landschaft, when refusing E. entry into Switzerland, relied on Section 17 para. 2 of the Federal Act on Residence and Domicile of Foreigners as well as on Sections 38 and 39 of the Federal Ordinance on the Limitation of the Number of Foreigners (see above, paras. 22 and 23).   47.    The interference was therefore "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   48.    The next question to be examined under Article 8 para. 2 (Art. 8-2) of the Convention is whether the interference had a legitimate aim.   49.    The Government submit that the purpose of the measure was the prevention of disorder, the protection of the economic well-being of the country and the protection of the rights and freedoms of others.   50.    The Commission notes that the Government of the Canton of Basel- Landschaft in its decision of 30 July 1991 refused E. entry into Switzerland as it did not appear certain whether the applicant's family could take care of E.   Moreover, the applicant's family relied entirely on social security benefits and E.'s residence in Switzerland would further burden the social security authorities (see above, para. 23).   51.    The Commission accepts therefore that the measure was "in the interests of ... the economic well-being of the country" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   52.    Finally, the Commission must examine whether the interference was "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   53.    The applicant submits that E.'s situation in Turkey is not optimal.   He moves around in different families and school attendance is irregular, particularly as his grandfather cannot always pay school fees.   If E. lived in Switzerland he would no longer have the disadvantages of his present unstable life.   54.    The applicant further contends that he, his wife and their daughter N. cannot be expected to return to Turkey where medical treatment for his wife would be insufficient and the social network would be missing.     55.    The applicant also submits that, had E. been permitted to enter Switzerland with his mother earlier on, he would have also received a residence permit on humanitarian grounds.   The applicant draws an invalidity pension, so he can take care of E.   The daughter N. was only placed in a home as the applicant could not take care of her when she was a baby; meanwhile, it would be inappropriate to take N. away from the home.   56.    The Government submit that the measure was "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention, having regard to the margin of appreciation left to States in such matters.   Reference is made in particular to the fact that the applicant's family could live in another country, and that it is not excluded that the applicant's wife could be treated in Turkey. The applicant left Turkey of his own free will, when E. was three months old, and he could return to Turkey if he wished.   The applicant and his wife do not have the financial means to rear E., whose stay in Switzerland would be disadvantageous to his well-being.   Thus, it would not be in the interest of E. to let him enter Switzerland where in all likelihood he could not lead a family life.   57.    The Government contend that the conditions in which E. currently lives in Turkey have no bearing on the right under Article 8 (Art. 8) of the Convention to respect for family life.   It is submitted, however, that the economic conditions are not optimal.   His aunts who live there apparently have their own families and it is doubtful whether they could take care of E.   58.    According to the Convention organs' case-law, in determining whether an interference was "necessary in a democratic society", due allowance must be made for the margin of appreciation that is left to the Contracting States.   However, in order to be "necessary" the interference must correspond to a pressing social need and be proportionate to the legitimate aim pursued (see Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, p. 15 et seq., para. 28).   59.    Cases such as the present one do not only concern family life within the meaning of Article 8 (Art. 8) of the Convention, but they also have a bearing on immigration policy (see Eur. Court H.R., Abdulaziz and others judgment of 28 May 1985, Series A no. 94, p. 34, para. 67).   In the present case the Commission notes, for instance, the decision of the Government of the Canton of Basel-Landschaft of 30 July 1991 according to which it could not be the purpose of residence permits granted on humanitarian grounds further to privilege the persons concerned by granting their family members the right to join them (see above, para. 24).   60.    In such matters the Commission recalls that it cannot be the Convention organs' function to pronounce themselves in general terms on the immigration and residence policies of Contracting States. Indeed, the Convention does not prevent Contracting States in principle from regulating the entry and length of stay of aliens (see above, para. 38).   The Convention organs only have to examine the interferences complained of, and they must do so not only from the point of view of immigration and residence, but also with due regard to what is at stake for the applicants.   Thus, in the present case the legitimate aim pursued has to be weighed against the seriousness of the interference with the applicant's right to respect for his family life within the meaning of Article 8 (Art. 8) of the Convention (see Eur. Court H.R., Berrehab judgment, loc. cit., p. 16, para. 16).   61.    The Commission has examined the seriousness of the interference complained of.   It finds that E. risks growing up without ever having lived together with his father, the applicant.   The Swiss authorities' refusal to let E. enter Switzerland therefore seriously disrupted the applicant's family life within the meaning of Article 8 (Art. 8) of the Convention.   62.    The Commission further notes that the parties disagree as to E.'s situation in Turkey.   According to the Government's submissions he is living with the family of his older brother T., where also his grandfather lives.   The applicant submits that E.'s residence varies. However, the Commission notes both parties' submissions according to which E.'s situation in Turkey is unsatisfactory for economic reasons. The applicant submits furthermore that in view of financial difficulties E.'s school attendance is irregular.   63.    Against this background the Commission has examined the grounds adduced by the Swiss authorities when refusing E. entry into Switzerland.   64.    In the domestic proceedings as well as before the Commission reference was made mainly to the fact that the applicant and his wife were not in a position to rear E.   Thus, the applicant's wife was ill and was unable to rear their daughter N. who was placed in a home.   It was therefore likely that E. would also be placed in a home.   65.    However, the Commission notes the applicant's submissions that he no longer works on account of his invalidity and is therefore in a position to rear E. himself; and that N. has only been left in the children's home as she has hitherto spent virtually all her life there. In the Commission's opinion, it must therefore be accepted that it is the intention of the applicant and his wife that they should live together with E. and rear him, rather than place him in a foster home.   66.    As a further ground, the Federal Court in its decision of 2 July 1993 found that it could not be excluded that in future the circumstances, in particular the medical grounds, justifying the granting of a residence permit on humanitarian grounds could change, or that other grounds would arise militating against prolongation of the residence permit (see above, para. 25).   Before the Commission the Government have also argued that the applicant could be expected to return with his family to Turkey.   67.    It is true that it would serve little purpose if E. were to enter Switzerland shortly before the applicant and his wife were to leave the country.   However, the Commission sees no indication that the applicant and his wife wish to do so.   Thus, the applicant has been living in Switzerland since 1983, his wife since 1988, and they appear firmly rooted there.   Moreover, given the current ill-health of the applicant's wife, it does not appear that in the near future the circumstances would change to such an extent that the applicant and his wife could be expected to leave Switzerland.   68.    A further reason adduced both in the domestic proceedings and before the Commission was that the applicant would be unable to ensure E.'s subsistence; the latter would therefore burden the social security authorities.   69.    In the Commission's opinion, however, such financial considerations are not sufficient to justify a permanent separation of a child from its parents.   70.    In the circumstances of the present case the Commission does not find that a fair balance was struck between the various interests at stake.   The interference was not therefore proportionate to the legitimate aim pursued.   As a result, it was not justified under Article 8 para. 2 (Art. 8-2) of the Convention.         CONCLUSION   71.    The Commission concludes, by 14 votes to 10, that in the present case there has been a violation of Article 8 (Art. 8) of the Convention.   Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)                                                           (Or. English)                    DISSENTING OPINION OF Mr. S. TRECHSEL        JOINED BY MM. C.A. NØRGAARD, E. BUSUTTIL, G. JÖRUNDSSON,       J.-C. SOYER, M.A. NOWICKI, N. BRATZA, I. BÉKÉS AND J. MUCHA         I regret that in the present case I cannot follow the opinion of the majority.   I wish to stress that I fully recognize the very difficult situation of the applicant's family in a humanitarian perspective.   However, I do not agree that the respondent Government can be held responsible for this.         What is at issue here, as far as the Convention is concerned, is the refusal of the Swiss Government to issue the applicant's son E. with an entrance and residence permit.   The majority has come to the conclusion that this constitutes an interference with the applicant's right to respect for his family life.         In my view, however, the omission complained of cannot be analysed as an "interference" within the meaning of Article 8 para. 2 of the Convention.   As the object of the criticism addressed to the Government is the fact that a specific action was not taken, the case falls to be considered under Article 1 together with Article 8 para. 1 of the Convention.   The question, therefore, is: Did the refusal of an entry permit to the applicant's son E. constitute a failure, on behalf of the Government, to secure respect for the applicant's family life (see e.g., Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 33 et seq., para. 67).   As the Court stressed (loc. cit.), "this is an area in which the Contracting Parties 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".   The Court came to the conclusion that the refusal of the applicants' husbands' immigration to the United Kingdom did not constitute "lack of respect" for family life.         It is true that in the Abdulaziz, Cabales and Balkandali case the immigrants did not already have a family which they left behind in another country until they had achieved settled status in the United Kingdom.   In the present case, the applicant's son E. had been born three months before the applicant himself entered Switzerland in 1983. His wife at that time remained in Turkey; she followed him only in 1987 after having suffered a severe accident.         On the other hand, the applicant did not qualify for a settlement permit in Switzerland, but was only permitted to stay on humanitarian grounds.   The family is fully dependent on social security and the daughter N., born in Switzerland, was placed in a home because the applicant's wife could not take care of her.   This being the case, it is at least extremely doubtful whether the applicant would be able to take care of E. without resorting to another placement in a foster home, having regard to the circumstances in which the family is living in Switzerland, particularly the wife's state of health and the family's dependence on social security benefits.   If E. were to be placed in a foster home, as seems probable in these circumstances, it is difficult to see how the quality of their family life would be substantially enhanced by the presence of E. on Swiss territory.   It is also rather difficult to understand why respect for family life would require a residence permit for E. while the applicant did not avail himself of the possibility to establish full family life with his daughter N. who does live in Switzerland.         Finding a violation of Article 8 in the present case amounts to saying that, as the Government accepted the applicant and his wife to stay on humanitarian grounds, they must also admit their son who has hitherto lived in Turkey.   He is twelve years old and would certainly have considerable difficulties to catch up with schooling in Switzerland, in particular as there is no indication that he has any knowledge of the German language.   His situation in Turkey may not be fully satisfactory, but important as such a consideration may be on a humanitarian level, I cannot agree that it is a relevant factor for imposing upon the Swiss Government the obligation to let him immigrate. I even find it very doubtful whether a transfer to Switzerland can be regarded as being in the interest of E.         It is true that the applicant has not seen his son in a long time.   However, there is nothing in the file which would permit one to conclude that it would not be possible for E. to join his parents for a visit.         Considering all the circumstances of the present case, I have come to the conclusion that the refusal of the Swiss authorities to let E. join his parents in Switzerland does not amount to a "lack of respect" for the applicant's family life.   There was, accordingly, no breach of Article 8 of the Convention.                                                           (Or. English)                   DISSENTING OPINION OF Mr. L. LOUCAIDES         I regret that I cannot agree with the majority in this case.         The Commission does not recognise the right of an alien to enter in a particular country.   In those exceptional cases, where an alien has close relatives in a country which is Party to the Convention and his admission is sought on the basis of the right to respect for his or his relatives' family life, the question whether there is an obligation on the part of the State to admit such an alien must depend on the particular circumstances of the case.   In this respect account must also be taken of the State's margin of appreciation.         Humanitarian grounds are not sufficient to create an obligation on the part of the State to admit an alien.   Such an obligation, in the context of the right to respect for family life, can only exist if (a) the non-admission of the alien would inevitably amount to a disruption of the complainant's family life lawfully established in the territory of the State concerned; and if (b) the non-admission is not found to be necessary for any of the purposes set out in para. 2 of Article 8 of the Convention.         In this particular case applicant's family life was at the material time already disrupted through no fault of the respondent Government.   Applicant's daughter N., born in Switzerland, could not be taken care of either by the applicant or his wife and she had to be placed in a home.   His sons T. and E. had been living in Turkey ever since the applicant entered Switzerland in 1983.   Applicant's son E. was already twelve years old when the refusal complained of to admit him in Switzerland took place.         Applicant was only permitted to reside in Switzerland temporarily on humanitarian grounds.   He was not given a permit to establish domicile.   Admission of an alien under these circumstances could not reasonably entail an obligation on the part of the State concerned to allow entry of his family as well, or be a ground for legitimate expectations for such entry.   It was a temporary, conditional and personal admission of the applicant not extending to his family.         Applicant complains that the refusal to admit his son E. in Switzerland amounted to a breach of his right to respect for his family life within the meaning of Article 8 of the Convention.   In the light of the above, I believe that applicant's complaint is unfounded.                                 APPENDIX I                         HISTORY OF THE PROCEEDINGS   Date                         Item _________________________________________________________________   31 December 1993             Introduction of application   10 January 1994              Registration of application   Examination of admissibility   11 April 1994                Commission's decision to communicate the                             case to the respondent Government and to                             invite the parties to submit observations                             on admissibility and merits   21 June 1994                 Government's observations   08 July 1994                 Commission's granting of legal aid   26 August 1994               Applicant's observations in reply   10 October 1994              Commission's decision to declare                             application in part admissible and in part                             inadmissible   Examination of the merits   2 December 1994              Parties' observations   16 January 1995              Government's further observations   21 February 1995             Applicant's further observations   25 February 1995             Commission's consideration of the state of                             the proceedings   4 April 1995                 Commission's deliberations on the merits,                             final vote and adoption of the Report