CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 juillet 2007

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Rozakis, President,   Mr   L. Loucaides,   Mrs   N. Vajić,   Mr   K. Hajiyev,   Mr   D. Spielmann,   Mr   S.E. Jebens,   Mr   G. Malinverni, judges, and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 16 May 2006, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together. Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court. Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Iftikhar Abbasi, is a Pakistani national who was born in 1976 and at present is living in Slough, England. The applicant, who was granted legal aid, was represented before the Court by Mr M. Georgiou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent, Mr   P.   Clerides, Attorney-General of the Republic of Cyprus. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant came to Cyprus on 29 January 2001 as a visitor. Following an application to the immigration authorities he was granted a temporary residence permit on 13 June 2001 until 12 June 2006 for working as a director of an offshore company in Nicosia. The permit was subject to the condition that it would lapse if the applicant ceased to work for the particular company. On 21 May 2002 the applicant married a Cypriot national. On 28 May 2003, following an application to the immigration authorities dated 24 February 2003, the applicant was granted a temporary residence permit until 30 April 2004, for the purpose of enabling him to remain in Cyprus with his wife. The Government submitted that in the meantime the immigration authorities had been informed that the aforementioned company had ceased to employ any staff and that from 20 June 2003 it had no longer been allowed by the Central Bank of Cyprus to employ any foreign staff without prior written permission from that bank. The Government submitted a copy of a letter dated 20 June 2003 sent by the Central Bank to the aforementioned company in this respect. The applicant stated that he had not known about this. Following an application to the immigration authorities on 14 January 2004, the applicant’s residence permit was renewed on 27 July 2004 until 23   July 2005 for the purpose of enabling him to remain in Cyprus with his wife and also to work as a labourer with a company in Nicosia. On 17 February 2004 the applicant applied to the Ministry of Interior (Civil Registry and Migration Department) for naturalisation. On 7 February 2005 the applicant’s wife made a statement to the immigration authorities stating, inter alia , the following: “From the beginning of our marriage my husband was working as a labourer with a building company in Nicosia staying there most days and coming to visit only on weekends. He showed from the beginning that he was only interested in his own good time and how he would arrange his visa each time so as to have no problems with the police, without paying attention to me, as if I did not exist in his life. He was not interested in how I got along or in the problems I had nor did he show any interest about our home and he did not have it in mind that at some moment we would have a family. This, that is, the fact that he lives in Nicosia and visits me once or twice a week, continues until today. Recently and, in particular, after we were notified by Sergeant ... of the Department of Immigration in Limassol that his application for naturalisation was pending in Limassol and that we should make an appointment with him, his attitude has changed and he continuously mollifies me so I will sign that I have no problem with our marriage so he can obtain Cypriot nationality. From the day that Sergeant ... called his attitude towards me changed immediately for the best. I, however, because I understand that he is doing all this to obtain Cypriot nationality, want that the application we submitted for nationality is not taken into account at the present stage but to be examined at least in about a year, so that after our appointment with Sergeant ... my husband will think that it is all over, and I will see his real attitude towards me and his real intentions for our marriage. I have decided that if my husband does not change attitude towards me, I will file a divorce petition, because I can not bear this situation any longer”. On 19 October 2005 the applicant applied to the immigration authorities for the renewal of his temporary residence permit for a period of one year to enable him to remain in Cyprus with his wife. The applicant submitted that he had made this application with his wife. By letter dated 14 November 2005 the Ministry of Interior turned down the applicant’s application for naturalisation as he did not fulfil the residence requirements set out in the Civil Registry Laws of 2002-2003. In particular, the applicant had not resided for a continuous period of seven years in Cyprus as required by the Civil Registry Law 141(1)/2002 for aliens in his position. By letter dated 24 February 2006 the Ministry of Interior turned down his application of 19 October 2005 concerning the renewal of his residence permit. The letter stated that the application had been very carefully considered but it could not be approved because the applicant did not live with his Greek-Cypriot wife. The applicant was thereby requested to leave Cyprus immediately otherwise all necessary measures would be taken for his removal. The applicant, however, submitted that he had not received an answer concerning this application. In the meantime, on 11 January 2006 the applicant’s wife filed a divorce petition before the Family Court of Limassol on the ground that the marriage between her and the applicant had broken down irretrievably (petition no. 13/2006). In the divorce petition it was stated, inter alia , as follows: “The separation between the parties occurred in the beginning of January 2003, when the applicant requested the respondent after some argument that he had caused, to take his things and abandon the marital home. The respondent then told the applicant that he had married her to secure a residence permit for Cyprus. From then onwards the respondent lives in Nicosia. The respondent was a shirker, he did not work and did not contribute financially to the daily expenses of the maintenance and up-keep of his family. Nor did he demand that the applicant maintain him. ... As a result of the behaviour of the respondent the parties’ marriage has been irretrievably broken down so that the continuation of marital life has become unbearable for the applicant. The applicant has reached the infallible conclusion that she cannot and also does not wish to live with the respondent anymore”. On the one hand, the Government noted that the divorce petition had been served on the applicant in person on 14 January 2006. In this connection, the Government submitted a copy of the affidavit concerning the service of the petition and a copy of a letter dated 2 October 2006 by the Registrar of the Limassol District Court. In the petition it was specified that it had been fixed before the Family Court for directions for 8 February 2006. On that date the applicant did not appear in court either in person or through counsel and the petition was fixed for proof for 22 February 2006. The applicant did not appear before the court on that date. On the other hand, the applicant stated that he had never been served with a divorce petition, at least in a language that he could understand nor had he ever been served with a petition or any other written document indicating in any language he could understand that it was a legal document for which he should seek translation. He had not therefore been aware that he had had to appear in court on the above dates. On 28 February 2006 the applicant went to the United Kingdom. The Government stated that the applicant left following their request of 24   February 2006. However, the applicant submitted that he had not received the Government’s letter and that he had left Cyprus to visit his sister who permanently resided in the United Kingdom. On 5 May 2006 the applicant returned to Cyprus but was refused entry. The applicant submitted that the immigration authorities at the airport had refused to let him enter into the country despite the fact that he had had a visa from the Cypriot Embassy in the United Kingdom and that his wife and friends had been at the airport waiting for him. He stated that the immigration authorities had claimed that he had married his wife in order to acquire a visa, that they had detained him and then made him buy a ticket for the United Kingdom where he had to return. The applicant stated that on 7 May 2006 he had contacted the Cypriot embassy in the United Kingdom and that they had informed him that they had forwarded his case to the immigration authorities in Cyprus. By letter dated 12 March 2007 the Government informed the Court that on 18 December 2006 the applicant’s wife had withdrawn the divorce petition before the Family Court. B.     Relevant domestic law The admission, residence and expulsion of aliens are regulated by the Aliens and Immigration Law of 1959 (Cap. 105, as amended). Under section 6 (1) of the above Law a person is not permitted to enter the Republic if he is a “prohibited immigrant” which includes, inter alia , any person who enters or resides contrary to any prohibition, condition, restriction or limitation contained in this Law or in any permit granted or issued under this Law (sections 6 (1) (k) and (m)). A “prohibited immigrant” can be ordered to leave the Republic under section 13 of the same Law. Furthermore, under section 7A (introduced by Law 22(1)/2001), if the immigration authorities ascertain that an alien has contracted a sham marriage, then they can , inter alia, prohibit the alien in question to remain in the Republic, annul or refrain from renewing that alien’s residence permit and order his or her expulsion in accordance with the provisions of the Law (section 14). In order to ascertain whether a particular marriage is a sham, provision is made in section 7A (2) for the immigration authorities to conduct interviews of the spouses, together or separately, or of any person who is in a position to give them information in this regard. Factors that are considered as indicating that a marriage is sham include the fact that a couple do not live under the same roof, the fact that there is no appropriate contribution to marital obligations and contradictory declarations by the spouses concerning, inter alia , important information of a personal nature (section 7A (3)). A decision by the immigration authorities taken under section 7A (1) is subject to a hierarchical recourse to the Minister of Interior within twenty days from the date the decision was issued (Section 7C). In the event such a recourse is filed the alien can remain in the Republic until the Minister’s decision is issued. The Minister’s decision can be challenged before the Supreme Court by way of administrative recourse under Article 146 (1) of the Constitution. This provision provides as follows: “ The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.” Under section 7D of the same law any alien or a citizen of the Republic who has performed a sham marriage or taken part in any other way in the celebration of such a marriage, commits an offence which is punishable by a sentence of imprisonment for up to three years and/or a pecuniary sentence up to 3,000 Cyprus pounds. Naturalisation is regulated by the Civil Registry Law 141(1)/2002 (as amended). In particular, section 111 of the third schedule of that Law set out the requirements concerning naturalisation of aliens. Finally, Article 15 of the Constitution guarantees the right to private and family life. It provides as follows: “1. Every person has the right to respect for his private and family life. 2. There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person”. COMPLAINTS The applicant, without invoking a specific provision of the Convention complained about the treatment he received from the Cypriot authorities at the airport and of an interference with his private and family life. More specifically, he alleged that he had been prevented from returning to Cyprus where he lived with his wife, worked and had his belongings and that the immigration authorities had not given him any reasons for their decision. THE LAW The applicant, without invoking a specific provision of the Convention, complained that the refusal of the Cypriot authorities to allow him to enter into Cyprus constituted an interference with his private and family life. The Court considers that the applicant’s complaints fall to be examined under Article 8 of the Convention which reads as follows, in so far as relevant: “1.     Everyone has the right to respect for his private and 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.” 1.     Arguments by the parties The Government submitted that the applicant had not exhausted domestic remedies. Firstly, they noted that the applicant had not challenged the decision of the immigration authorities refusing to renew his residence permit. The applicant could have filed a hierarchical recourse to the Minister of the Interior under section 7C of the Aliens and Immigration Law (as amended) within twenty days from the issuing of that decision. Subsequently, the decision of the Minister, if negative, could be challenged under Article 146 of the Constitution before the Supreme Court by way of administrative recourse. In the alternative, the Government stated that the applicant could have filed a recourse directly to the Supreme Court after the lapse of a twenty-day period. Secondly, the applicant could have filed a recourse under Article 146 of the Constitution challenging the subsequent refusal of the authorities to permit him to enter into the Republic. In this respect, the Government argued that in the context of such recourses the applicant could have raised a complaint concerning his private and family life both under Article 15 of the Constitution and Article 8 of the Convention. As to the merits of the case, the Government submitted that the relationship between the applicant and his wife could not be regarded as “family life” within the meaning of Article 8 of the Convention. In this context, they pointed out that from the beginning of the applicant’s marriage, he and his wife had not lived together, but resided in different towns and only met up at week-ends at the wife’s house in Limassol. They did not therefore have a common life together as a couple. It was clear from his wife’s declaration of 7 February 2005 to the immigration authorities and the divorce petition she had filed before the Family Court that she no longer wished to remain married to the applicant and that the applicant did not wish to start a family with her. All the information indicated that the marriage was a sham, contracted by the applicant for the sole purpose of enabling him to obtain a residence permit in order to remain in Cyprus. Furthermore, the applicant had never contested the divorce proceedings and had never appeared before the court when the petition was fixed for directions. However, even assuming that there was family life, the Government contended that the interference was justified under the second paragraph of Article 8, as being necessary for protecting the economic well-being of the country aiming at the regulation of the labour market. The interference was made under and in accordance with the Aliens and Immigration Law (sections 6 (1) (k) and (m)). The applicant had been an alien whose temporary resident permit had not been renewed, and could therefore be ordered to leave under sections 7 and 13 (1) of that Law. In the Government’s view, in the particular circumstances of the case, the decision of the immigration authorities not to renew the applicant’s temporary residence permit and their subsequent refusal to allow him to enter the Republic had not been disproportionate to the legitimate aim pursued. The applicant contested the Government’s submissions. He submitted that he had not received the Government’s refusal of his application of 19   October 2005 and at the airport he had not been given the opportunity to challenge the authorities’ refusal to allow him enter the country. In any event, he submitted that there were no effective domestic remedies which he could have resorted to as the administrative decisions by the authorities had not been executory acts and therefore could not be challenged under Article 146 of the Constitution. The applicant submitted that the Government’s refusal to allow him to enter the country constituted an interference with his right to respect for his family and private life as it separated him from his wife. Although problems in his marriage had began to appear towards the end of 2005, there was clearly a valid marriage and family ties that had to be protected. The applicant denied that his marriage was a sham or one of convenience. The applicant noted that the authorities had renewed his residence permit for a period of two years on the basis of his marriage. For the purposes of renewal his wife had had to present herself at the immigration authorities in order to file a joint application or at least sponsor or support his application. In the applicant’s opinion, it was not for the Government to interfere in a marriage and bring it to a premature end. In support of his arguments the applicant referred to, inter alia , the judgments of the European Court of Justice in the cases of Diatta v. Land Berlin (Case 267/83 [1985] ECR 567) and R v IAT & Singh ex p. Secretary of State for the Home Office (Case C-370/90 [1992] ECR I-4265) concerning the rights of residence of spouses and family ties. 2.     The Court’s assessment The Court will first examine the Government’s objection concerning non-exhaustion of domestic remedies. In this respect it notes, firstly, that although the applicant did not file a recourse against the Ministry of Interior’s decision of 24 February 2006 refusing the renewal of his residence permit, it appears from the file that the applicant had not been notified of this decision before he left Cyprus on 28 February 2006. The Court cannot therefore accept the Government’s arguments in this connection. However, as submitted by the Government, the applicant did not challenge the subsequent decision of the authorities refusing to allow him to enter Cyprus. The Court notes that the applicant could have filed a recourse before the Supreme Court challenging this decision and raising his complaints before that court. The Court does not find the reasons put forward by the applicant in this respect convincing. In this connection, the Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system before turning to the Court. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach (see, amongst other authorities, Akdivar and Others v.   Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996–IV, p. 1210-11, §§   65-69). Finally, the Court observes that an examination of the case as it has been submitted, does not disclose the existence of any circumstances which might have absolved the applicant from exhausting this remedy. Accordingly, the Court finds that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court unanimously Decides to discontinue the application of Article 29 § 3 of the Convention; Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President