Respecting right to family life and controlling immigration – striking a fair balance

Mugenzi v France (European Court of Human Rights, Chamber, Application No 52701/09, 10 July 2014)
Tanda-Muzinga v France (European Court of Human Rights, Chamber, Application No 2260/10, 10 July 2014)
Senigo Longue and Others v France (European Court of Human Rights, Chamber, Application No 19113/09, 10 July 2014)

The three cases of Mugenzi v France (Application No. 52701/09), Tanda-Muzinga v France (Application No. 2260/10) and Senigo Longue and Others v France (Application No. 19113/09) in the European Court of Human Rights concerned visa applications by the applicants to bring their children who remained in Africa to France. The applicants in Mugenzi and Tanda-Muzinga were recognised refugees. The applicant in Senigo Longue was a lawful resident of France.

In each case, the French authorities refused to issue visas for the applicants’ children. The authorities alleged that there were difficulties in establishing the children’s civil registration status as the birth certificates provided in support of the visa applications were not authentic. The applicants appealed, claiming that the difficulties they encountered in the Family Reunification Procedure constituted a violation of Article 8 (right to respect for private and family life) of the European Convention of Human Rights.

Facts

Mugenzi v France

On 5 March 2003, the applicant (a Rwandan National) applied for family reunification. On 13 January 2004, he made visa applications for his five children who were in Kenya. As the maximum age a child could be brought to France under its procedures was 19, a medical examination was performed in Nairobi to ascertain the age of two of the applicant’s children. On 31 August 2005, being 19 months after the application was first brought and 9 months after the medical examination on the children was completed, the visa applications were rejected. The authorities had concluded that there was a discrepancy between the two children’s physiological ages and the ages on their birth certificates.

In October 2005, the applicant lodged an appeal against this decision. In February 2007, 15 months thereafter, the Appeals Board made a recommendation that the visas be granted, however, this was not communicated to the applicant and the visas were refused again. In April 2007, the applicant applied to the Conseil d’Etat to have this refusal quashed. In January 2008, the applicant made an urgent application to the Conseil d’Etat outlining that his children were unaccompanied and that one of his sons was suffering major psychological after-effects of the trauma he experienced in Rwanda. On 5 February 2008, it was held that there was no urgency as the children would soon be adults, and indicated that the applicant’s appeal would be heard rapidly. On 23 March 2009, nearly a year later, the Conseil d’Etat rejected the appeal.

Tanda-Muzinga v France

On 26 June 2007, the applicant submitted an application for family reunion, including visa applications for his wife and three children. In performing its checks, in February 2008 the authorities asked the applicant’s wife to provide certain documents to the French consulate in Yaounde, including travel documents which she provided on 18 March 2008. After receiving no news, the applicant unsuccessfully attempted to contact different authorities to understand why the visas had not yet been granted.

On 30 May 2008, he lodged an appeal against the implicit refusal, however, the Appeals Board did not respond. In June 2008, he made an urgent application to the Conseil d’Etat. It was only in September 2008 that the applicant learnt that the Minister of Immigration had contested the authenticity of two of his children’s birth certificates – it appeared that the details on his son’s birth certificate were those of one of his daughter’s and vice versa. It was recommended that judicial rectification of the birth certificates be sought, so the applicant’s wife brought proceedings in Yaounde. In July 2009, the Conseil d’Etat rejected his application on the basis that the fraudulent nature of even one of the birth certificates was enough to refuse all of the visa applications.

The applicant made a second request for family reunification. This was rejected on 30 April 2010, despite the authorities declaring that they had been able to authenticate his son’s birth certificate. He lodged an appeal against with the Appeals Board but received no response. On 19 November 2010, judgment re-issuing the applicant’s daughter’s birth certificate was obtained. In December 2010, the applicant’s children’s visas were finally issued, some three and a half years following the applicant’s first application.

Senigo Longue and Others v France

In May 2007, the applicant submitted a request for family reunification so that her two children who had remained in Cameroon could join her in France. The applicant claimed that she had lost her children’s birth certificates therefore these were re-issued. In June 2008, the consular authorities rejected her request stating that her children’s birth certificates were not authentic. The applicant appealed to the Appeals Board who did not reply. She then submitted an urgent application to have the consular decision set aside. In September 2008, however, the Conseil d’Etat dismissed her application on the basis that the requisite parent-child relationship had not been established.

In December 2008, she returned to Cameroon to undergo DNA tests to establish that she was indeed the mother of her children. The European Court of Human Rights communicated her application to the French Government and visas were issued for her children in June 2011, four years after the applicant’s original application.

Decision

The European Court of Human Rights accepted that the French authorities were faced with a delicate task when evaluating the authenticity of documentation but were best placed in this regard and so should be granted a level of discretion in this task. However, the extent of a state’s obligations in matters concerning family life and immigration will vary depending on the particular situation of the relevant person, the public interest and the best interests of any children involved.  The Court noted the particular difficulties each applicant encountered in their applications, namely the excessive delays and lack of reasons or explanations given throughout the process, despite the fact that they had already been through traumatic experiences.

The European Court of Human Rights declared that the French authorities had not duly considered the applicants’ specific circumstances and the Family Reunification Procedure in each case had not afforded the applicants the requisite degree of flexibility, promptness and effectiveness required to ensure compliance with Article 8 of the European Convention on Human Rights. A fair balance was not struck between the applicants’ interests and the authorities’ interests in controlling immigration, in violation of Article 8.

Commentary

In Australia, the right to respect for the family is derived from articles 23 and 17(1) of the International Covenant on Civil and Political Rights, article 5 of the Convention on the Elimination of All Forms of Racial Discrimination, article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women, article 16 of the Convention on the Rights of the Child and article 23 of the Convention on the Rights of Persons with Disabilities. One instance where the right to respect for the family must be considered is in the migration law context where circumstances may affect family unity. Family unity is an essential right and a fundamental element in enabling those who have fled persecution to resume a normal life. The European Court of Human Right’s findings in these cases serve to reinforce the importance of reuniting families, especially in the case of refugees, through a rapid and diligent process which adequately considers the specific circumstances of the applicants as well as the best interests of the child.

Alex Pieniazek is a Solicitor at King & Wood Mallesons.