Separation of father from wife and children violates right to family life

M.P.E.V v Switzerland (European Court of Human Rights, Chamber, Application No 3910/13, 8 July 2014)

The European Court of Human Rights found that Switzerland’s intended expulsion of an Ecuadorian man who had unsuccessfully claimed asylum would violate his, his second daughter’s and his wife’s right to a family under article 8 of the European Convention on Human Rights, despite the man’s previous criminal convictions and his separation from his wife.

Facts

The first applicant (the father) and the second applicant (the mother) were married, and had fled Ecuador and sought asylum in Switzerland in 2002. They had separated in 2009 but were not divorced. 

The father had a history of mental illness and had attempted suicide multiple times. He had been convicted of four offences from 2002-2009, mainly relating to theft. The most serious of these offences attracted a 9 month suspended sentence.

The fourth applicant (the youngest daughter) was the 14 year old daughter of the first and second applicant. She had lived in Switzerland since age 2. Her primary carer was the mother, but the father remained in regular contact and had extended access to her.

The third applicant (the adult daughter) was also the child of the first and second applicants.  She was granted Swiss citizenship in 2012. Her child was sometimes cared for by the father.

The mother and youngest daughter were granted temporary residence by the Swiss Federal Administrative Court (on appeal from the Refugee Office) on the basis that the youngest daughter had fully integrated into Swiss society and it would be an “uprooting of excessive rigidity” to remove her and her mother to Ecuador.

The father was denied temporary residence because of his criminal record. The Federal Administrative Court found that he faced no substantial risk in Ecuador and he would have access to sufficient mental health facilities in Ecuador. Importantly the Federal Administrative Court’s found that the family unit had ceased to exist after the separation of the father and mother, so each application for asylum could be assessed separately.

The applicants lodged an application against Switzerland with the Court, alleging violation of their right to a family under article 8 of the Convention.

Decision

Applicability of article 8

Article 8 of the Convention relevantly provides that:

• Everyone has the right to respect for his … family life…
• 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 … for the prevention of disorder or crime …

The Court first addressed whether the relevant relationships counted as “family life”. The Court affirmed that “family life” requires the factual existence of close personal ties, and includes the “relationship arising from a lawful and genuine marriage.” A child born of a marital union is ipso jure part of the marital relationship, and this relationship amounts to “family life” until the child turns 18, save in exceptional circumstances.

In this case, the Court found that the relationship between the father and the youngest daughter, and between the father and the mother, amounted to “family life”. There remained a sufficient relationship and connection between these people. However, as the adult daughter was no longer a child, was independent of her parents and had children of her own, her relationship with the father was not “family life” for the purposes of article 8.

Whether article 8 was violated

The Court found this question was one of proportionality, balancing the right to a family with a State’s right to maintain public order by expelling aliens convicted of criminal offences.  Interference with article 8 rights must be “justified by a pressing social need, and … proportionate to the legitimate aim pursued.”

The State must balance the nature of criminal offences and the time elapsed since those offences, with the difficulties that will be faced by the applicants due to the expulsion. However, citing article 3 of the Convention on the Rights of the Child (CROC), the Court found that the best interests and well-being of the child are of paramount importance where children are involved. 

The Court criticised the failure by the Federal Administrative Court to explicitly refer to the best interests of the child in reaching its decision. The Court was not convinced that sufficient weight had been attached to the interests of the youngest daughter, whose contact with the father would be “drastically diminished” if he was forced to return to Ecuador.

Additionally, the father’s mental health was considered likely to suffer if he was expelled. His contact with his daughter was considered of great benefit to his mental health.

The Court considered that the criminal history of the father was minor and that he had not been convicted of any offence since 2009.

The Court therefore found that the Swiss authorities had failed to give due consideration to the father and youngest daughter’s mutual interest in remaining in close personal contact. Therefore, Switzerland had overstepped its margin of appreciation in relation to article 8.

Commentary

This case is notable for the paramount importance accorded to considerations of the rights of the child in this decision and confirms that a state’s prerogative to manage migration does not automatically trump basic human rights principles.

Australia has ratified CROC, and recognised a right to a family through article 17 of the ICCPR. However, Australia’s mandatory and indefinite detention of children, including in offshore centres, has recently attracted criticism for failing to give adequate consideration to the rights of the child. Recent reports that the 157 Tamil asylum seekers held at sea included 50 children has again brought the issue of Australia’s respect for the rights of the child into focus.

The decision is available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-145348#{"itemid":["001-145348"]}

Alex Maschmedt is a Law Graduate at King & Wood Mallesons.