ECtHR – El Ghatet v. Switzerland, Application No. 56971/10, 8 November 2016

Printer-friendly versionPrinter-friendly version
Country of Applicant: 
Egypt
Date of Decision: 
08-11-2016
Citation: 
European Court of Human Rights, El Ghatet v. Switzerland, Application No. 56971/10, 8 November 2016
Court Name: 
European Court of Human Rights (Third Section)
Headnote: 

The applicants are seeking damages on the basis of a violation of article 8 ECHR in respect of the refusal of the Swiss authorities to permit the family reunification of an Egyptian son with his father, who has Egyptian and Swiss nationality.

Facts: 

On 1 March 2006, the first applicant lodged a request for family reunification with the second applicant (his son) for whom he had custody. This request was refused in February 2007, but the applicant appealed this. This appeal was dismissed, following which the applicant lodged an appeal against the dismissal. In September 2007, that appeal was granted but the Federal Office for Migration refused to grant a permanent residence permit to the second applicant. The first applicant appealed this. The family situation of the second applicant in Egypt then changed. The appeal on the refusal to grant a permanent residence permit was dismissed. The applicant appealed this which was later dismissed by the Swiss Federal Supreme Court on the basis that the applicants had not submitted sufficient reasons for family reunification. According to the Court, the applicant’s son had closer ties to Egypt where he had been cared for by his mother and grandmother. Moreover, the father should have applied for family reunification immediately after arriving in Switzerland. The applicants claim there has therefore been a violation of article 8 ECHR.

Decision & Reasoning: 

The Court states that the object of article 8 is to protect the individual against arbitrary action by the public authorities. There must be a fair balance struck between interests of the individual and interest of the community as a whole. The Court will take into account the circumstances of each case but recognises that the State has the right to control the entry of foreign nationals into its territory. The Court considers whether or not the parents abandoned any idea of future reunion by irrevocably leaving their children in the country of origin and whether allowing the children to enter would be the most appropriate means of them developing their family life. The Court also considers that the children’s best interest is paramount in such cases. The Court reiterates that it is primarily a task for the domestic courts to asses the best interests of the child in each case. In this case, the Court deems that domestic courts failed to demonstrate that the interference was proportionate with the aim pursued.

The Court first considers that it would be unreasonable to ask the first applicant to relocate to Egypt to live together with the second applicant there, as this would entail a separation from the first applicant’s daughter. As the present case concerns the reunification of the child with his father, who lived with his mother, there is no presumption that reuniting with the father was per se in the best interest of the child. Whereas the first applicant has the right of custody pursuant to Egyptian law, the Court does not find this to be the sole decisive factor. It is further noted that the second applicant had strong social, cultural and linguistic ties to his country of origin and was cared for by both his mother and grandmother. Moreover, the second applicant had reached the age of 15 when the request for family reunification was lodged and there were no other major threats to his best interests in the country of origin.      

Based on these facts, the Court finds that no clear conclusion can be drawn whether or not the applicants’ interest in a family reunification outweighed the public interest of the respondent State in controlling the entry of foreigners into its territory. Nevertheless, the Court notes that the domestic court have merely examined the best interest of the child in a brief manner and put forward a rather summary reasoning. As such the child’s best interests have not sufficiently been placed at the center of its balancing exercise and reasoning contrary to the ECHR, the UN CRC and the Constitution of the Swiss Confederation. The Court therefore finds a violation of Article 8 ECHR.

Outcome: 

Application granted.

Observations/Comments: 

This case summary was written by Ashley E. Mount.

Other sources cited: 

ECtHR case law

I.A.A and others v UK, Application No. 25960/13

Berisha v Switzerland, Application No. 948/12

Neulinger and Shuruk v Switzerand, Application No. 41615/07

M.P.E.V and others v Switzerland, Application No. 3910/13

Tarakhel v Switzerland, Application No. 29217/12

X v Latvia, Application No. 27853/09

B v Belgium, Application No. 4320/11

Schweizerische Radio- und Fernsehgesellschaft SRG v. Switzerland, Application No. 34124/06

Authentic Language: 
English
State Party: 
Switzerland
National / Other Legislative Provisions: 
Constitution of the Swiss Confederation of 1999
article 11
Foreign Nationals Act 2005
article 126(1); article 17(2)