ECtHR – Mugenzi v. France, Application No. 52701/09

The Court firstly considered that the disputed refusals to issue the visas had not amounted to “interference” in the exercise of the applicants’ right to respect for their family life. As part of the family reunification procedure, once authorisation had been granted by the Prefect, the members of the family concerned were required to obtain an entry visa to France; the issuing of such visas was not automatic, and was subject to the requirements of the maintenance of public order.

The Court stated that in view of the decision to grant refugee status to the applicant, and the subsequent recognition of the principle of family reunification, it had been of overriding importance that his visa applications be examined rapidly, attentively and with particular diligence. To that end, France had been under an obligation to institute a procedure that took into account the events which had disrupted and disturbed his family live and had led to the grant of the refugee status. The Court therefore decided to focus its examination on the quality of the procedure. The Court reiterated that family unity was an essential right for refugees and that family reunification was a fundamental element in enabling persons who had fled persecution to resume a normal life. There existed a broad consensus at the international and European level concerning the need for refugees to benefit from a more favourable family reunification procedure than that foreseen for other foreigners. Furthermore, the Court had to take account of the standards set out in the international instruments in this area and to bear in mind the recommendations made by non-governmental organisations specialising in the rights of aliens. In particular, with regard to evidence provided by the applicant, the national authorities were urged to take into consideration “other evidence” of the existence of family ties where the refugee was unable to provide official supporting documents.

The Court noted that it was a summary medical examination which proved decisive in evaluating the doubtful authenticity of the birth certificates submitted in the visa applications. It noted the difficulties encountered by the applicants in participating effectively in the procedure and especially in putting forward “other elements” of proof of a parent-child relationship and/or the children’s ages. In particular, the Court noted that the applicant had referred to his children from the start of their asylum applications and that OFPRA had certified the composition of their family. Thus, the Court observed that the applicant had been confronted with multiple difficulties over the years, in spite of the fact that he had already undergone traumatic experiences. Lastly, it had taken almost five years for Mr Mugenzi to obtain a final decision on his application; in the Court’s opinion, these time periods were excessive, given the applicants’ specific situation and what was at stake for them in the verification procedure.

The Court held that the procedure for examining the application for family reunification lacked flexibility, promptness and effectiveness. Thus, the State failed to apply a fair balance between the interest of the applicant on the one hand and its interest to control immigration on the other.

 The Court concluded that national authorities did not respect his right to family life and there has been a violation of Article 8.