ECtHR - I.M. v. Switzerland, 9 April 2019, Application No. 23887/16

After arriving in Switzerland 1993, the applicant made an application for asylum, which was subsequently rejected by the Federal Office for Migration. However, he was granted provisional admission in the State. The Federal Council lifted this provisional admission and the applicant was ordered to leave by 15 January 1999. Meanwhile, the applicant’s ex-wife, M.M., arrived in Switzerland in August 1998 with their three children. Their asylum applications were accepted. In January 1999, the applicant married a Swiss national and received a full residence permit. 

On 3 December 2003, the Criminal Court of the Canton of Basel-Stadt sentenced the applicant to 3 years prison and a 12 year suspended expulsion with a 5 year probation period for sexual coercion and rape. The Court of Appeal upheld the offence of rape and the sentencing remained the same. In February 2006, the M.M. gave birth to twins. At the time, the father was unknown. The applicant divorced his Swiss wife in May 2006.

In August 2006, the Migration Office rejected an application to extend I.M.’s residence permit on medical grounds. It was decided that the applicant’s health was not such that he was prevented from returning to Kosovo and that the measures were proportionate in respect of Article 8 ECHR. In January 2010, the removal order was extended to all Swiss territory. The applicant appealed this decision to the Federal Administrative Court. In February 2013, the Federal Administrative Court decided to suspend proceedings relating to the dismissal of the applicant.

In July 2013, he was awarded a full disability pension. In October 2014, the Federal Administrative Court resumed proceedings on the decision to remove the applicant. All appeals were rejected, and in October 2015, the Federal Administrative Court held that the applicant’s convictions were such that he was deemed to pose a serious endangerment to public order and security, and that his general state of health was not such that he couldn’t return to Kosovo where he would have access to adequate health care.

In January 2016, he made a subsequent application for appeal in which he claimed that he was the father of his ex-wife’s twins. The application was dismissed on the grounds that such a claim should have been presented much earlier in proceedings. The applicant submitted medical certificates in support of subsequent applications showing that he was suffering from, inter alia, depression and suicidal ideation and generalised pain disorder. He claimed to be entirely dependent on his family for care and would risk his condition deteriorating in the event of his expulsion. 

In February 2019, I.M. was obliged to leave Switzerland.