IM v. Switzerland: Applicant’s removal would constitute a violation of the right to respect family life under Article 8 of the Convention

Date: 
Tuesday, April 9, 2019

On 9 April, the European Court of Human Rights (ECtHR) delivered its judgment in the case IM v. Switzerland (23887/18), regarding the return of a Kosovan national.  

The case concerned the refusal of the Swiss Authorities to renew the residence permit of the applicant and the issuance of a removal order on the basis of a criminal conviction for a rape committed in 2003. The applicant has resided in Switzerland since 1993 and submitted that he is dependent on his adult children due to his disability. The applicant challenged the lawfulness of his removal from the state with particular regard to his rights under Articles 3 and 8 of the Convention.

With reference to its own case law, the ECtHR considered the proportionality of the decision to issue a removal order. The Court stated that it was necessary to make this assessment with consideration of both the gravity of the crime committed by the applicant and the interests of society, and the applicant’s individual rights, particularly his right to private and family life under Article 8.

In this context, the Federal Administrative Court had failed to fully assess the impact that the measure of removal would have on the applicant. It stated that the evolution of the applicant's conduct since the occurrence of the crime, the applicant’s deteriorating medical condition, and his social, cultural and family ties in the host country were not sufficiently examined in the decision.

The ECtHR ruled that the Federal Administrative Court failed to adequately assess the proportionality of the removal order and was therefore in violation of Article 8 of the Convention. It found that it was unnecessary to assess a violation of Article 3 as a result of the above conclusions. 

Based on an unofficial translation by the ELENA Weekly Legal Update.

 


This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.

 

                                                     

 

Keywords: 
Assessment of facts and circumstances
Serious non-political crime
Vulnerable person