Z.H. and R.H. v. Switzerland (no. 60119/12) [Article 8], 8 December 2015

Tuesday, December 8, 2015

The case of Z.H. and R.H. v. Switzerland (press release here) relates to two Afghan nationals who had a religious marriage ceremony in Iran in 2010, when Z.H. was 14 years old and R.H. was 18 years old. They applied for asylum in Switzerland in 2011. The Federal Office of Migration rejected their claims on the basis that Italy, which had registered asylum claims from them in the past, was responsible pursuant to the Dublin II Regulation. They were deemed not to have family life for the purposes of Article 8 ECHR or to be family members under the Dublin II Regulation, given that they had no formal evidence of their marriage, it was illegal under Afghan Civil Code, and it was contrary to Swiss public policy, as sexual intercourse with a child under 16 was a crime. Z.H. was therefore expelled to Italy after rejection of his appeal, with R.H. remaining in Switzerland due to failures by the authorities to comply with time-limits for her removal to Italy. 

They lodged an application before the ECtHR alleging that R.H.’s expulsion to Italy violated Articles 3 and 8 ECHR and there was no effective national remedy, contrary to Article 13. Once R.H. turned 17, the authorities recognised that family life subsisted between the applicants so they should benefit from a joint asylum procedure. Subsequently, their religious marriage was judicially recognised by a Swiss Court and they were both granted asylum. As such, solely the Article 8 aspect of their complaint was deemed admissible.

The Court considered that Article 8 did not impose an obligation to recognise a marriage contracted by a 14 year old, in view of Article 12 ECHR which was deferent to national law on marriage rights. At the time of Z.H.’s removal the Swiss authorities were justified in considering that the applicants were not married. In any event he returned to Switzerland after three days following which he was de facto allowed to remain in Switzerland despite his illegal presence, and was able to request a re-examination of his asylum application. Referring to its judgment in A.S. v. Switzerland the Court considered that overall a fair balance had been struck between the personal interests of the applicants in remaining together pending the outcome of R.H.’s asylum application and the public order interests of the State in controlling immigration. It therefore found no violation of Article 8. 

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Dublin Transfer
Effective remedy (right to)
Family member
Family unity (right to)