Judgement 13258/18, 15500/18, 57303/18 and 9078/20

Applicant name B.F. AND OTHERS
Applicant typeNatural person (Immigrant)
Number of applicants 5
Application no. 13258/18, 15500/18, 57303/18 and 9078/20
Date 04/07/2023
Judges Pere Pastor Vilanova, President,
 Jolien Schukking,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Andreas Zünd
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Positive obligation (economic well-being of the country)
Type of privacy Relational privacy
KeywordsLimitation family reunification; no fair balance struck
Facts of the caseThis is a combined judgement of the Court on four similar applications, three of which were brought by a single applicant, and one by two applicants. All applicants reside in Switzerland and were recognised as refugees but granted provisional admission rather than asylum. They therefore did not have a legal entitlement to family reunification; family reunification was discretionary and subject to certain cumulative conditions being met.
Analysis1. The Court stresses that the case revolves around a potential positive obligation of the state under Article 8 of ECHR, which means that the ECtHR’s assessment will depend on whether the Swiss authorities, when refusing the requests for family reunification because the families, if reunited in Switzerland, would not be financially independent, struck a fair balance, subject to their margin of appreciation, between the competing interests of the individuals and of the community as a whole, which was linked to the economic well-being of the country.
2. As to the margin of appreciation, the Court considers, on the one hand, that Member States enjoy a certain margin of appreciation in relation to requiring non-reliance on social assistance before granting family reunification in the case of refugees who have left their countries of origin without being forced to flee persecution and whose grounds for refugee status have arisen following their departure and as a result of their own actions. On the other hand, however, it points out that this margin is considerably more narrow than the margin afforded to countries in relation to the introduction of waiting periods for family reunification when that is requested by persons who have not been granted refugee status, but rather subsidiary or temporary protection status.
3. As to their individual cases, the ECtHR discusses the duration of the applicants’ stay, their status in and ties to Switzerland, the time when the applicants’ family life was created, the possibility to enjoy family life elsewhere, the best interests of the children and the requirement of non-reliance on social assistance. On the basis of a detailed and case by case analysis, the Court finds that in three of the four cases, a violation of Article 8 ECHR had taken place.
4. Three of the four applicants also complained about the duration of the family reunification proceedings, one of which was the case in which the Court found no violation of Article 8 ECHR under the previous complaint. Only with regard to this application does the Court assesses this second matter, under Article 8 ECHR’s implicit procedural requirements. On this point, the Court finds that while the overall duration of the family reunification proceedings does as such raise concerns as to the compliance with the requirement to process family reunification requests speedily, having regard to the circumstances of the case and to the margin of appreciation allowed to the State, does not find a violation on this point.
Other Article violation?No need to examine separately the complaints under Article 14 read in conjunction with Article 8 
Damage awarded a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State (Swiss francs), at the rate applicable at the date of settlement:
(i) EUR 5,125 (five thousand one hundred and twenty-five euros) to each of the applicants in application no. 13258/18, and EUR 15,375 (fifteen thousand three hundred and seventy-five euros) to the applicant in application no. 15500/18, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 15,325 (fifteen thousand three hundred and twenty-five euros) to the applicants jointly in application no. 13258/18, and EUR 10,788 (ten thousand seven hundred and eighty-eight euros) to the applicant in application no. 15500/18, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
Documents Judgment