Court finds no violation of the Convention for Palestinian national whose continued residence in Ukraine remains uncertain

JUDGMENT

Abuhmaid v. Ukraine (application no. 31183/13) 12.01.2017

see here

SUMMARY

The case concerned Mr Abuhmaid’s right to reside in Ukraine. Having been resident in Ukraine for over twenty years on the basis of temporary residence permits, in 2010 Mr Abuhmaid began to
encounter a series of difficulties with the Ukrainian authorities in relation to his residence. He has so far been unsuccessful in his various attempts to regularise his residence in Ukraine, including
applying for asylum and seeking to immigrate. He claimed that the continued uncertainty of his right to reside in Ukraine and his potential future expulsion from the country violated his right to a private and family life.

The Court found in particular that since his new application for asylum is still being considered, Mr Abuhmaid does not face any real or imminent risk of expulsion from Ukraine. Regarding Mr Abuhmaid’s complaints that the uncertainty of his stay and status in Ukraine is interfering with his private life, the Court found that Ukraine had complied with its positive obligation to ensure an effective and accessible procedure for him to have these issues determined.

USE 

There is no violation of the right to family life if the person is to be given asylum or permanent residence permit.

PROVISIONS

Article 8

Article 13

PRINCIPAL FACTS

The applicant, Mr Hesham A.S. Abuhmaid, is a Palestinian national who was born in 1970 and currently lives in Kyiv (Ukraine).

Mr Abuhmaid came to Ukraine in 1993 to study. Until November 2009, he was resident there on the basis of temporary residence permits, which were regularly extended by the Ukrainian police.
Between March and April 2010, Mr Abuhmaid was convicted of three separate administrative offences for violating migration regulations. On 16 September 2010, he was on his way to apply for
an extension of his residence permit when he was stopped by police officers from the migration unit of the Solomyanskyy Police Department in Kyiv. The officers told him that a deportation order had been made against him and seized his documents.

The police had decided on 17 March 2010 that Mr Abuhmaid should be deported and initiated court proceedings to have him forcibly removed. The case was heard on 18 May 2010 by the Kyiv Administrative Court, in the absence of the parties. Mr Abuhmaid alleges that he did not become aware of the decision of 18 May 2010 until 25 November 2011. On 29 November 2011, he appealed the decision. Mr Abuhmaid complained, in particular, that the first-instance court had failed to examine all the facts relevant to the case and to hear him. On 14 November 2012, the appeal was rejected by the Kyiv Administrative Court of Appeal.

On 6 December 2012, Mr Abuhmaid lodged a cassation appeal with the Higher Administrative Court. The Higher Administrative Court overturned the lower courts’ decisions in October 2013 on the basis that they had failed to examine whether there were grounds under Ukrainian law preventing Mr Abuhmaid’s expulsion. The court also noted that the lower courts had not given due consideration to Mr Abuhmaid’s private and family life interests in Ukraine. It thus sent the case to the firstinstance court for re-examination. After this re-examination, which resulted in a decision ordering Mr Abuhmaid’s forcible removal from Ukraine, the case was again sent back to first instance by the Higher Administrative Court, for the same reasons as in its earlier decision. The proceedings eventually came to an end when the Desnyanskyy District Court refused the application for Mr Abuhmaid’s forcible expulsion. The court held that his expulsion would be in violation of Article 8, having particular regard to the fact that Mr Abuhmaid is married to a Ukrainian national. The court also took the view that there were grounds for Mr Abuhmaid to be given the status of refugee or person in need of complementary protection. This decision was not appealed and became final.

Mr Abuhmaid has also been engaged in proceedings relating to his claim for asylum. His first application was rejected by a decision of the State Migration Service of 17 May 2012, which he appealed to the Higher Administrative Court, without success. In November 2014, Mr Abuhmaid lodged a new asylum application, which the Kyiv Department of the State Migration Service refused to examine. This failure was overturned by the Kyiv Administrative Court, which found that the State Migration Service had failed to thoroughly examine the matter and ordered the State Migration Service to reconsider Mr Abuhmaid’s new application. The reconsideration of Mr Abuhmaid’s new asylum application is currently pending. Under the relevant domestic law, this gives Mr Abuhmaid lawful grounds to stay in Ukraine until a decision on his application is reached.

THE DECISION OF THE COURT 

Articles 8 (right to private and family life) and 13 (right to an effective remedy)

Since Mr Abuhmaid’s new asylum application is still under consideration and he is lawfully permitted to remain in Ukraine pending the outcome, the Court found that he does not face any real or imminent risk of expulsion from Ukraine. The Court therefore declared inadmissible Mr Abuhmaid’s complaint concerning his possible removal from Ukraine.

Regarding Mr Abuhmaid’s complaints about the uncertainty of his stay in Ukraine and his inability to regularise his status in that country, the Court found no violation of Article 13 in conjunction with Article 8 of the Convention. The Court had regard to the fact that Mr Abuhmaid’s private life interests had been taken into account by the Ukrainian authorities when examining his case, and also that Mr Abuhmaid can still have access to different domestic procedures which might result in the regularisation of his stay and status. The State therefore fulfilled its positive obligation to provide an effective and accessible procedure enabling Mr Abuhmaid to have his further stay and status in Ukraine determined with due regard to his private life interests.

Article 1 of Protocol No. 7

The Court found that, although there may have been certain shortcomings in how the courts dealt with Mr Abuhmaid’s forcible removal case, eventually those shortcomings were remedied in the
course of the proceedings before the Higher Administrative Court and in the proceedings culminating in the decision of 29 October 2014. Mr Abuhmaid was given ample opportunity to oppose his forcible removal from Ukraine effectively. This complaint was therefore rejected.

Separate opinion

Judge Vehabović expressed a partly concurring opinion. This opinion is annexed to the judgment


ECHRCaseLaw

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