The refusal to grant a residence permit for family reintegration reasons to a foreigner who presented false information did not violate the right to respect for privacy.

JUDGMENT 

Abokar v. Sweden 06-06-2019 (no. 23270/16)

see here

SUMMARY

Refusal by the Swedish authorities to grant the applicant a residence permit for reasons of family reintegration. The applicant had provided inaccurate information to the authorities on his identity and thus had problems in proving this, while he had no connection with Sweden except his family. The Court was convinced that the authorities had achieved a fair balance between the interests of the applicant on the one hand and those of the State with regard to the effective implementation of immigration policy on the other. No infringement of Article 8 of the ECHR.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Said Mohamed Abokar, is a Somali national who was born in 1986 and lives in Italy.
The case concerns Mr Abokar is married to A, a Somali national who has held a permanent residence
permit in Sweden since 2009. He married A in religious and civil ceremonies in May 2011 and April
2013 respectively. They started their relationship in Sweden and have never lived together in
Somalia. They have two children: B, born in 2012 and C, born in 2014. In 2013 the applicant was
granted a residence permit and refugee status in Italy.

In June 2010 Mr Abokar applied for asylum in Sweden under the identity of Abdirahman Mohamed
Abukar, born on 22 February 1990. In August 2010 the Migration Agency rejected his application
and, in accordance with the Dublin Regulation, decided to transfer him to Italy where he had
previously applied for asylum and had been granted temporary residence. The Agency noted that
the applicant had applied for asylum in Finland in January 2010 as Said Mohamed Abokar, born in
1986, and that he had spent time in Sweden during 2009 without registering.

In December 2012 Mr Abokar again applied for asylum in Sweden under the name of Abdirahman
Mohamed Abukar, born on 22 February 1990. He requested that his asylum case be examined in
Sweden where his wife, who is disabled, and their child were resident. In February 2013 the Agency
rejected his application and transferred him to Italy, after confirmation from the Italian authorities
that he had been granted a residence permit in the name of Said Mohamed Abokar, born in 1986.
In April 2013 he applied for a residence permit based on his family ties to A and B, but it was
rejected. The Agency noted that he could only be granted a residence permit if his identity could be
confirmed. Appeals to the Migration Court and the Migration Court of Appeal were rejected.
Mr Abokar applied again for a residence permit based this time on his ties to A, B and C. In contrast
to his previous statement, he stated that he had not been married before. His application and
subsequent appeals were all rejected.

THE DECISION OF THE COURT

Article 8

The Court noted that Mr Abokar’s situation had amounted to him having a family life within the
meaning of Article 8 and that the decision not to grant him a residence permit in Sweden had
interfered with his rights under that provision.

On the question of whether that refusal had been necessary in a democratic society and
proportionate, within the meaning of Article 8 § 2, the Court noted that Mr Abokar had at no time
been granted lawful residence in Sweden. Moreover, his family life with his wife and children had
been created during his asylum proceedings, with the religious marriage taking place after his first
asylum request had been rejected with final effect. He had known when he had started leading a
family life that he would probably not be able to establish and maintain it in Sweden.

Furthermore, he had initially provided the Swedish authorities with incorrect information on his
identity and had thus himself contributed to his problems in proving who he was. He had also
breached immigration laws by refusing to leave the country after his first asylum application had
been rejected. Moreover, he had not had any ties to Sweden, apart from his family.

The Court also noted that Mr Abokar had been granted temporary residence in Italy and that he was
currently residing there. Since both the applicant and his wife had been granted residence permits in
member States of the European Union, the family could easily travel between Italy and Sweden and
stay for extended periods in either of those countries.

In those circumstances, the Court found that the Swedish authorities had not failed to strike a fair
balance between Mr Abokar’s right to respect for his family life and Sweden’s interest in the
effective implementation of its policy on controlling immigration, or that their assessment had been
disproportionate.

Since the application was manifestly ill-founded, the Court, unanimously, declared it inadmissible(echrcaselaw.com).


ECHRCaseLaw

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