AS TO THE ADMISSIBILITY OF
Application no. 12611/03
by Samwel MAGOKE
The European Court of Human Rights (Second Section), sitting on
14 June 2005 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 7 April 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Samwel Magoke, is a Swedish national, who was born in 1959 and lives in Märsta. He was represented before the Court by Mr P. Stadig, a lawyer practising in Stockholm. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, who is of Tanzanian origin, visited Sweden for the first time as a tourist between 22 July and 21 September 1992 in order to see his sister, living in Sweden. He then entered into a relationship with K.J., a Swedish citizen and a friend of his sister's. On 27 October 1994 he arrived in Sweden for the second time. He stayed with K.J. and the couple married on 25 February 1995.
On 10 March 1995 the applicant applied for a residence permit on the basis of the link to his wife. He stated that he had two children in Tanzania, a boy named Ernest, born on 2 July 1985, and a girl named Esther, born on 8 April 1992. Apparently, the children have different mothers. At an interview with the immigration authorities, the applicant stated that he was born and raised in the city of Shinyanga, Tanzania, and that he had three brothers and four sisters all of whom, except the sister in Sweden, lived in Tanzania. His two children were living with their paternal grandmother in Shinyanga. He intended to bring them to Sweden in the future.
On 4 July 1995 the applicant was granted a temporary residence permit, which was later renewed several times. At interviews held in connection with these renewals, the applicant stated that he kept in contact with his children in Tanzania through telephone calls and letters and that he sent them money. As to where the children were living, the information given by the applicant varied. In January 1996 he asserted that Ernest lived with his maternal grandmother and Esther with her mother and paternal grandmother. In September 1996 he stated that they both lived with their paternal grandmother. In May 1997 he claimed that Ernest lived with his maternal grandmother and Esther with her mother.
On 3 February 1997 a son, Sebastian, was born to the applicant and K.J. On 15 September 1997 the applicant was granted a permanent residence permit in Sweden on account of his family ties. He acquired Swedish citizenship on 20 September 2000.
On 5 November 1998 applications for residence permits in Sweden were submitted to the Swedish Embassy in Dar es Salaam concerning the applicant's mother, Ernest and Esther. Asked about the applications, the applicant stated, in December 1998, that he was Esther's legal guardian, although the guardianship had not been established by a court. The girl had lived with her mother until some time in 1996, when she had moved in with her paternal grandmother as her mother had married and could not take care of Esther for financial reasons. The applicant had not seen Esther since leaving Tanzania but had spoken to her on the telephone. He had, however, lived with her in 1992, 1993 and 1994. At an interview with the National Immigration Board (Statens invandrarverk) in May 1999, the applicant asserted that he had never lived with Esther's mother, nor had he lived permanently with Esther and her half-brother Ernest. However, the children had visited him and his mother for shorter periods of time while he was still in Tanzania. The applicant also stated that Esther had lived with her mother until three years earlier when her mother had married and handed over Esther to her paternal grandmother.
On 28 July 1999 the Immigration Board rejected the applications. In regard to Esther, the Board referred to the applicant's statement that she had lived with her mother until 1996 when the mother had married and handed over her to the applicant's mother. Concluding that the daughter had never been living with the applicant, the Board found that she could not be granted residence permits pursuant to chapter 2, section 4, subsection 1 (2) of the Aliens Act (Utlänningslagen, 1989:529).
The applicant appealed against the decision. He appended an affidavit from Esther's mother dated 4 August 1999 in which she stated that Esther had been living with her paternal grandmother since the age of five, as she was unemployed and therefore unable to take care of her daughter herself.
On 29 March 2000 the Aliens Appeals Board (Utlänningsnämnden) upheld the Immigration Board's decision.
On 9 February 2001 new applications for residence permits were submitted to the Swedish Embassy in Dar es Salaam on behalf of Ernest and Esther. From the documents appended it transpired that the applicant's mother had died on 18 January 2001 and that the applicant was in Tanzania for the funeral and to sort out certain issues that had emerged as a result of her death.
On 18 April 2001 the second applications were rejected by the Migration Board (Migrationsverket; previously the National Immigration Board). The Board concluded that the children had never been living with the applicant and could not therefore be granted residence permits in Sweden.
In an appeal of 3 May 2001, it was stated that Esther was only three months old when the applicant left Tanzania, which explained why the applicant had never lived with her. Ernest had lived alternately with his mother and father.
The appeal was rejected by the Aliens Appeals Board on 30 July 2001.
Third applications for residence permits for the children were lodged with the Migration Board on 27 September 2001. There it was claimed that the previous decisions of the immigration authorities had been based on a misunderstanding. The applicant had had, it was stated, very close contact with the children while he was living in Tanzania. Ernest had lived with his mother at her parents' home but the applicant had still maintained close contact with him. Esther's mother and the applicant had lived together for three months after Esther had been born until he went to Sweden for the first time. When he had returned to Tanzania he had stayed with his mother and Ernest. Esther had been living in one of the neighbouring houses with her mother.
On 18 October 2001 the Migration Board rejected the applications, finding that the new claim concerning Esther was not credible as the applicant previously had asserted that he had never cohabited with Esther's mother.
In an appeal it was submitted that the applicant had visited Tanzania between 25 December 2001 and 27 January 2002 to commemorate the first anniversary of his mother's death and that his son Sebastian had been with him on the visit. It was further stated that Ernest and Esther were at that time staying with their aunt, M.M., one of the applicant's sisters, in Dar es Salaam and that the applicant was paying for their school fees and living expenses. An additional submission of 6 August 2002 contained information that M.M. was going to move with her family to England for studies in September 2002, leaving the applicant's children in Tanzania.
On 28 August 2002 the Aliens Appeals Board rejected the appeal. Concerning Esther, the Board upheld the assessment of the Migration Board. With regard to Ernest it was noted that he had reached the age of 18 and that he had never been a member of the same household as his father.
A fourth application for a residence permit for Esther was lodged on 30 September 2002 with the Swedish Embassy in Dar es Salaam. Appended to the application was, inter alia, a copy of Esther's passports which included the names of two of her aunts, including M.M., to be contacted in the event of accident or death. It was further stated in the application that Esther was currently living with a good friend of M.M.'s, who is apparently the director of the Legal and Human Rights Centre in Dar es Salaam.
On 28 November 2002 the Migration Board rejected the fourth application, stating that, apart from the fact that Esther was no longer living with her aunt, no new circumstances had emerged.
In an appeal to the Aliens Appeals Board, Esther's counsel stated the following. During the first two or three months after her birth, the daughter had been taken care of by her mother. Thereafter, she had lived with her father – the applicant – and her paternal grandparents, until her father left for Sweden in 1994. It was therefore not correct that she had never lived with her father. That conclusion was based on incomplete information previously given by the applicant. It was further claimed that the woman who was at the time taking care of Esther had accepted this responsibility on the condition that it would be a temporary measure and had contacted the applicant to inform him that she was going to travel abroad. Esther therefore no longer had any relative or other person who could take care of her.
By a decision of 28 February 2003 the Aliens Appeals Board rejected the appeal. It noted that the information on whether the applicant and Esther had ever lived together had been changed on several occasions. In May 1999, during the investigation relating to the first application, the applicant had stated that he had never lived together with his daughter. In submissions of 3 May 2001, Esther's counsel had stated that the she was only three months old when the applicant left Tanzania and that they had thus not lived together. In further submissions of 27 September 2001, the counsel had stated that the applicant had lived with Esther's mother for three months after Esther's birth and had then left the country. Having regard to the contradictory statements, the Appeals Board concluded that it had not been shown that Esther had ever lived with the applicant.
On 19 December 2002 the applicant and K.J. divorced.
B. Relevant domestic law
The basic provisions concerning the right of aliens to enter and remain in Sweden are found in the Aliens Act. Chapter 2, section 4, subsection 1 (2) of the Act provides that a residence permit may be given to an alien who is below the age of 18 and unmarried and who is or has been living at home with a parent who is resident in Sweden or who has been granted a permit to reside in Sweden.
The applicant complained under Article 8 of the Convention about the refusal to grant his daughter Esther a residence permit in Sweden. He claimed that he had legal custody of her and that he had been given custody of her automatically when she was born. He further stated that there was nobody else who could take care of her. Moreover, he could not move to Tanzania as he had married in Sweden and had a child born there who had no ties to Tanzania. He asserted that he had provided for his daughter and paid her school fees.
The applicant complained about the refusal to grant his daughter Esther a residence permit in Sweden. He invoked Article 8 of the Convention, the relevant parts of which provide the following:
“1. Everyone has the right to respect for his ... family life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The respondent Government maintained that the application should be declared inadmissible ratione materiae or as being manifestly ill-founded. In regard to the first claim, they were of the opinion that the applicant's link with Esther was insufficient to bring the relationship within the scope of Article 8. They noted that the applicant had been continuously inconsistent as to the question whether he had ever cohabited with Esther or her mother and claimed therefore that he had not substantiated such cohabitation. Moreover, he had left Tanzania for the first time in July 1992 when Esther was three months old and for the second time in October 1994 when she was two and half years of age. Noting that he had left Tanzania voluntarily, apparently to pursue his relationship with K.J., the Government contended that his departures indicated that he had had no real wish to establish and develop “family life” with his daughter. He had not asked the Swedish authorities for permission to bring Esther and her half-brother to Sweden until November 1998. Moreover, the applicant had not visited Tanzania on any occasion between October 1994 and the beginning of 2001. Thus, Esther had not seen him in person from the age of two and a half to the age of about eight and a half. The Government submitted that it could hardly be considered possible to establish or maintain an emotional bond with such a young child by telephone calls and letters or via a third person. Furthermore, the purpose of the applicant's visit in early 2001 had not been primarily to see Esther but to attend his mother's funeral. The second visit a year later had been similarly occasioned by the one-year anniversary of his mother's death. The fact that the applicant to some extent may have provided financial support for Esther did not change the Government's position that their relationship could not be construed as “family life”.
Should the Court find that Article 8 is applicable in the present case, the Government referred to the arguments presented above and added the following observations. Nothing prevented the applicant from developing family links with Esther by visiting her in Tanzania or applying for a tourist visa for her to come and visit him in Sweden. In this connection, the Government noted that the applicant had strong links to Tanzania, as he had
been born and had lived most of his life in that country and had family there. As regards the applicant's claim that he had links to Sweden which prevented him from returning to Tanzania, the Government pointed out that the son in Sweden was not a party to the present proceedings and that that son had visited Tanzania in 2001/2002 and seemed to have been accepted by the applicant's family. Furthermore, the applicant and K.J., the mother of the son, had divorced. With respect to the interests of Esther, the Government maintained that she had lived her entire life in Tanzania and had been separated from her father for most of her life. It was therefore not at all self-evident that it would be in her best interests to be uprooted from a familiar environment and be brought to live in Sweden. Moreover, there were at least five people on the applicant's family side in Tanzania who should be able to take care of Esther. Also, it would not be unreasonable to expect Esther to move to her mother in Shinyanga, where, allegedly, she had lived for most of her life. The applicant's claim that the mother's present husband refused to take care of Esther had not been substantiated. Esther also seemed to have had a much stronger connection to her mother than to her father.
The applicant maintained that he had had the intention to bring his children to Sweden as soon as it was practically possible. He claimed that there had been no possibility to ask for a permit for them to join him in Sweden until he had received a residence permit in that country. He had been granted such a permit on 15 September 1997 and had applied for a permit for his children already on 5 November the following year. Article 8 of the Convention protected the right for a father to live together with his children even if they had not lived together before. There was allegedly no reason to make any difference if the parents had been married or not. Due to the fact that Esther is the daughter of the applicant, it was of no great importance whether they had lived together permanently or not or whether there were other relatives with whom she could stay. Moreover, the applicant had the right to live with both Esther and his son with K.J. and could not force his ex-wife to move to Tanzania with their son. Esther's mother had repeatedly stated that she was unable to take care of Esther. Allegedly, the mother's husband refused to accept it. Furthermore, the mother was living in Shinyanga, about 700 km from Dar es Salaam where Esther lived.
The Court first considers that it need not determine whether the applicant's relationship with his daughter, in the circumstances, amounts to “family life” within the meaning of Article 8 of the Convention as, in any event, it finds that the application is manifestly ill-founded. The following reasoning will thus be based on the assumption that the relationship in question comes within the scope of Article 8.
The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective “respect” for family life. However, the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Gül v. Switzerland, judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, p. 174, § 38; and Ahmut v. the Netherlands, judgment of 28 November 1996, Reports 1996-VI, p. 2031, § 63).
The present case concerns not only family life but also immigration, and the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. As a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory (see Gül v. Switzerland, loc. cit., p. 174, § 38, and Ahmut v. the Netherlands, loc. cit., p. 2033, § 67).
The instant case hinges on the question whether the Swedish authorities were under a duty to allow the applicant's minor child to settle with him in Sweden, thus enabling the applicant to maintain and develop family life with his child on its territory. For this reason the Court will view the case as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation.
Where immigration is concerned, Article 8 of the Convention cannot be considered to impose on a State a general obligation to authorise family reunion in its territory. In order to establish the scope of the respondent State's obligations, the facts of the case must be considered.
The Court notes in this context, however, that due consideration should be given to cases where a parent has achieved settled status in a country and wants to be reunited with his or her children who, for the time being, have been left behind in their country of origin, and that it may be unreasonable to force the parent to choose between giving up the position which he or she has acquired in the country of settlement or to renounce the mutual enjoyment by parent and child of each other's company which constitutes a fundamental element of family life (see, inter alia, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 68). The issue must therefore be examined not only from the point of view of immigration and residence, but also with regard to the mutual interests of the applicant and his daughter.
The Court notes that in the present case the fact of the applicant living apart from his daughter was the result of his voluntary emigration to Sweden. He left for Sweden for the first time in July 1992 for a two-month visit when Esther was only three months old. He came to Sweden again in October 1994, when Esther was two and a half years old, has stayed there ever since and has acquired Swedish citizenship. According to the information given by the applicant, he has seen his daughter only twice since October 1994, when he visited Tanzania in early 2001 and in December 2001/January 2002. It should be noted that, apparently, these visits were not primarily made in order to visit the daughter but came about as a result of his mother's death.
During the domestic proceedings the applicant has given contradictory information as to where and with whom Esther has been living. However, from several of his statements it may be reasonable to conclude that Esther's mother, living in Shinyanga, was her main carer until some time in 1996 or 1997 when she moved to her paternal grandmother in the same town. The affidavit given by Esther's mother on 4 August 1999 lends support to this conclusion. After the grandmother's death in January 2001, Esther was taken care of by one of the applicant's sisters in Dar es Salaam. Following that sister's move to England in September 2002, Esther moved in with a friend of the sister in Dar es Salaam.
As regards the question whether the applicant has ever lived together with his daughter, the information given by him at various stages of the proceedings is very inconclusive. In December 1998 he claimed that he had lived with Esther in 1992-1994. In May 1999 he stated that he had not lived permanently with her, nor had he ever lived with her mother. In May 2001 he maintained that he had never lived with Esther. In September 2001 he asserted that he had had very close contact with his children while he was living in Tanzania: he had lived with Esther's mother for three months after Esther had been born and when he had returned from Sweden in September 1992 Esther had been living with her mother in a neighbouring house. Finally, in an appeal to the Aliens Appeals Board in late 2002 or early 2003, the applicant claimed that Esther had been living with him until he left for Sweden in October 1994. Judging from these conflicting statements, the Court cannot but find that, although he might have seen Esther frequently while he was living in Tanzania, the applicant has failed to substantiate that he has ever shared a home with her.
The Court further notes that, while the applicant already in March 1995 stated to the Swedish authorities that he intended to bring his children to Sweden in the future, a request to this effect was not made until November 1998, more than four years after his final arrival in the country. The applicant has stated before the Court that there had been no possibility to ask for a permit to bring Esther to Sweden until he had received a residence permit in the country. The Court notes, however, that he was granted a permanent residence permit in Sweden already in September 1997.
It is true that the applicant has stated that he has kept in contact with his daughter through telephone calls and letters and that he has been paying for her school fees and living expenses. The Court sees no reason to doubt this information. In his submissions to the Court, the applicant has also stated that Esther's mother cannot take care of her, as the mother's husband has refused to accept this arrangement. No evidence has been submitted in this regard, however, and it should be noted that the applicant, in November 1998, stated to the Swedish authorities that the mother was unable to take care of Esther for financial reasons. This information is consistent with the affidavit given by the mother on 4 August 1999. The Court does not find it unreasonable to expect that Esther be taken care of by her own mother, especially if the applicant continues to provide financial support for her.
Furthermore, it follows from information given by the applicant that he has several siblings in Tanzania. Thus, there appears to be other people than the mother who could provide care for Esther in Tanzania.
Turning to the interests of Esther, the Court notes that she was apparently – like the applicant – born in the town of Shinyanga and lived there until January 2001, when she was eight and a half years old. Thus, while she appears to be presently living in Dar es Salaam, a possible move to Shinyanga, 700 km away from Dar es Salaam, cannot be considered a great difficulty. Moreover, Esther has lived all her life in Tanzania and has most of her relatives in that country. She is rooted in that country and has apparently never visited Sweden.
The Court is of the opinion that the refusal by the Swedish authorities to allow entry and residence to Esther does not prevent the applicant from maintaining the degree of family life he had with his daughter prior to his arrival in Sweden. He could, for instance, apply for a tourist visa for her to come and visit him. Although the applicant would now prefer to maintain and intensify their family life in Sweden, Article 8, as noted above, does not guarantee a right as such to choose the most suitable place to develop family life.
Having regard to the above circumstances, the Court finds that it cannot be said that the Swedish State failed to strike a fair balance between the applicant's interests on the one hand and its own interest in controlling immigration on the other. There is therefore no appearance of a violation of the applicant's right to respect for his family life within the meaning of Article 8 of the Convention.
It follows that the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. Dollé J.-P.
MAGOKE v. SWEDEN DECISION
MAGOKE v. SWEDEN DECISION