Last Updated on February 9, 2021 by LawEuro
Communicated on 22 January 2021
Published on 8 February 2021
THIRD SECTION
Application no. 15160/19
Bakhtiyer Urazkulovich MATMUSAYEV and Rakhatkhan Osmonzhanovna ABDURASULOVA
against Russia
lodged on 12 February 2019
STATEMENT OF FACTS
The applicants, Mr Bakhtiyer Urazkulovich Matmusayev and Ms Rakhatkhan Osmonzhanovna Abdurasulova, are nationals of Tajikistan and Russia respectively. The first applicant was born in 1971 and the second applicant in 1970. The applicants live in Perm. They are represented before the Court by Mr B. Ponosov, residing in Ocher.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The circumstances of the case
1. Background information
In 2001 the applicants, who were at the time both Tajikistani nationals, met in Perm, Russia. In 2003 they started living there together as a family. They have two daughters, born in 2006 and 2007. In 2008 the second applicant was granted Russian nationality and her two daughters also received Russian nationality. In May 2009 the applicants officially registered their marriage in Perm.
In 2013 the applicants purchased a flat in Perm and started the mortgage payments. Their daughters went to school in Perm. The second applicant worked as a bus ticket controller.
It appears that the first applicant resided in Russia based on a bilateral Tajikistani-Russian visa-free agreement authorising a visa-free stay in Russia for 90 days out of 180 days. In order to comply with the immigration regulations, he had to leave Russia for Tajikistan regularly.
In February 2018 the first applicant went to Tajikistan to have his national passport renewed. Having received a new passport valid until February 2028, he returned to Russia. According to the applicants, he did not apply for a temporary residence permit and lived in the country unlawfully.
From the end of 2018 the first applicant started working in Russia illegally as, due to the second applicant’s state of health, she had had to leave her job and the family had lost her income.
On 6 December 2018 the first applicant was detained for a breach of Article 18.8 of the Code of Administrative Offences (living in Russia without a valid residence permit or non-compliance with the established procedure for residence registration) and taken to the Bereznikovskiy District Court in Perm. On the same date, without examining his arguments concerning his family life in Russia with his wife and children, the court ordered that he be fined 2,000 roubles (RUB) (about 30 euros) with administrative removal from Russia via the controlled self-departure procedure to be executed by 24 December 2018. The removal entailed a five-year re-entry ban. It appears that the applicant did not appeal against the decision.
2. Exclusion of the first applicant and the appeals against the order
On 25 January 2019 the first applicant was detained again and taken to the Kirovskiy District Court in Perm. The court again found him guilty of a breach of Article 18.8 of the Code of Administrative Offences for his failure to comply with the decision of 6 December 2018.
During the hearing the applicant explained that he was precluded from leaving Russia by his family situation, that he had two daughters and a sick wife who were Russian nationals and were dependent on him. He was the family’s breadwinner and his departure, followed by the five-year re-entry ban, would disrupt his family life.
The court, without analysing the applicant’s arguments and referring to the repeated nature of the violation, ordered his removal from Russia (the exclusion order) and placed him in detention pending removal.
The applicant appealed against the decision to the Perm Regional Court. He stated that his wife and daughters were Russian nationals, that he was the family’s breadwinner and that the five-year re-entry ban would completely disrupt his family life.
On 7 February 2019 the Regional Court upheld the exclusion order. It stated that the applicant had already been found liable for immigration violations but had failed to take steps to regularise his immigration status in the country. As for the first applicant’s claim regarding the adverse effect of the five‑year exclusion on his family life with the second applicant and their children, the court stated “the fact of having children who are Russian nationals does not preclude the application of the sanction of administrative removal from Russia …”
On an unspecified date in February 2019 the applicant was subjected to administrative removal from Russia.
B. Relevant domestic law and practice
For relevant domestic regulations, see Guliyev and Sheina v. Russia, no. 29790/14, §§ 25-34, 17 April 2018.
COMPLAINT
The applicants complain under Article 8 of the Convention that the decision to remove the first applicant and the subsequent five-year re-entry ban was a disproportionate punishment for the administrative offence committed by him and that the domestic courts failed to examine their submissions concerning the adverse effect of the first applicant’s expulsion on their family life.
QUESTIONS TO THE PARTIES
1. Did the exclusion order issued on 25 January 2019 in respect of the first applicant constitute an interference with the applicants’ right to respect for their family life within the meaning of Article 8 of the Convention? Did the domestic courts duly examine the first applicant’s allegation of the adverse effect of the exclusion order on the applicants’ family life (see Üner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006‑XII, and Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014)?
2. The Government are requested to submit a copy of the documents pertaining to the first applicant’s administrative removal from Russia.
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