Last Updated on May 11, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 30764/13
Akhmed Shakh RAZIGDAD
against Russia
The European Court of Human Rights (Third Section), sitting on 20 November 2018 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 16 April 2013,
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 FACTS
1. The applicant, Mr Akhmed Shakh Razigdad, is an Afghan national, who was born in 1967 and lives in Moscow. He was represented before the Court by Mr I.G. Vasilyev and Ms S. Gannushkina, lawyers practising in Moscow.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case
1. Background information
4. The applicant was born in 1967 and lives in Moscow. Between 1986 and 1992 the applicant was an officer of the Afghan security service, KhAD/WAD (Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati). Between 1992 and 1996 he worked as a market vendor in Mazar‑e-Sharif.
5. In 1996 the applicant had to leave Afghanistan owing to persecution by local militants as a result of his earlier work for the security service.
6. In October 1996 the applicant arrived in Russia on a visa. After the visa expired, he remained in the country illegally.
7. On 8 September 1999 the applicant applied for asylum in Russia. On 13 September 1999 the Federal Migration Service (“the FMS”) rejected his request. The applicant did not appeal against that decision.
8. On 25 November 1999 the applicant married Ms A.G., a Russian national. Between 1999 and 2002 the couple had two sons and a daughter, all of whom were Russian nationals.
9. In December 2006 the applicant again applied to the FMS, for temporary asylum. On 19 March 2007 the Moscow FMS rejected his application as unsubstantiated. The applicant did not appeal.
10. In February 2007 the applicant renewed his Afghan passport at the embassy of Afghanistan in Moscow until February 2012.
11. In April 2010 the applicant applied for temporary asylum in Russia for the third time. On 21 July 2010 the Moscow FMS again rejected his application as unsubstantiated.
12. The applicant appealed against the decision of 21 July 2010 to the FMS of the Russian Federation, which on 14 December 2010 granted the appeal and ordered a fresh examination of the case.
13. On 20 July 2011 the Moscow FMS re-examined the third application for temporary asylum and again rejected it.
2. The applicant’s appeal against the decision of 20 July 2011
14. On 27 January 2012 the applicant lodged an appeal against the decision of 20 July 2011 with the Preobrazhenskiy District Court (“the District Court”) in Moscow. The applicant stated that as he had no valid visa, he was not able to apply for a residence permit while in Russia, to allow him to reside with his family and enjoy the right to respect for family life. He could not return to Afghanistan to apply for a new Russian visa from there owing to the risk of ill‑treatment by local militants.
15. On 27 March 2012 the District Court dismissed the applicant’s appeal. On 12 November 2012 the Moscow City Court (“the City Court”) upheld that decision on a further appeal.
16. On 17 December 2012 the City Court dismissed an application by the applicant for leave to lodge a cassation appeal and on 22 March 2013 the Supreme Court of the Russian Federation upheld that decision.
17. The applicant provided no information to the Court on subsequent developments concerning his attempts to regularise his immigration status in Russia.
3. Information submitted by the Government on further developments
18. On 20 January 2015 the applicant lodged another (the fourth) application for temporary asylum with the Moscow FMS. On 20 April 2015 his request was rejected. The applicant did not appeal.
19. On 10 August 2015 the applicant lodged a fifth request for temporary asylum, referring to his long stay in Russia, and to his wife and children, all of whom were Russian nationals.
20. On 10 November 2015 the Moscow FMS granted the applicant temporary asylum on humanitarian grounds for a period of one year.
21. On 11 October 2016 the applicant requested an extension of the temporary asylum for another year. On 7 November 2016 the Moscow FMS rejected to extend the temporary asylum having stated that the applicant “could leave Russia in order to enter the country of his nationality and then legalise his status here [in Russia]”. The applicant did not appeal.
22. According to the Government, no decision on the applicant’s deportation or expulsion had been taken; he continued to reside in Russia.
B. Relevant domestic law
1. Grounds for a foreigner’s stay in Russia
(a) Visa, temporary residence and residence permits
23. The Foreigners Act (Federal Law no. 115-FZ of 25 July 2002) provides that a foreigner can be temporarily present on Russian territory for a period specified in a visa or, for foreign nationals not required to obtain a visa, for ninety days unless otherwise provided for by the Act (section 5).
24. After the termination of a residence permit or a temporary residence permit, the foreigner concerned must leave Russia within fifteen days; failure to do so will lead to deportation (section 31 of the Act).
25. A decision to deport should be taken by a chief officer of the local migration authority (paragraph 6 of the Instruction issued by Order no. 240 of 12 October 2009 by the Federal Migration Authority).
(b) Temporary asylum
26. Section 12 of the Refugees Act of Russia (Law no. 4258-I of 19 February 1993) (“the Refugees Act”) provides that temporary asylum may be granted where (i) the foreigner has grounds for acquiring refugee status but only requests the opportunity to remain in Russia for a set period of time; or (ii) the foreigner has no grounds for acquiring refugee status but should not be expelled from Russia for “humanitarian reasons”. Having received temporary asylum, the person may not be returned against his will to the country of nationality or the country of habitual residence.
27. The Rules on Temporary Asylum Status (“the Rules”) enacted by the Government of the Russian Federation in accordance with the Refugees Act (decree no. 274 of 9 April 2004) provide that temporary asylum may be granted for a period of up to one year and may be renewed annually at the request of the person seeking temporary asylum, who should also be able to provide reasons for such renewal (section 12(1) of the Rules). The request for renewal should be submitted no later than one month prior to the expiry of the person’s current temporary asylum status (section 12(2) of the Rules).
(c) Appeal against an official decision
28. Until 15 September 2015 under Article 254 § 1 and Article 255 of the Russian Code of Civil Procedure, a person could bring civil judicial proceedings against an official decision which, in his or her opinion, had an adverse effect on his rights and freedoms.
29. As of 15 September 2015 under Chapter 22 of the Russian Code of Administrative Procedure, a person can bring admintirative judicial proceedings against an official decision which, in his or her opinion, has an adverse effect on his rights and freedoms.
COMPLAINTS
30. The applicant complained under Article 8 of the Convention that the refusal of the Russian authorities to grant him temporary asylum had subjected him to the risk of deportation to Afghanistan which would adversely affect his right to respect for his private and family life. Under Article 13 of the Convention, he complained that he had had no effective domestic remedies against the violations alleged.
THE LAW
31. The applicant complained that the refusal of the Russian authorities to grant him temporary asylum had subjected him to the risk of deportation to Afghanistan, which would adversely affect his right to respect for his private and family life. He relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.”
A. The Government’s submissions
32. The Government contested that argument. They stressed that the applicant had failed to legalise his status in Russia despite his residence in the country for a period of almost twenty years and his long-term marriage to a Russian national, who had been aware of his precarious immigration status from the beginning of their relationship. Having requested temporary asylum in Russia on several occasions, the applicant had appealed against only one rejection of his applications, that of 20 July 2011. Most importantly, the applicant had failed to appeal against the authorities’ refusal to extend his temporary asylum of 7 November 2016. Lastly, the domestic authorities had never issued a deportation order in respect of the applicant, who continued to reside in Russia.
B. The applicant’s submissions
33. The applicant commented neither on the Government’s non‑exhaustion plea concerning the decision of 7 November 2016 nor on their submission on his continuing, unimpeded stay in Russia. He submitted that the Court should examine his application as it stood at the time that it was lodged, that is only in respect of the proceedings concerning the decision of 20 July 2011.
C. The Court’s assessment
34. At the outset, the Court notes that the applicant did not inform the Court of developments in his case which had occurred after lodging the application at the Court, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, which provides as follows:
“7. Applicants shall keep the Court informed of … all circumstances relevant to the application.”
35. It was only in his reply to the Government’s observations on the admissibility and merits of the case submitted in August 2017 that the applicant acknowledged the developments, which had occurred after he had lodged his application in 2013 and of which he had failed to inform the Court. He then stressed that his application concerned only the proceedings relating to the decision of 20 July 2011.
36. The Courttakes note of the objection of non-exhaustion of domestic remedies raised by the Government (see paragraph 32 above). In the circumstances of the present case it is not necessary to examine this objection, the present application being in any case inadmissible, for the following reasons.
37. The Court notes that the Russian authorities took no steps towards the applicant’s removal during the period between September 1999 (when his first request for temporary asylum was rejected) and August 2017 (the date of submission of the applicant’s observations to the Court). Nothing had prevented the authorities from doing so, given that throughout the entire period the applicant’s presence in the country was known to them, along with his failure to legalise his immigration status.
38. The Court further notes that no removal decision has been taken in respect of the applicant. The Court is aware that each rejection of his applications for temporary asylum, in the absence of any other legitimate grounds authorising his stay in the country, required him to leave Russia (see paragraphs 7, 9, 11, 18 and 21 above). Nevertheless, the Court considers that those rejections did not necessarily entail that the applicant’s removal was inevitable and impending. Under Russian law, a specific decision requiring a foreigner’s removal from the country must be taken before that foreigner can be removed. for instance, an extradition order, a decision imposing the penalty of administrative removal for an administrative offence, or a decision declaring his presence in Russia undesirable and ordering his deportation (see, by way of comparison, A.L. (X.W.) v. Russia, no. 44095/14, § 65, 29 October 2015), and any such decision can be challenged (see paragraphs 28-29 above).
39. The Court considers that in the circumstances of the present case, given the absence of such a decision, the applicant’s arguments concerning potential adverse effects on his family life arising from his possible deportation from Russia remain speculative (see, mutatis mutandis, A.R. v. Russia (dec.), no. 25923/15, 10 May 2016).
40. In view of the above, the applicant’s complaint under Article 8 of theConvention is manifestly ill‑founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
41. The above findings do not prevent the applicant from lodging a new application before the Court and making use of the available procedures in respect of any new circumstances, in compliance with the requirements of Articles 34 and 35 of the Convention (see Dobrov v. Ukraine (dec.), no. 42409/09, 14 June 2011, and Bakoyev v. Russia, no. 30225/11, § 100, 5 February 2013).
42. As regards the applicant’s Article 13 complaint, the Court considers that it is unsubstantiated and should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 13 December 2018.
Fatoş Aracı Alena Poláčková
Deputy Registrar President
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