Last Updated on May 25, 2019 by LawEuro
Communicated on 5 September 2018
THIRD SECTION
Application no. 296/18
Abdulfoiz Boypulatovich RAKHMONOV and Dilshoda Fazylboyevna RAKHMONOVA
against Russia
lodged on 14 December 2017
STATEMENT OF FACTS
The applicants, Mr Abdulfoiz Boypulatovich Rakhmonov and Ms Dilshoda Fazylboyevna Rakhmonova, are Uzbek and Russian nationals respectively. The first applicant was born in 1991 and the second applicant in 1993. The applicants are husband and wife. The first applicant prior to his administrative removal from Russia resided with the second applicant in Perm. The second applicant continues to reside there.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The decision on the first applicant’s removal from Russia
1. Background information
On an unspecified date prior to December 2013 the first applicant arrived in Russia where he met the second applicant, who was a Russian national.
On 3 December 2013 the applicants registered their marriage in Perm. In November 2014 the applicants had their daughter Ms As.R. and in December 2016 their son Mr Az.R. The applicants’ children are Russian nationals.
On 30 May 2014 the first applicant, as a spouse of a Russian national, obtained Russian temporary residence permit valid until 30 May 2017.
Prior to the expiration of the residence permit on 30 May 2017 according to the applicable immigration regulations the first applicant left Russia and on 31 May 2017 he re-entered the country. His stay was authorised for 90 days that is until 29 August 2017. On the same date, the first applicant officially registered his residence as a foreign national in Perm and continued to reside with the second applicant and their children. At the time they lived in a rented accommodation as their flat was under renovation.
On 28 August 2017 the first applicant lodged request for another three‑year temporary permit with the Perm Region Migration Authority (the MA). For the period of the examination of his request, the first applicant’s stay was extended until 28 October 2017.
On 26 October 2017 the first applicant went to the central MA office in Perm to enquire about the outcome of his request. There he was told that he would receive the information on 2 November 2017 from another office of the MA, in the Kirov district of Perm.
On 28 October 2017 the police visited the applicants’ home and confirmed that the first applicant resided there. The police did not comment on the expiration of the first applicant’s allowed term of stay in Russia.
On 2 November 2017 the first applicant went to the MA office in the Kirov district of Perm to obtain the information on the outcome of his request for the residence permit and request to extend the time-frame of his stay in Russia. According to the applicant, his request for extension of the stay was refused and he was told to wait for the decision on his request for the residence permit.
On 16 November 2017 the first applicant again went to the MA office in the Kirov district of Perm to obtain the information on the outcome of his request. No information was given to him.
On 17 November 2017 the first applicant was invited to the police where he was informed of the refusal to grant him the residence permit. At the same time, the police drew the record of a violation of Article 18 § 1.1 of the Code of Administrative Offences (“the COA”) for failing to comply with residence regulations for foreigners in Russia and overstaying the time allowed. According to the applicant, he signed the record without noticing that it contained the date of 28 October 2017 and not the actual date of 17 November 2017.
According to the applicant, his request for temporary residence permit was rejected as he had allegedly provided untruthful information concerning the place of his factual residence in Russia.
2. Proceedings concerning the first applicant’s administrative removal
On 17 November 2017 the police took the first applicant to the Kirov District Court in Perm (“the District Court”). At the hearing he fully admitted his guilt and stated that his wife, the second applicant, and their two minor children were Russian nationals and that his removal from Russia would disrupt his family life.
On the same date, 17 November 2017, the District Court found the first applicant guilty of the above-mentioned provision of the COA, fined him 2,000 Russian roubles (about 30 euros) and ordered his administrative removal from Russia, entailing a five-year re-entry ban. As for the applicant’s allegations of the disruptive effect of the removal on his family life, the court stated as follows:
“… at the hearing Mr Rakhmonov admitted his guilt in the violation of the administrative regulation and explained that since 29 October 2017 he was residing in Russia, working unofficially, that he had not had opportunity to leave the Russian Federation as his daughter was very sick and that he had no legitimate grounds for his stay in Russia. At present, he has ticket for 25 November 2017 to leave Russia for Tashkent, Uzbekistan. He has two minor children [here] …
….imposing on Mr Rakhmonov the sanction, the court takes into account the nature of the administrative violation, Mr Rakhmonov’s personality, his property status, mitigating and aggravating circumstances.
The court finds that the circumstances mitigating Mr Rakhmonov’s administrative liability, according to Article 4.2 of the Code of Administrative Offences, are his admission of guilt, his having two dependent children and wife, who is on maternity leave.
The court does not find circumstances aggravating Mr Rakhmonov’s administrative liability, according to Article 4.3 of the Code of Administrative Offences.
Taking all of those circumstances into account, the court finds it necessary to sentence Mr Rakhmonov to administrative fine with administrative removal from the Russian Federation.
Along with that the court takes into account that there are no legitimate grounds giving Mr Rakhmonov the right to stay in the Russian Federation.
Given that Mr Rakhmonov has the possibility of leaving the Russian Federation on his own (the presence of the identity document and the ticket for 27 November 2017 from the Russian Federation to Tashkent, Uzbekistan), the judge finds it possible that the additional sanction of the administrative removal be carried out via controlled departure procedure.
In the court’s opinion, the fact of Mr Rakhmonov having two minor children in the Russian Federation does not provide him with the right of stay in the Russian Federation…
Along with that the judge finds that the fact of Mr Rakhmonov having two minor children in the Russian Federation does not provide the basis not to apply against him the sanction of administrative removal from Russia and it does not impede Mr Rakhmonov’s residence with the minor children and wife outside of the Russian Federation.
… Mr Rakhmonov is obliged to leave Russia via the controlled departure procedure within 5 days of entering of the present decision into force …”
The first applicant appealed against the above judgment to the Perm Regional Court (“the Regional Court”), alleging that his removal from Russia would, inter alia, disrupt his family life with the second applicant and their children on account of the subsequent five-year re-entry ban.
On 28 November 2017 the Regional Court upheld the removal. Its decision stated, amongst other things, as follows.
“… the circumstances referred to by the applicant, that is that he is married to a Russian national Ms D.R. with whom he has two minor children, who are Russian nationals and that the sanction of removal deprives him of being together with his wife and children does not exclude the imposition on him of the administrative removal…
As it follows from the documents furnished by the Perm Region Migration Authority, on 27 October 2017 decision no. 917/2017 was taken concerning the refusal to grant [the first applicant] temporary residence permit in the Russian Federation. The basis for that decision … is that Mr Rakhmonov had either submitted forged or sham documents or deliberately false information.
Therefore, the imposition on Mr Rakhmonov of the administrative removal is based on the need for the application of that measure and its proportionality with the aims of administrative punishment in order to prevent new violations …”
On an unspecified date after 28 November 2017 the first applicant was deported from Russia via the controlled departure procedure. Due to the imposition of the administrative removal, his re-entry into the Russian Federation is banned for five years from the date of the removal.
B. Relevant domestic law
For the relevant domestic law and practice, see Muradeli v. Russia (no. 72780/12, §§ 45-55, 9 April 2015).
COMPLAINT
The applicants complain under Article 8 of the Convention that in ordering the first applicant’s administrative removal, the domestic courts failed to properly examine the adverse effect of that measure on their family life and to balance the interests involved.
QUESTIONS TO THE PARTIES
1. Did the first applicant exhaust domestic remedies in respect of the decision of 17 November 2017 concerning his administrative removal entailing five-year re-entry ban? The Government are requested to provide examples of the effectiveness of the domestic remedies referred to, if any. Did the first applicant have at his disposal effective domestic remedies against the removal carried out via the controlled departure procedure after the decision of 17 November 2017 entered into force? The Government are requested to provide examples of the effectiveness of the domestic remedies referred to, if any.
2. Did the decision of 17 November 2017 concerning the first applicant’s administrative removal from Russia entailing five-year re-entry ban constitute an interference with the applicants’ right to respect for their family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention (see Üner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006-XII, and Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-09, 3 October 2014)?
3. The Government are requested to provide a copy of the documents pertaining to the first applicant’s administrative removal from Russia.
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