Last Updated on May 25, 2019 by LawEuro
Communicated on 5 September 2018
THIRD SECTION
Application no. 83888/17
Ibrokhimchon Odilshoyevich KAKHKHOROV
against Russia
lodged on 8 December 2017
STATEMENT OF FACTS
The applicant, Mr Ibrokhimchon Odilshoyevich Kakhkhorov, is a Tajikistani national, who was born in 1977 and lives in Yalutorovsk.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
1. Background information
Since 2003 or 2004 the applicant regularly visited Russia on the basis of visa-free agreement and his stay did no exceed ninety days out of hundred eighty days at a time.
On 25 October 2011 he arrived in Russia, his stay was authorised until 22 January 2012. After the expiration of the authorised period, the applicant remained in Russia illegally. At some point in 2011 he started cohabiting with a Russian national Ms N.K. They couple resided in the village of Khokhlovo in the Yalutorovsk district of the Tyumen Region.
In February 2015 and August 2016, the applicant and Ms N.K. had two sons. The family lived on the income received from their subsidiary husbandry.
2. The applicant’s exclusion from Russia and his appeals against it
On 29 May 2017 (in the document submitted the date was also stated as 30 May 2017) the applicant was detained by the immigration unit of the Yalutorovsk police department for a violation of Article 18.8 § 1 of the Russian Code of Administrative Offences (“the CAO”), that is overstaying the 90-day time-limit for residence in Russia within a period of 180 days. In the detention record the applicant stated that he had overstayed the authorised term of his residence due to having family life in Russia with his common-law wife and their two children.
On 29 May 2017 the Yalutorovsk District Court in the Tyumen Region (the District Court) found the applicant’s guilty for violating Article 18.8 § 1 of the CAO. It fined him 2,000 Russian roubles (RUB – approximately 30 euros (EUR)) and ordered his administrative removal. The decision ordered the applicant’s detention pending removal in a special detention centre for foreigners and stateless persons in the Tyumen Region. After his removal from Russia, the applicant would be banned from re-entering the country for five years. The text of the decision stated, inter alia, the following:
“…at the hearing Mr Khakhkhorov fully admitted his guilt in the commission of the infraction under Article 18.8 § 1 of the CAO and explained that he had arrived in the Russian Federation on 25 October 2011, but he had not left when the allowed term of his stay had expired, even though he had understood that he had not had lawful grounds for his stay in the Russian Federation. As for the reason for the commission of the infraction, he stated that in the beginning of 2012 his common-law partner Ms N.K. had been hospitalised and stayed at the hospital and after the discharge from it she had undergone long-term out-patient treatment. He had had to remain [in Russia] and help her with the household; then in 2015 in 2016 Mr M.K. and Mr G.K. had been born. The family responsibilities and the lack of financial means, as he had not been officially employed, had precluded him from applying to the embassy of Tajikistan and formalising the necessary documents. [At the time of the arrest] he had been cohabiting with Ms N.K. for almost five years. In the children’s birth certificates, he was not stated as their father as at the time of their birth he had not had the documents necessary for filing for the paternity application at the registry office. He asked the court not to remove him from Russia and allow him to leave the country on his own…
The court finds … that the information provided by Mr Kakhkhorov that he was the father of Mr M.K., who was born on 13.02.2015 and Mr G.K., who was born on 24 August 2016, who were Russian nationals, is not confirmed by documentary proof as the children’s birth certificates do not contain information about the father.
Thus, the court established that Kakhkhorov was not married to a Russian national; no reliable proof of him having underage dependent children who were Russian nationals was furnished to the court. Mr Kakhkhorov did not take steps to legalise his status in Russia; there are no obstacles or difficulties to his residence in the country of his nationality.
Deciding on the administrative sanction to be imposed on Mr Kakhkhorov, the court takes into account the nature of the violation, the personality of the person responsible, as wells as mitigating and aggravating circumstances.
As regards the mitigating circumstances, the court finds, in accordance with Article 42 of COA, his admission of guilt and full repentance for the violation.
As regards the aggravating circumstances, none of those have been established…
Given that Article 18.8 § 1 of the CAO provides for administrative sanction with compulsory removal from the Russian Federation … the court finds it necessary to impose on Mr Kakhkhorov the fine within the limits of that provision along with administrative removal from the Russian Federation though the compulsory removal procedure …”
The applicant appealed against the removal order to the Tyumen Regional Court (the Regional Court) stating, amongst other things, that the District Court had disregarded his family life with Ms N.K. that they had two children and therefore his removal with the five-year re-entry ban would disrupt his family life. He asked that the sanction be changed and his punishment be without the removal from Russia.
On 8 June 2017 the Tyumen Regional Court examined the applicant’s appeal and upheld the removal order. Its decision stated, amongst other things, the following:
“….there are no reasons for the change of the imposed punishment. The cohabitation with a Russian national in a common-law partnership, and that national’s two minor children do not demonstrate that Mr Kakhkhorov has stable family ties in the Russian Federation.
Besides, according to the [children’s] birth certificates…, Mr Kakhkhorov is not indicated as the father of Mr M.K. and Mr. G.K. and the case file does not contain information concerning establishment of the paternity.
Mr Kakhkhorov’s character references and the information letter from the head of the Khokhlovo village administration of 5 June 2017, as well as a copy of the claim for the establishment of paternity lodged with the Yalutorovsk District Court on 2 June 2017, cannot lead to the change of the punishment as they do not demonstrate presence Mr Kakhkhorov’s stable family ties in Russia. In addition, having resided as family with minors Mr M.K. and Mr G.K., Mr Kakhkhorov was not precluded from applying to the registry office in order to establish the paternity…”
The removal order immediately became final and enforceable. On 23 July 2017 the applicant was deported from Russia.
3. Relevant court proceedings
(a) Establishment of the paternity
On 26 July 2017 the District Court officially established the applicant’s paternity over Mr M.K. and Mr G.K. In its decision, the court stated, amongst other things, the following:
“… between 2011 and 2017 Ms N.K. had close relationship with Mr Khakhkhorov … During that period, they cohabited, lived as a family, and had two children, Mr M.K. and Mr G.K.
Mr Khakhkhorov was aware of the pregnancies, recognised his paternity, since the beginning of the pregnancies aided in every way, and took parental responsibilities as well as the care of Ms N.K. during her sickness (including the post-surgery period). Those facts confirmed by the neighbours and the family friends …”
(b) Establishing the children’s place of residence
On an unspecified date between August and November 2017, the applicant brought proceedings against his common-law wife Ms N.K. concerning the establishment of their children’s place of residence. In his claim, the applicant stated that he wished that his children would move to reside with him to Tajikistan, as he could not return to Russia due to the five-year re-entry ban.
On 28 November 2017, the District Court examined the applicant’s claim and rejected it having found that both children should reside in Russia. The court concluded that the applicant had failed to prove that “moral and psychological environment at the place of his residence [in Tajikistan] would be suitable for the children’s life there.”
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 applicant complains under Article 8 of the Convention that his removal from Russia entailing five-year re-entry ban violated his right to respect for family life.
QUESTIONS TO THE PARTIES
1. Did the applicant exhaust domestic remedies in respect of the decision of 29 May 2017 concerning his administrative removal? The Government are requested to provide examples of the effectiveness of the domestic remedies referred to, if any. Did the applicant have at his disposal effective domestic remedies against his removal carried out on 23 July 2017? The Government are requested to provide examples of the effectiveness of the domestic remedies referred to, if any.
2. Did the removal order of 29 May 2017 entailing subsequent five-year re‑entry ban constitute an interference with the applicant’s right to respect for his 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 applicant’s deportation order and other documents pertaining to his removal from Russia.
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