THIRD SECTION
\nDECISION<\/p>\n
Application no. 30764\/13
\nAkhmed Shakh RAZIGDAD
\nagainst Russia<\/p>\n
The European Court of Human Rights (Third Section), sitting on 20\u00a0November 2018 as a Committee composed of:<\/p>\n
Alena Pol\u00e1\u010dkov\u00e1, President,
\nDmitry Dedov,
\nJolien Schukking, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 16 April 2013,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The 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.<\/p>\n 2.\u00a0\u00a0The Russian Government (\u201cthe Government\u201d) were represented by Mr\u00a0G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr\u00a0M. Galperin.<\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 1.\u00a0\u00a0Background information<\/em><\/p>\n 4.\u00a0\u00a0The 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\u2019at-e Dowlati\/Wezarat-e Amniyat-e Dowlati). Between 1992 and 1996 he worked as a market vendor in Mazar\u2011e-Sharif.<\/p>\n 5.\u00a0\u00a0In 1996 the applicant had to leave Afghanistan owing to persecution by local militants as a result of his earlier work for the security service.<\/p>\n 6.\u00a0\u00a0In October 1996 the applicant arrived in Russia on a visa. After the visa expired, he remained in the country illegally.<\/p>\n 7.\u00a0\u00a0On 8 September 1999 the applicant applied for asylum in Russia. On 13 September 1999 the Federal Migration Service (\u201cthe FMS\u201d) rejected his request. The applicant did not appeal against that decision.<\/p>\n 8.\u00a0\u00a0On 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.<\/p>\n 9.\u00a0\u00a0In 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.<\/p>\n 10.\u00a0\u00a0In February 2007 the applicant renewed his Afghan passport at the embassy of Afghanistan in Moscow until February 2012.<\/p>\n 11.\u00a0\u00a0In 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.<\/p>\n 12.\u00a0\u00a0The 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.<\/p>\n 13.\u00a0\u00a0On 20 July 2011 the Moscow FMS re-examined the third application for temporary asylum and again rejected it.<\/p>\n 2.\u00a0\u00a0The applicant\u2019s appeal against the decision of 20 July 2011<\/em><\/p>\n 14.\u00a0\u00a0On 27 January 2012 the applicant lodged an appeal against the decision of 20\u00a0July 2011 with the Preobrazhenskiy District Court (\u201cthe District Court\u201d) 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\u2011treatment by local militants.<\/p>\n 15.\u00a0\u00a0On 27 March 2012 the District Court dismissed the applicant\u2019s appeal. On 12 November 2012 the Moscow City Court (\u201cthe City Court\u201d) upheld that decision on a further appeal.<\/p>\n 16.\u00a0\u00a0On 17 December 2012 the City Court dismissed an application by the applicant for leave to lodge a cassation appeal and on 22\u00a0March 2013 the Supreme Court of the Russian Federation upheld that decision.<\/p>\n 17.\u00a0\u00a0The applicant provided no information to the Court on subsequent developments concerning his attempts to regularise his immigration status in Russia.<\/p>\n 3.\u00a0\u00a0Information submitted by the Government on further developments<\/em><\/p>\n 18.\u00a0\u00a0On 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.<\/p>\n 19.\u00a0\u00a0On 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.<\/p>\n 20.\u00a0\u00a0On 10 November 2015 the Moscow FMS granted the applicant temporary asylum on humanitarian grounds for a period of one year.<\/p>\n 21.\u00a0\u00a0On 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 \u201ccould leave Russia in order to enter the country of his nationality and then legalise his status here [in Russia]\u201d. The applicant did not appeal.<\/p>\n 22.\u00a0\u00a0According to the Government, no decision on the applicant\u2019s deportation or expulsion had been taken; he continued to reside in Russia.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 1.\u00a0\u00a0Grounds for a foreigner\u2019s stay in Russia<\/em><\/p>\n (a)\u00a0\u00a0Visa, temporary residence and residence permits<\/p>\n 23.\u00a0\u00a0The 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).<\/p>\n 24.\u00a0\u00a0After 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).<\/p>\n 25.\u00a0\u00a0A 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).<\/p>\n (b)\u00a0\u00a0Temporary asylum<\/p>\n 26.\u00a0\u00a0Section 12 of the Refugees Act of Russia (Law no. 4258-I of 19\u00a0February 1993) (\u201cthe Refugees Act\u201d) 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 \u201chumanitarian reasons\u201d. Having received temporary asylum, the person may not be returned against his will to the country of nationality or the country of habitual residence.<\/p>\n 27.\u00a0\u00a0The Rules on Temporary Asylum Status (\u201cthe Rules\u201d) 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\u2019s current temporary asylum status (section 12(2) of the Rules).<\/p>\n (c)\u00a0\u00a0Appeal against an official decision<\/p>\n 28.\u00a0\u00a0Until 15 September 2015 under Article 254 \u00a7 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.<\/p>\n 29.\u00a0\u00a0As 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.<\/p>\n COMPLAINTS<\/strong><\/p>\n 30.\u00a0\u00a0The 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.<\/p>\n THE LAW<\/strong><\/p>\n 31.\u00a0\u00a0The 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:<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n 2.\u00a0\u00a0There 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.\u201d<\/p>\n A.\u00a0\u00a0The Government\u2019s submissions<\/strong><\/p>\n 32.\u00a0\u00a0The 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\u2019 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.<\/p>\n B.\u00a0\u00a0The applicant\u2019s submissions<\/strong><\/p>\n 33.\u00a0\u00a0The applicant commented neither on the Government\u2019s non\u2011exhaustion 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.<\/p>\n C.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 34.\u00a0\u00a0At 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\u00a047 \u00a7 7 (former Rule 47 \u00a7 6) of the Rules of Court, which provides as follows:<\/p>\n \u201c7.\u00a0\u00a0Applicants shall keep the Court informed of … all circumstances relevant to the application.\u201d<\/p>\n 35.\u00a0\u00a0It was only in his reply to the Government\u2019s 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.<\/p>\n 36.\u00a0\u00a0The 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.<\/p>\n 37.\u00a0\u00a0The Court notes that the Russian authorities took no steps towards the applicant\u2019s 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\u2019s observations to the Court). Nothing had prevented the authorities from doing so, given that throughout the entire period the applicant\u2019s presence in the country was known to them, along with his failure to legalise his immigration status.<\/p>\n 38.\u00a0\u00a0The 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\u2019s removal was inevitable and impending. Under Russian law, a specific decision requiring a foreigner\u2019s 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.\u00a0(X.W.) v. Russia, no.\u00a044095\/14, \u00a7 65, 29 October 2015), and any such decision can be challenged (see paragraphs 28-29 above).<\/p>\n 39.\u00a0\u00a0The Court considers that in the circumstances of the present case, given the absence of such a decision, the applicant\u2019s arguments concerning potential adverse effects on his family life arising from his possible deportation from Russia remain speculative (see, mutatis mutandis, A.R.\u00a0v.\u00a0Russia (dec.), no. 25923\/15, 10 May 2016).<\/p>\n 40.\u00a0\u00a0In view of the above, the applicant\u2019s complaint under Article 8 of theConvention is manifestly ill\u2011founded pursuant to Article\u00a035 \u00a7\u00a7\u00a03\u00a0(a) and 4 of the Convention.<\/p>\n 41.\u00a0\u00a0The 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.\u00a042409\/09, 14\u00a0June 2011, and Bakoyev v. Russia, no. 30225\/11, \u00a7 100, 5\u00a0February 2013).<\/p>\n 42.\u00a0\u00a0As regards the applicant\u2019s Article 13 complaint, the Court considers that it is unsubstantiated and should be rejected as manifestly ill-founded pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 13 December 2018.<\/p>\n Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Alena Pol\u00e1\u010dkov\u00e1
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n