PROCEDURE

The case originated in an application (no. 948/12) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Kosovar nationals, Mr Sait Berisha (“the first applicant”) and Mrs Selvije Berisha (“the second applicant”), on 21 December 2011.

The applicants were represented by Mr Ph. Liechti, a lawyer practising in Lausanne. The Swiss Government (“the Government”) were represented by their Agent, Mr A. Scheidegger, of the Federal Office of Justice.

The applicants alleged, in particular, that the refusal by the Swiss authorities to allow their three children, R. Berisha, L. Berisha and B. Berisha, to reside in Switzerland constituted a breach of their right to respect for family life as guaranteed by Article 8 of the Convention. They further held that expulsion of the children, who were residing in Switzerland illegally, would violate Article 3 of the Convention. Pending proceedings before the Court the applicants therefore requested that Rule 39 of the Rules of Court be applied.

On 9 March 2012 the Vice-President of the Second Section, to which the case was allocated, decided not to apply Rule 39 of the Rules of Court but to grant priority to the application under Rule 41 of the Rules of Court.

On 29 June 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

The applicants and the Government each submitted observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The first applicant was born in 1967 and the second applicant in 1974, both in Kosovo. Their children R., L. and B. were also born in Kosovo in 1994, 1996 and 2003 respectively. The applicants have a fourth child, E., who was born in Switzerland in 2010. They all live in Lausanne, Canton of Vaud.

In June 1997 the first applicant entered Switzerland, where he applied for asylum. His asylum request was rejected by the Federal Office for Migration on 19 November 1997 and it ordered that he should be expelled. The expulsion was not executed, and on 21 May 1999 the first applicant received a temporary residence permit for Switzerland.

On 28 February 2000 the first applicant married a Swiss national. On 2 March 2005 he received a permanent residence permit for Switzerland. On 26 August 2006 he got divorced.

On 10 January 2007 he married the second applicant - whom he had known since 1993 and with whom he had had the three children - in Rahovec (Kosovo). The second applicant entered Switzerland on 6 April 2007 with a visa. On 7 June 2007 the first applicant applied for a residence permit for the second applicant on the ground of family reunification. The second applicant announced her arrival in Lausanne on 8 June 2007. When she filled in the arrival form she left the question regarding family members unanswered. On 6 September 2007 the Office for Migration of the Canton of Vaud (Le service de population du canton de Vaud; hereafter “the Migration Office”) granted her a residence permit valid until 5 April 2012.

On 4 December 2007 the second applicant applied to the Swiss representation in Pristina (Kosovo) for residence permits on the ground of family reunification for the three children, R., L. and B. She enclosed with the application the birth certificates of the three children, which named the first applicant as the father. On the basis of that application the Migration Office decided on 2 June 2008 to investigate the applicants’ family situation. Both applicants, as well as the first applicant’s ex-wife, were interviewed. On this occasion the ex-wife declared that the first applicant “had abused her naivety and her good will” and “had lied to her by hiding from her the fact that he had children, especially one born during their marriage”. The first applicant in turn stated that he had hidden those facts from his ex-wife because “his relationship with the second applicant was not a serious one at that time” and “he was not sure whether he was the father of the children”. Further, “[he] did not know then whether he was going to marry the second applicant”. On 18 December 2008 the second applicant wrote another letter to the Migration Office, informing it that her oldest daughter, L., had fallen seriously ill and had been hospitalised in Pristina. L.’s only relative who could care for her in Kosovo was her elderly grandmother. She therefore urged the Migration Office to decide the matter promptly. She attached a medical certificate of 11 December 2008 issued by the children’s hospital in Pristina, which stated that L. was suffering from rheumatic fever (febris rheumatica).

On 9 January 2009 the Migration Office informed the second applicant that it was minded to refuse the request for residence permits for the children on the ground of family reunification. The Migration Office held that neither she nor the first applicant had previously mentioned the existence of the three children, and it doubted whether the first applicant was in fact the father of the three children. The second applicant was however given the opportunity to contest those findings within a time-limit.

By a letter of 2 March 2009 the second applicant answered that she had never concealed the existence of her three children from the Swiss authorities. She explained that when she had entered Switzerland she had had no knowledge of the French language and had had to “improvise” when completing the entry form. That was why she had not answered the question regarding her children. However, in her personal visa application to the Swiss representation in Pristina on 13 March 2007 she had revealed the identity of her three children. She stated furthermore that her children had been mentioned regularly in the tax declarations to the Swiss authorities, and that the first applicant’s employer in Switzerland had paid child allowances for them for many years. Therefore, the Swiss authorities had always been aware of the existence of the children. As evidence she attached a copy of the tax declaration for the year 2007.

On 28 April 2009 the Migration Office refused the applicants’ request for family reunification with their children. It ruled that neither the first nor the second applicant had mentioned the existence of their three children when they entered Switzerland, and they doubted that the first applicant was the father of the three children. They established that the applicants had not conducted themselves correctly with regard to the application, and accordingly they were no longer entitled to family reunification. The applicants did not appeal against this decision and it became final.

On 15 August 2009, the three children, R., L. and B., entered Switzerland clandestinely.

On 12 April 2010 the second applicant gave birth to a fourth child, E.

By a letter of 31 May 2010 the first applicant informed the Migration Office that R., L. and B. had been living in Switzerland illegally since 15 August 2009. He explained that it had been urgent to bring them to the respondent State because L.’s chances of recovery were better in Switzerland. Furthermore, he alleged that it had been for various reasons impossible for the children to remain in their home country. On 1 June 2010 the Migration Office officially registered the entry of the three children into Switzerland on 15 August 2009, and noted that the applicants had submitted a request for residence permits for them on the ground of family reunification.

On 13 July 2010 the Migration Office informed the applicants that it intended to dismiss their request. It established that the applicants had brought the children to Switzerland illegally despite the negative decision of the Migration Office of 28 April 2009. Therefore, the applicants had acted contrary to the rules of the immigration authorities. The Migration Office also reiterated that the children’s existence had previously been concealed from the Swiss authorities, and that the paternity of the first applicant had not been established. In addition, the legal requirements for family reunification had not been met. According to Article 47 (1) together with Article 47 (3b) of the new Foreign Nationals Act (see below, § 31), the right to family reunification had to be exercised within five years after the granting of a residence permit to the family member. This time-limit was only twelve months if the children were more than twelve years old. The request regarding R. and L., aged fifteen and fourteen respectively at the time of the application, was therefore late. Conversely, the request for B., aged seven at that time, was within the set time-limit. The Migration Office however found that, according to Rule 6.8 of the Federal Directive regarding family reunification, the purpose of a residence permit on the ground of family reunification was to enable all the members of a family to live together in the respondent State. Since R. and L. did not fulfil the prerequisites for a residence permit, it was not possible for the whole family to live together in Switzerland. Therefore, in the case of B. the requirements for family reunification were not met either. The Migration Office further added that, given that the second applicant had been granted a residence permit on 6 September 2007, the applicants had waited quite a while before applying for family reunification, and they had not cited any other important family reasons for seeking reunification. Finally, they established that R., L. and B. had lived their entire lives in their home country of Kosovo, where they had attended school, that the two oldest siblings would soon attain the age of majority and that in the circumstances of the case it remained doubtful whether it had always been the applicants’ true intention to construct family life in Switzerland. The Migration Office gave the applicants another opportunity to contest those findings.

By a letter of 29 July 2010 the applicants informed the Migration Office that they wanted to maintain their request. They affirmed that the children had come to live in Switzerland because their grandmother, with whom they had been living in Kosovo, was old and could no longer care for them. Furthermore, it had always been the intention of the applicants to be reunited with their children once the second applicant had obtained a residence permit in Switzerland; this was illustrated by the first request for family reunification, made on 4 December 2007. They held that they could not be reproached with tardiness in applying for family reunification, because it was the Migration Office which had taken a year and four months to decide on the first application. They further reiterated that they had never attempted to deceive as to the existence of the children, and they indicated that a refusal to issue residence permits to the three children would breach Article 8 of the Convention and be against their best interests as children as established in Article 3 (1), 8 (1), 9 (1) and 10 (1) of the United Nations Convention on the Rights of the Child (see below § 33). Finally, they drew attention to the birth of the applicants’ fourth child and the risk that a refusal of family reunification would separate the siblings.

By a decision of 23 August 2010 the Migration Office rejected the applicants’ request for family reunification with their three children, on the grounds given previously. It further ordered that the children had to leave Switzerland within a month of the notification of the decision.

The applicants and their children appealed against this decision to the Cantonal Administrative Court of the Canton of Vaud (“the Cantonal Court”). They attached Swiss school certificates for R., L. and B. which stated that they were well integrated in Switzerland. In particular, the applicants reiterated that, if returned to their home country, the children would be obliged to live in an orphanage, because their grandmother was no longer able to care for them. Furthermore, they stated that the first applicant had always been officially recognised as the father of the children and that he had regularly visited them and financially supported them in Kosovo as well as now in Switzerland.

At the Cantonal Court’s request, a DNA examination was conducted. In a report of 30 December 2010 the University Centre of Legal Medicine Lausanne-Geneva established that the applicants were indeed the parents of the three children.

By a fax of 22 February 2011 the Cantonal Court asked the Swiss embassy in Pristina to send it a copy of the visa application the second applicant had made on 13 March 2007, in which she had allegedly mentioned the existence of her three children. In its answer the embassy informed the Cantonal Court that it could not provide a copy of the visa application because in accordance with internal instructions it had been destroyed after two years.

By a decision of 23 March 2011 the Cantonal Court dismissed the applicants’ appeal. It first concluded that the decision of the Migration Office of 28 April 2009 had indeed become final. Therefore, only the facts as presented by the request for family reunification made on 1 June 2010 were relevant. On the merits, the Cantonal Court established that the domestic law indicated that the request for residence permits on the ground of family reunification for R. and L. had been submitted late. Residence permits could therefore only be issued to them if there were important family reasons as set out in Article 47 (4) of the Foreign Nationals Act. According to Article 75 of the Federal Ordinance “Admission, Residence and Exercise of a Lucrative Activity” (see below, § 32) - the operative provision to Article 47 (4) of the Foreign Nationals Act - “important family reasons” were given when the best interests of the child could only be guaranteed by family reunification in Switzerland. The Cantonal Court however considered that in the case of R. and L. no such important family reasons could be identified; in particular, the positive development of L.’s recovery would not justify the permanent establishment of the children in Switzerland. Regarding the request of B., the Cantonal Court reiterated that in application of Article 96 (1) of the Foreign Nationals Act (see below § 31), the applicants had failed to establish that their private interest in a family reunification outweighed the public interest of the respondent State in controlling the entry of foreigners into its territory, although the second applicant had applied within the legal time-limit. In particular, it held: that in light of the statements made by the first applicant’s ex-wife, the applicants had engaged in deliberate deception between July 1997 and December 2007 as regards the existence of their three children; that according to Article 51 (2) and 62 (a) of the Foreign Nationals Act (see below § 31) this dissimulation alone justified the refusal of the children’s residence permits, because it breached public order; that the applicants had illegally brought the children to Switzerland and thereby presented the authorities with a fait accompli; that the applicants had not substantiated the age of the children’s grandmother in Kosovo and had not produced any medical evidence that the grandmother was no longer in a position to care for them; and that neither the birth of the fourth child nor the three children’s positive (Swiss) school certificates were decisive elements which would justify the issuing of residence permits. The application for residence permits for the three children should therefore be dismissed.

The applicants and their children appealed to the Federal Supreme Court against the Cantonal Court’s decision. They argued in particular that the Cantonal Court had not considered whether the refusal of the residence permits for the children was in breach of Article 8 of the Convention. Furthermore, they claimed that expulsion of the three children would violate Article 3 of the Convention, because in their home country the children would have to be dependent on social services or be sent to an orphanage.

By a decision of 18 November 2011 the Federal Supreme Court rejected the applicants’ appeal. It endorsed the Cantonal Court’s findings, and ruled that the refusal of the residence permits was proportionate under domestic law as well as under Article 8 of the Convention. It further ruled that the applicants’ claim of a breach of Article 3 of the Convention in the event of the children’s expulsion to Kosovo was manifestly ill-founded.

By a letter of 29 February 2012 the applicants addressed the Court requesting that, pending the proceedings before it, the Swiss Government be invited to revoke the expulsion of their three children. By a letter of 12 March 2012 the applicants were informed that their request for the application of Rule 39 of the Rules of the Court had been dismissed but that their application had been granted priority.

In addition to the documents produced in the domestic proceedings, the applicants also submitted to the Court new certificates from the schools where B. and L. were enrolled. With respect to B., the school certificates of the primary school of 15 February 2012 and 13 December 2012 indicated that she was an excellent student, speaking French fluently and being well integrated. Her teacher expressed incomprehension regarding the proposed expulsion, and stated that it would be against B.’s best interests as a child. Regarding L., the Director of the secondary school (établissement secondaire) wrote in a certificate dated 8 February 2012 that L. was very well integrated and that her high marks would presuppose her entry into high school (le lycée) the following school year.

On 17 July 2012 the cantonal authorities of the Canton of Vaud issued a permanent residence permit to the second applicant.

By a letter of 18 April 2013 the applicants’ lawyer confirmed that R., L. and B. were still residing in Switzerland.