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In the case of Gül v. Switzerland (1),

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection

of Human Rights and Fundamental Freedoms ("the Convention") and

the relevant provisions of Rules of Court A (2), as a Chamber

composed of the following judges:

Mr R. Bernhardt, President,

Mr F. Matscher,

Mr C. Russo,

Mr N. Valticos,

Mr S.K. Martens,

Mrs E. Palm,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr K. Jungwiert,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 27 October 1995 and

22 January 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 53/1995/559/645. The first number is

the case's position on the list of cases referred to the Court

in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the

Court since its creation and on the list of the corresponding

applications to the Commission.

2. Rules A apply to all cases referred to the Court before the

entry into force of Protocol No. 9 (P9) (1 October 1994) and

thereafter only to cases concerning States not bound by that

Protocol (P9). They correspond to the Rules that came into force

on 1 January 1983, as amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 29 May 1995, and

by the Government of the Swiss Confederation ("the Government")

on 26 June 1995, within the three-month period laid down by

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the

Convention. It originated in an application (no. 23218/94)

against Switzerland lodged with the Commission under Article 25

(art. 25) by a Turkish national, Mr Riza Gül, on

31 December 1993.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Switzerland

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46); the Government's application referred to Articles 45,

47 and 48 (art. 45, art. 47, art. 48). The object of the request

and of the application was to obtain a decision as to whether the

facts of the case disclosed a breach by the respondent State of

its obligations under Article 8 (art. 8) of the Convention.

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicant stated that he

wished to take part in the proceedings and designated the lawyers

who would represent him (Rule 30). The Turkish Government,

having been informed by the Registrar of their right to intervene

in the proceedings (Article 48 (b) of the Convention and Rule 33

para. 3 (b)) (art. 48-b), did not indicate any intention of so

doing.

3. The Chamber to be constituted included ex officio

Mr L. Wildhaber, the elected judge of Swiss nationality

(Article 43 of the Convention) (art. 43), and Mr R. Bernhardt,

the Vice-President of the Court (Rule 21 para. 4). On

8 June 1995, in the presence of the Registrar, the President of

the Court drew by lot the names of the other seven members,

namely Mr F. Matscher, Mr C. Russo, Mr N. Valticos,

Mr S.K. Martens, Mrs E. Palm, Mr M.A. Lopes Rocha and

Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21

para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

acting through the Registrar, consulted the Agent of the

Government, the applicant's lawyers and the Delegate of the

Commission on the organisation of the proceedings (Rules 37

para. 1 and 38). Pursuant to the order made in consequence, the

Registrar received the memorials of the applicant and the

Government on 3 and 11 August 1995 respectively. On

4 September 1995 the Secretary to the Commission informed the

Registrar that the Delegate would submit his observations at the

hearing.

On 25 August 1995 the Commission produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

5. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg,

on 25 October 1995. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr O. Jacot-Guillarmod, Assistant Director,

Head of the International Affairs Division,

Federal Office of Justice, Agent,

Mr F. Schürmann, Deputy Head of the European

Law and International Affairs Section,

Federal Office of Justice,

Mrs S. Marconato, Legal Officer,

Federal Aliens Office, Counsel;

(b) for the Commission

Mr H. Danelius, Delegate;

(c) for the applicant

Mr R. Plender QC,

Mr J. Walker, Fürsprech, Counsel.

The Court heard addresses by Mr Danelius, Mr Plender and

Mr Jacot-Guillarmod, and the latter's reply to the question asked

by one member of the Court.

On 25 and 27 October 1995 the Registrar received the

Government's and the applicant's written replies to that

question.

AS TO THE FACTS

I. Circumstances of the case

A. Situation of the applicant and part of his family in

Switzerland

6. Mr Gül is a Turkish national, who was born in 1947 and now

lives with his wife at Pratteln in the canton of Basle Rural,

Switzerland.

7. Until 1983 he lived with his wife and their two sons, Tuncay

(born on 12 October 1971) and Ersin (born on 20 January 1983),

in the town of Gümüshane in Turkey. On 25 April 1983 he

travelled to Switzerland, where he applied for political asylum

as a Kurd and former member of the Turkish Social Democratic

Party ("the CHP"). He worked in a restaurant there until 1990,

when he fell ill. Since then he has been in receipt of a

partial-invalidity pension.

8. In 1987 the applicant's wife, who had remained in Turkey

with their two sons, seriously burned herself during a fit

brought on by her epilepsy, from which she had suffered since

1982. In December 1987, having found that it was impossible for

her to obtain proper treatment in the area where she was then

living, she joined her husband in Switzerland, where she was

taken into hospital as an emergency case. Two of the fingers of

her left hand were amputated.

9. On 19 September 1988 in Switzerland Mrs Gül gave birth to

her third child, Nursal, a daughter. As she still suffered from

epilepsy, she could not take care of the baby, who was placed in

a home in Switzerland, where she has remained ever since. In a

written declaration dated 31 March 1989, a Pratteln specialist

in internal medicine stated that a return to Turkey would be

impossible for Mrs Gül and might even prove fatal to her, given

her serious medical condition.

10. On 9 February 1989 the Minister for Refugees rejected

Mr Gül's application for political asylum, on the ground that he

had not been able to establish that he personally had been a

victim of persecution, as the general situation of the Kurdish

population in Turkey was not in itself sufficient to justify

granting political asylum. He went on to say that, according to

reliable sources, no measures were being taken by the State

authorities against former members of the CHP, and ordered the

applicant to leave Switzerland by 30 April 1989, failing which

he would be deported.

On 10 March 1989 the applicant appealed against the above

decision to the Federal Justice and Police Department. He

asserted that the collective repression of Kurds in Turkey, of

which he himself had been a victim, in itself justified granting

political asylum. In addition, at the time when he had fled to

Switzerland all political parties had been proscribed and their

members - especially the members of left-wing parties like the

CHP - were being prosecuted. He could not therefore be required

to return to Turkey, and this would be in breach of Article 3

(art. 3) of the Convention.

11. In a letter of 26 June 1989, the Basle Rural Cantonal Aliens

Police (Fremdenpolizei) informed the applicant's lawyer that they

supported Mr Gül's request for a residence permit

(Aufenthaltsbewilligung) on humanitarian grounds in respect of

himself, his wife and his daughter Nursal.

In view of the length of time Mr Gül had been living in

Switzerland and his wife's precarious state of health, the police

considered that the conditions for the issue of such a permit

laid down in Article 13 (f) of the Federal Council's Order

Limiting the Number of Aliens ("the OLNA" - see paragraph 21

below) had been satisfied. The final decision to grant a

residence permit was given by the Federal Aliens Office on

15 February 1990.

12. As the Federal Justice and Police Department had informed

Mr Gül that his application for political asylum had only very

limited prospects of success on appeal, he withdrew it. The

authorities took formal note of this on 8 November 1989.

B. Steps taken by the applicant with a view to bringing

his two sons to Switzerland

1. Before the Basle Rural Cantonal Aliens Police

13. On 14 May 1990 Mr Gül asked the Basle Rural Cantonal Aliens

Police for permission to bring to Switzerland his two sons,

Tuncay and Ersin, who had remained in Turkey.

14. In a decision of 19 September 1990 the Aliens Police

rejected

Mr Gül's request, on the ground that the conditions for family

reunion had not been satisfied (Article 39 of the OLNA - see

paragraph 21 below). Firstly, the Gül family's flat did not

conform to the standards laid down and, secondly, the applicant

did not have sufficient means to provide for his family. In any

event, Tuncay was already eighteen and was therefore ineligible

for a residence permit under the rules governing family reunion.

2. Before the Basle Rural cantonal government

15. On 1 October 1990 the applicant appealed against this

decision to the Basle Rural cantonal government (Regierungsrat).

He argued that the residence permit issued to him and his wife

under Article 13 (f) of the OLNA should have been extended to

include his two sons, as his personal circumstances made it an

extremely serious case. Since it was impossible to return to

Turkey because of his wife's precarious state of health and the

length of time he had lived abroad, the family could be brought

back together only in Switzerland. Both Article 8 (art. 8) of

the European Convention on Human Rights, guaranteeing the right

to respect for family life, and the United Nations Convention on

the Rights of the Child gave the two boys the right to join their

parents in Switzerland. If the cantonal government were

nevertheless to rely on the provisions of Articles 38 et seq. of

the OLNA (see paragraph 21 below) on family reunion, the younger

son, Ersin, could and should be permitted to exercise that right.

There was enough room for him in the family's flat and Mr Gül's

financial resources were sufficient to provide for his family.

16. On 30 July 1991 the Basle Rural cantonal government

dismissed the applicant's appeal. It pointed out that under

section 4 of the Federal Residence and Settlement of Aliens Act

("the RSAA" - see paragraph 20 below) the question whether to

grant a residence permit (Aufenthaltsbewilligung) or settlement

permit (Niederlassungsbewilligung) was determined by the

competent cantonal authorities with unfettered discretion (nach

freiem Ermessen), having regard to the relevant statutory

provisions and international agreements. In that connection, the

authorities had to take account of the country's moral and

economic interests, and of the degree of immigrant penetration

(Überfremdung).

The cantonal government then considered whether Mr Gül's two

sons could rely on a right to obtain permission to reside in

Switzerland (Anwesenheitsbewilligung) on the basis of the

statutory provisions, as the agreement on settlement concluded

by Turkey and Switzerland on 13 December 1990 did not confer such

a right.

Under section 17 (2) of the RSAA (see paragraph 20 below)

a minor did not have such a right unless his parent was in

possession of a settlement permit. As Mr and Mrs Gül only had

a residence permit, they could not rely on that provision in

order to assert a right to family reunion. As for the guarantees

set forth in Article 8 (art. 8) of the Convention, only Swiss

nationals or persons in possession of a settlement permit could

rely on these; Mr and Mrs Gül fell into neither of those

categories.

Articles 38 et seq. of the OLNA (see paragraph 21 below) did

not confer a right but merely set out the minimum conditions to

be satisfied before family reunion could be authorised. The

cantonal authorities had the final say on the matter, and in

reaching their decision they had unfettered discretion. It being

established that the provisions concerned could only apply, if

at all, to the minor son, Ersin, the cantonal government listed

the minimum conditions which Article 39 para. 1 of the OLNA (see

paragraph 21 below) required to be satisfied by a foreigner

living in Switzerland before family reunion could be authorised,

namely:

(a) his residence and, where relevant, his gainful

employment should appear to be sufficiently stable;

(b) he should live with his family and occupy

accommodation suitable for that purpose;

(c) he should have sufficient means to support his family;

and

(d) firm arrangements should have been made for the care

of any children who still needed their parents' presence.

The cantonal government did not determine points (a) and

(b), but carefully considered points (c) and (d), on which it

gave the following decision:

"(c) The calculations made by the Aliens Police and the

cantonal government's legal service, which investigated the

case, show that Mr Gül has not satisfied the condition laid

down in Article 39 para. 1 (c) of the OLNA. He does not

have sufficient means to support his family during their

residence in Switzerland. According to the reference

calculation, Mr Gül should have a monthly net income of at

least 2,710 Swiss francs (CHF) if he is not to fall below

the minimum standard of living. That figure is derived

from the base rates used by the cantonal social security

office for assessing the likelihood of reliance on social

security, which are on the whole identical with the base

rates adopted by the Swiss Conference on Public Assistance

for the calculation of financial support. These base rates

are used to establish the monthly living expenses of the

foreigner concerned and the members of his family seeking

to join him, which have to be covered by his income. This

must be sufficient to provide not only the basic

necessities of life but also a minimum standard of living.

In this way the legitimate interest of the public

authorities in preventing the family from becoming a burden

on the social security services is also taken into account.

Mr Gül's net monthly income is CHF 2,060, which falls

CHF 650 short of the amount required for the minimum

standard of living as calculated by the social security

services. The cost of keeping the youngest child, Nursal,

in a children's home has not been taken into account, as it

is not known who pays for this. The calculation of income

is based on pay-slips from 1989, the latest available. On

23 October 1990 the Liestal Cantonal Hospital sent the

Basle Rural Aliens Police a medical certificate stating

that Mr Gül was 100% unfit for work and would remain so for

a period that it was not possible to determine. On enquiry

being made, it was confirmed in a medical certificate dated

19 April 1991 that Mr Gül had suffered from 100% incapacity

since April 1990 and would remain unfit for work for the

foreseeable future. The Pratteln municipal social security

services stated in a letter of 11 June 1991 that Mr Gül

would have to have several operations and that for the time

being he was waiting to be awarded an invalidity pension.

For the first three months of this year alone the social

security services have paid the Gül family CHF 8,731.75,

and the family will remain dependent on social security

payments. In June 1991 Mr Gül stated during a personal

interview with the subordinate authority (Vorinstanz) that

his family was at that time entirely dependent on social

security payments. He therefore has no other source of

income. At present the social security services are paying

the Gül family the amount needed by a three-person family,

but no more. The social security services cannot be

expected to provide for children arriving from abroad when

it is known in advance that they will have to support them.

Nor can Mr Gül support his other children from his own

resources. For that reason alone the application for

family reunion must be refused.

(d) Article 39 para. 1 (d) also requires firm arrangements

to be made for the care of children. But Mrs Gül, for

reasons connected with her illness, is not mentally or

physically capable of keeping her daughter Nursal with her

and looking after her. That is why Nursal has been brought

up in the "Auf Berg" children's home in Seltisberg, where

she is to remain. It follows that if Mr and Mrs Gül's

eight-year-old son Ersin joined the family, it is not at

all certain that firm arrangements could be made for his

care. He too would presumably have to be brought up in a

children's home, which is not the aim of family reunion.

A medical certificate dated 18 April 1991 states that

Mrs Gül is suffering from a serious illness which makes it

necessary for her to have constant medical supervision and

treatment. She might even need to go into hospital again.

That prospect makes it impossible to consider that firm

arrangements have been made for the child's care as the

Order requires."

The cantonal government went on to say that residence

permits issued on humanitarian grounds under Article 13 (f) of

the OLNA could not in addition confer on the recipients a right

to family reunion. In order to ensure equal treatment for all

aliens not having the right to reside in Switzerland, such

reunion could take place only under Articles 38 et seq. of the

OLNA.

Lastly, the cantonal government considered the situation of

the younger boy from the standpoint of Article 36 of the OLNA

(see paragraph 21 below), announcing its decision in the

following terms:

"Ersin Gül is only eight. It must be determined whether

his entry into Switzerland would be in accordance with

Article 36 of the OLNA, which requires an `important

reason' that is lacking in this case. There is no special

reason for treating Ersin Gül differently from other

children wishing to rejoin their families in respect of

whom the conditions laid down in Articles 38 et seq. of the

OLNA have not been satisfied. Another reason for refusing

to admit him to Switzerland is the fact that Ersin and

Tuncay Gül would be separated. Ersin has lived with Tuncay

since birth. On the other hand, he has been separated from

his father and mother for eight years and three and a half

years respectively. Having regard to the child's welfare,

which plays an important role in family reunion cases, the

question arises, at the very least, whether it is

reasonable to separate him from his brother and the

environment he is used to in order to bring him to live

with his mother, who is seriously ill and unable to keep

him with her or look after him, and his father, who went

away to Switzerland three month's after Ersin's birth,

which means that he hardly knows him. In view of all the

circumstances, and having regard to the child's welfare,

the cantonal government considers that Ersin Gül should not

be authorised to join his parents in Switzerland. In any

case, there is no important reason within the meaning of

Article 36 of the OLNA which requires him to be admitted to

Switzerland."

The cantonal government concluded that Mr Gül had not

satisfied the conditions laid down for family reunion and that

his children could not rely on Article 13 (f) or Article 36 of

the OLNA either in order to come to Switzerland to join him.

3. In the Federal Court

17. On 2 September 1991 the applicant lodged an

administrative-law appeal with the Swiss Federal Court. He

repeated his previous arguments (see paragraph 15 above) and

added that, because of the "special circumstances", Article 8

(art. 8) of the Convention gave his sons the right to obtain

permission to reside in Switzerland. The earlier issue of a

residence permit on humanitarian grounds to himself, his wife and

his daughter had been based on the finding that a return to

Turkey was impossible, as it would put the health of his wife and

daughter seriously at risk. Mr Gül argued that the same

considerations which had prevailed in the decision to grant that

residence permit should prevent any withdrawal thereof, which

would be tantamount to subjecting Mrs Gül, whose state of health

was still causing concern, to inhuman and degrading treatment

contrary to Article 3 (art. 3) of the Convention. The residence

permit issued to Mr and Mrs Gül on humanitarian grounds was

therefore the equivalent of a settlement permit, and it followed

that they had the right to family reunion, which could only take

place in Switzerland.

18. In a judgment of 2 July 1993 the Federal Court declared the

applicant's appeal inadmissible. It pointed out that, pursuant

to section 100 (b) (3) of the Federal Administration of Justice

Act, an administrative-law appeal in an immigration-control case

was inadmissible if it concerned the issue or refusal of permits

to which federal legislation conferred no entitlement. Like the

cantonal government, the Federal Court found that neither

section 17 (2) of the RSAA nor Article 8 (art. 8) of the

Convention conferred such a right on an alien resident outside

Switzerland whose parent living in Switzerland had only a

residence permit, as Mr Gül did. In particular, Article 8

(art. 8) of the Convention could be relied on only by a person

who had the right of abode in Switzerland either by virtue of his

Swiss nationality or by virtue of a settlement permit. The court

gave this ruling in the following terms:

"Article 8 (art. 8) of the European Convention on Human

Rights guarantees the right to respect for family life. In

certain circumstances the right to be issued with a

residence permit can be deduced from this (see ATF

[Judgments of the Swiss Federal Court] 118 Ib 152 at 4, 157

at c; 116 Ib 355 at 1b; 109 Ib 185 at 2), so that Article 8

(art. 8) may be breached where an alien whose family lives

in Switzerland is refused leave to enter the country.

According to the Federal Court's established case-law,

however, a breach can occur only where the family members

living in Switzerland themselves possess a well-established

right of abode (Anwesenheitsrecht). For that purpose, it

is in principle necessary to have Swiss nationality or

possess a settlement permit (see ATF 116 Ib 355 at 1b;

115 Ib 4 at 1d). A mere residence permit is at any rate

not sufficient unless it is based on a firmly established

right (see ATF 111 Ib 163/4 at 1a), as the Federal Court

has held in many unpublished judgments (most recently in

the judgment of 6 April 1993 in the case of K., at 1b) ...

That is, moreover, consistent with the new provisions on

the legal status of aliens having family members in

Switzerland (sections 7 and 17 (2) of the RSAA, as amended

on 23 March 1990, which came into force on 1 January 1992).

Under the Act the right to family reunion presupposes a

firmly established right of abode, as pointed out above

(at 1b). Given that the legislature's intention in

adopting the amendment in question was precisely to take

account of Article 8 (art. 8) of the European Convention on

Human Rights (see Bbl [Federal Gazette] 1987 III, pp. 293

et seq., particularly pp. 321 and 322), there is no reason,

when that provision (art. 8) of the Convention is invoked

with regard to recognition of legal rights in the matter of

residence permits, to go beyond what the Act itself

expressly provides (see the Federal Court's unpublished

judgment of 6 April 1993 in the case of K., at 1b)."

The Federal Court also emphasised the differences between

settlement permits and residence permits, stating:

"Unlike settlement permits, which are issued for an

indefinite period (section 6 (1) of the Federal Residence

and Settlement of Aliens Act - hereinafter the RSAA),

residence permits are always subject to a time-limit

(section 5 (1) of the RSAA). Whatever the reason for

granting the first residence permit, an alien must

therefore allow for the possibility that his permit will

not be renewed. There could be many reasons for this,

including, for example, police, economic or demographic

considerations. Although the alien's personal

circumstances have to be taken into account in the inquiry

into the proportionality of the decision not to renew, that

does not mean that the alien is on that account entitled to

have his residence permit renewed.

The above statement of the law also applies to residence

permits issued on humanitarian grounds. The only effect of

a finding that a case is an extremely serious one within

the meaning of Article 13 (f) of the Federal Council's

Order Limiting the Number of Aliens of 6 October 1986

(hereinafter the OLNA - SR 823.21) is to exclude the alien

concerned from the quotas laid down in that Order; it does

not imply the existence of a right to a residence permit.

The Aliens Police prefer to remain free to decide when such

a permit should be issued (see ATF 119 Ib 35 at 1a). In

addition, the possibility cannot be ruled out that the

particular circumstances which justified the issue of a

residence permit on humanitarian grounds will subsequently

cease to exist, or lose their significance to such an

extent that not only will there no longer be any reason to

exclude the person concerned from the quotas, but even

renewal of the residence permit will no longer be

justified. Moreover, it is apparent from the rule

established in Article 12 para. 2 of the OLNA that the

conditions required for a finding that the case is an

extremely serious one may subsequently cease to exist (see

the unpublished judgment of 3 July 1992 in the case of P.,

at 6). The question whether the case is of this type is

therefore entirely separate from the question whether the

person concerned has the right to obtain permission to

reside in Switzerland by virtue of Article 8 (art. 8) of

the European Convention on Human Rights (see ATF 115 Ib 8).

Furthermore, in the instant case the possibility cannot be

entirely ruled out that in the future the medical or other

reasons which led the authorities to grant the residence

permit will lose their significance, or that new grounds

justifying a refusal to renew the permit will become

apparent. The appellant can therefore not deduce from the

fact that he is authorised to reside in Switzerland any

right to the issue of a residence permit for his sons."

The Federal Court went on to say that the question how the

OLNA should be applied to the issue of permits was not one it had

to examine in connection with the administrative-law appeal, as

the cantonal government had already looked into the question

whether the Güls' younger son could be issued with a residence

permit under Article 36 of the OLNA.

C. Situation of the applicant's son Ersin in Turkey

19. Ersin has lived in Turkey since his birth, at first in

Gümüshane until 1993 (with his mother until 1987), and then in

Istanbul.

According to the Government, he is at present living, as is

his grandfather, with the family of his elder brother Tuncay, and

has been visited several times by his father.

The applicant maintained that Ersin frequently moved from

one home to another and spent two or three days staying with

various Kurdish families who used to live in the village where

he was born, including the family of his elder brother. Owing

to his grandfather's limited financial resources and the distance

between the homes of some of these families and the school it was

not possible for the boy to attend school on a regular basis.

As is evidenced by an article which appeared in the Turkish

newspaper Sabah on 25 July 1995, Mr and Mrs Gül visited their son

in Turkey in July and August 1995.

II. Relevant domestic law

A. The Federal Residence and Settlement of Aliens Act

(RSAA) of 26 March 1931

20. The Federal Residence and Settlement of Aliens Act provides:

Section 4

"The authority shall have discretion to decide, having

regard to the relevant statutory provisions and treaties

with foreign States, whether to grant residence or

settlement permits."

Section 16

"1. When deciding whether to grant a permit the

authorities must take account of the country's moral and

economic interests, and of the degree of immigrant

penetration.

..."

Section 17

"1. As a general rule, the authority shall first issue

only a residence permit, even if it is foreseen that the

alien will establish his permanent residence in

Switzerland. In each case the Federal Aliens Office shall

fix the date from which permission to settle may be

granted.

2. Where that date has already been fixed, or where the

alien is in possession of a settlement permit, his spouse

shall be entitled to a residence permit for as long as the

couple continue to live together. On completion of five

years' uninterrupted lawful residence the spouse shall also

become entitled to a settlement permit. Unmarried children

under 18 shall have the right to be included in the

settlement permit for as long as they continue to live with

their parents. These rights shall be extinguished if the

beneficiary has engaged in conduct contrary to public

policy."

Before 1 January 1992 the second paragraph of this section

read:

"Where that date has already been fixed, or where the alien

is in possession of a settlement permit, his wife and his

children under 18 shall have the right to be included in

the permit if they form part of his household."

B. The Order Limiting the Number of Aliens (OLNA) of

6 October 1986

21. The relevant provisions of the Order Limiting the Number of

Aliens are the following:

Article 13 - Exceptions

"The following categories of person shall not be included

in the quotas:

...

(f) aliens issued with residence permits in extremely

serious personal cases or on general policy grounds.

..."

Before 18 October 1989 the expression "extremely serious

personal cases" read: "cases of extreme adversity".

Article 36 - Other aliens without gainful employment

"Residence permits may be issued to other aliens without

gainful employment where important reasons so require."

Chapter 4: Family reunion

Article 38 - Principle

"1. The Cantonal Aliens Police may authorise an alien to

bring to Switzerland his spouse and his dependent unmarried

children under 18.

..."

Article 39 - Conditions

"1. An alien may be authorised to bring his family without

being required to complete any qualifying period ...

(a) if his residence and, where relevant, his gainful

employment appear to be sufficiently stable;

(b) if he lives with his family and occupies accommodation

suitable for that purpose;

(c) if he has sufficient means to support his family; and

(d) if firm arrangements have been made for the care of

any children who still need their parents' presence.

2. Accommodation is suitable if it meets the standards

applicable to Swiss nationals in the area where the alien

wishes to live."

Before 20 October 1993 the words "without being required to

complete any qualifying period" were not part of the text.

C. Case-law of the Swiss Federal Court

22. According to the established case-law of the Federal Court,

a person is entitled under Article 8 (art. 8) of the Convention

to join a member of his family in Switzerland if the latter is

a Swiss national or is in possession of a settlement permit

(Judgments of the Federal Court (ATF) vol. 116, part Ib, p. 355;

vol. 115, part Ib, p. 4; vol. 111, part Ib, pp. 163 et seq.).

D. The convention on social security concluded by Switzerland

and Turkey on 1 May 1969

23. Replying to the question asked at the hearing by one member

of the Court, the Government stated that by virtue of the

convention on social security concluded by Switzerland and the

Republic of Turkey on 1 May 1969, which came into force on

1 January 1972 with effect from 1 January 1969, invalidity

insurance benefits payable in either country are also payable in

the other. In the instant case, if Mr Gül returned to Turkey,

he would receive CHF 915, made up of his ordinary pension

(CHF 436) and half of the supplementary pension paid in respect

of his wife (CHF 131), his son Ersin (CHF 174) and his daughter

Nursal (CHF 174).

The applicant asserted that only his invalidity pension, not

the social security benefits, could be paid to him in Turkey.

Moreover, his invalidity pension was currently under review; if

his invalidity were to be assessed as less than 50%, his pension

could no longer be transferred to Turkey.

PROCEEDINGS BEFORE THE COMMISSION

24. Mr Gül applied to the Commission on 31 December 1993. He

alleged that the Swiss authorities' refusal to allow his two

sons, Tuncay and Ersin, to join him in Switzerland constituted

a violation of Article 8 (art. 8) of the Convention.

25. On 10 October 1994 the Commission declared the application

(no. 23218/94) admissible as regards the complaint under

Article 8 (art. 8) of the Convention concerning Ersin. It

declared the remainder of the application inadmissible.

In its report of 4 April 1995 (Article 31) (art. 31), it

expressed the opinion, by fourteen votes to ten, that there had

been a violation of Article 8 (art. 8). The full text of the

Commission's opinion and of the two dissenting opinions contained

in the report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the

printed version of the judgment (in Reports of Judgments and

Decisions - 1996-I), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

26. In their memorial the Government asked the Court to hold in

the instant case:

"primarily, that Article 8 (art. 8) of the Convention is

not applicable;

in the alternative, that there was no `interference' by the

Swiss public authorities with the applicant's exercise of

his right to enjoy a family life with his son Ersin;

in the further alternative, if such interference is held to

have occurred, that it was justified under paragraph 2 of

Article 8 (art. 8-2) of the Convention."

27. The applicant asked the Court to find that the conditions

laid down in Article 8 para. 2 (art. 8-2) of the Convention had

not been satisfied and to uphold the Commission's opinion on this

point.

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION

28. Mr Gül submitted that the Swiss authorities' refusal to

permit his son Ersin to join him in Switzerland had infringed his

right to respect for his family life. He relied on Article 8

(art. 8) of the Convention, which provides:

"1. Everyone has the right to respect for his ... family

life ...

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."

29. It is first necessary to determine whether there is a

"family life" within the meaning of Article 8 (art. 8).

30. The Government's primary submission was that Article 8

(art. 8) was not applicable, since in the instant case the

element of intention inherent in the concept of family life was

missing. Mr Gül had left Turkey when his younger son Ersin was

three months old, and had never attempted to develop a family

life in his country of origin. In addition, the focus of that

son's family life was in Turkey since, even after his mother's

departure, the child had been taken in as a member of his elder

brother's family. Furthermore, the fact that Mr and Mrs Gül's

daughter Nursal had been placed in a home in Switzerland showed

that they were in any event incapable of assuming their parental

responsibilities with regard to the boy.

31. Like the applicant, the Commission considered that the bond

between Mr Gül and his son Ersin amounted to "family life".

32. The Court reiterates that it follows from the concept of

family on which Article 8 (art. 8) is based that a child born of

a marital union is ipso jure part of that relationship; hence,

from the moment of the child's birth and by the very fact of it,

there exists between him and his parents a bond amounting to

"family life" (see the Berrehab v. the Netherlands judgment of

21 June 1988, series A no. 138, p. 14, para. 21, and the Hokkanen

v. Finland judgment of 23 September 1994, Series A no. 299-A,

p. 19, para. 54) which subsequent events cannot break save in

exceptional circumstances.

33. Admittedly, Mr Gül left Turkey in 1983, when his son Ersin

was only three months old (see paragraph 7 above); Mrs Gül left

Ersin in 1987 because of her accident (see paragraph 8 above).

However, after obtaining a residence permit on humanitarian

grounds in Switzerland in 1990, the applicant asked the Swiss

authorities for permission to bring the boy, who was then six

years old, to Switzerland (see paragraphs 11 and 13 above).

Subsequently, he repeatedly asked the Swiss courts to allow his

son to join him, before bringing his case before the Convention

institutions. Despite the distance, in geographical terms,

between them, the applicant has made a number of visits to

Turkey, the last of these being in July and August 1995 (see

paragraph 19 above). It cannot therefore be claimed that the

bond of "family life" between them has been broken.

34. Secondly, it is necessary to ascertain whether there was

interference by the Swiss authorities with the applicant's right

under Article 8 (art. 8).

35. Mr Gül submitted that the result in practice of the

authorities' persistent refusal to allow Ersin to join him in

Switzerland had been to separate the family and make it

impossible, owing to lack of sufficient financial resources, for

the parents to maintain regular contacts with their son, whereas,

according to the Court's case-law, contacts between parents and

child were of capital importance. In addition, the length of

time Mr Gül had lived in Switzerland, his invalidity and his

wife's ill-health made family reunion in Turkey an unrealistic

prospect, so that the family could only be brought together again

in Switzerland.

36. The Government submitted that the applicant could not rely

on a right to family reunion in Switzerland, as he had only a

humanitarian permit, which was not a true settlement permit but

merely a document authorising residence that could be withdrawn

from him. In addition, Switzerland had fully discharged the

positive obligations arising under Article 8 para. 1 (art. 8-1),

as the invalidity pension the applicant was in receipt of enabled

him to make occasional visits to Turkey. In any event,

Switzerland was in no way responsible for the situation the Gül

family was in. Lastly, the Swiss authorities were not under any

obligation to ensure that the applicant led an optimal family

life in Switzerland.

37. The Commission considered that where a parent wanted his

minor child to live with him, preventing this amounted to

interference with his right to respect for family life, and that

the family would need to be reunited in Switzerland rather than

in Turkey in view of Mr and Mrs Gül's particular circumstances.

38. The Court reiterates that the essential object of Article 8

(art. 8) is to protect the individual against arbitrary action

by the public authorities. There may in addition be positive

obligations inherent in effective "respect" for family life.

However, the boundaries between the State's positive and negative

obligations under this provision (art. 8) do not lend themselves

to precise definition. The applicable principles are,

nonetheless, similar. In both contexts regard must be had to the

fair balance that has to be struck between the competing

interests of the individual and of the community as a whole; and

in both contexts the State enjoys a certain margin of

appreciation (see, most recently, the Keegan v. Ireland judgment

of 26 May 1994, Series A no. 290, p. 19, para. 49, and the Kroon

and Others v. the Netherlands judgment of 27 October 1994,

Series A no. 297-C, p. 56, para. 31).

The present case concerns not only family life but also

immigration, and the extent of a State's obligation to admit to

its territory relatives of settled immigrants will vary according

to the particular circumstances of the persons involved and the

general interest. As a matter of well-established international

law and subject to its treaty obligations, a State has the right

to control the entry of non-nationals into its territory (see,

among other authorities, the Abdulaziz, Cabales and Balkandali

v. the United Kingdom judgment of 28 May 1985, Series A no. 94,

pp. 33-34, para. 67).

Moreover, where immigration is concerned, Article 8 (art. 8)

cannot be considered to impose on a State a general obligation

to respect the choice by married couples of the country of their

matrimonial residence and to authorise family reunion in its

territory. In order to establish the scope of the State's

obligations, the facts of the case must be considered (see,

mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment

previously cited, p. 34, para. 68, and the Cruz Varas and Others

v. Sweden judgment of 20 March 1991, Series A no. 201, p. 32,

para. 88).

39. In this case, therefore, the Court's task is to determine

to what extent it is true that Ersin's move to Switzerland would

be the only way for Mr Gül to develop family life with his son.

40. The applicant left Turkey in 1983 and made his way to

Switzerland, where he applied for political asylum; this

application was rejected by the Minister for Refugees in 1989

(see paragraph 10 above). His wife joined him in 1987 so that

she could receive medical treatment in Switzerland after a

serious accident. Their daughter Nursal was placed from birth

in a home in Switzerland and has remained there ever since (see

paragraph 9 above). In 1990 Mr and Mrs Gül were granted a

residence permit on humanitarian grounds and then sought

permission to bring their son Ersin to Switzerland. Ersin has

always lived in Turkey (see paragraph 19 above).

41. By leaving Turkey in 1983, Mr Gül caused the separation from

his son, and he was unable to prove to the Swiss authorities -

who refused to grant him political refugee status - that he

personally had been a victim of persecution in his home country.

In any event, whatever the applicant's initial reasons for

applying for political asylum, the visits he has made to his son

in recent years tend to show that they are no longer valid. His

counsel, moreover, expressly confirmed this at the hearing. In

addition, according to the Government, by virtue of a social

security convention concluded on 1 May 1969 between Switzerland

and Turkey, the applicant could continue to receive his ordinary

invalidity pension and half of the supplementary benefit he

receives at present in respect of his wife, his son Ersin and his

daughter Nursal if he returned to his home country (see

paragraph 23 above).

Mrs Gül's return to Turkey is more problematic, since it was

essentially her state of health that led the Swiss authorities

to issue a residence permit on humanitarian grounds. However,

although her state of health seemed particularly alarming in

1987, when her accident occurred, it has not been proved that she

could not later have received appropriate medical treatment in

specialist hospitals in Turkey. She was, moreover, able to visit

Turkey with her husband in July and August 1995 (see paragraph 19

above).

Furthermore, although Mr and Mrs Gül are lawfully resident

in Switzerland, they do not have a permanent right of abode, as

they do not have a settlement permit but merely a residence

permit on humanitarian grounds, which could be withdrawn, and

which under Swiss law does not give them a right to family

reunion (see paragraph 18 above).

42. In view of the length of time Mr and Mrs Gül have lived in

Switzerland, it would admittedly not be easy for them to return

to Turkey, but there are, strictly speaking, no obstacles

preventing them from developing family life in Turkey. That

possibility is all the more real because Ersin has always lived

there and has therefore grown up in the cultural and linguistic

environment of his country. On that point the situation is not

the same as in the Berrehab case, where the daughter of a

Moroccan applicant had been born in the Netherlands and spent all

her life there (see the Berrehab judgment previously cited, p. 8,

para. 7).

43. Having regard to all these considerations, and while

acknowledging that the Gül family's situation is very difficult

from the human point of view, the Court finds that Switzerland

has not failed to fulfil the obligations arising under Article 8

para. 1 (art. 8-1), and there has therefore been no interference

in the applicant's family life within the meaning of that

Article (art. 8-1).

FOR THESE REASONS, THE COURT

Holds by seven votes to two that there has been no breach

of Article 8 (art. 8) of the Convention.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

19 February 1996.

Signed: Rudolf BERNHARDT

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the

dissenting opinion of Mr Martens, approved by Mr Russo, is

annexed to this judgment.

Initialled: R. B.

Initialled: H. P.

DISSENTING OPINION OF JUDGE MARTENS,

APPROVED BY JUDGE RUSSO

A. Introduction

1. To my regret I have not been able to persuade the majority.

I remain unable to share their opinion. I will refrain from

arguing why, but just set out my own judgment. I trust that from

that judgment it will be sufficiently clear why I could not join

the majority.

2. What is at stake in this case is whether the refusal of the

Swiss authorities to grant the applicant's son Ersin

authorisation to reside in Switzerland with his parents violated

Switzerland's obligation under Article 8 (art. 8) to respect the

applicant's family life. Consequently, the circumstances

obtaining at the date of the (first) refusal of the requested

authorisation - that is 19 September 1990 - are decisive.

I will come back to these circumstances hereinafter (see

paragraph 14), but I note already here that on 19 September 1990

the applicant and his wife were living lawfully in Switzerland

having been granted a residence permit on humanitarian grounds

on 15 February 1990. Their son Ersin, who was born on

20 January 1983, was then 7 years old and lived in Turkey under

circumstances which still remain controversial (see paragraph 12

below).

3. One more preliminary remark with regard to the facts. The

Court has repeatedly stressed that it is not bound by the

Commission's findings of fact and remains free to make its own

appreciation in the light of all the material before it (see,

inter alia, the Cruz Varas and Others v. Sweden judgment of

20 March 1991, Series A no. 201, p. 29, para. 74). In doing so

we should, however, bear in mind our limitations and be

particularly careful not to take into account facts other than

those which are properly established. The Government have

contended - without basing their contention on specific facts -

that in 1983 the applicant left Turkey "of his own free will,

preferring to seek employment in Switzerland" thereby suggesting

that the applicant's assertion that he came to Switzerland as a

refugee was a falsehood. However, although the applicant sought

asylum on 26 April 1983, his application was only dismissed on

9 February 1989 together with that of his wife (which dated from

8 February 1988). The applicant appealed. This appeal was never

decided because the applicant withdrew his application, since -

as his counsel put it without being contradicted - pursuing the

application for asylum was incompatible with accepting the

residence permit on humanitarian grounds that had been offered

to him and his wife. Under these circumstances it is not for us

to simply base ourselves on the refusal at first instance or to

speculate, thirteen years hence, on the truth and relevance of

the assertions underlying the applicant's asylum request. True,

it is common ground that in the summer of 1995 the applicant

visited Ersin in Turkey and, although attracting notice by a

press interview, has apparently not experienced any

disagreeableness from the Turkish authorities. However, that

does not in itself warrant the conclusion that thirteen years

earlier, in 1983, the applicant had no relevant and sufficient

grounds for fleeing from persecution in Turkey and requesting

asylum in Switzerland.

B. Applicability of Article 8 (art. 8)

4. In its Abdulaziz, Cabales and Balkandali v. the United

Kingdom judgment of 28 May 1985, Series A no. 94, the Court

adopted the established doctrine of the Commission that although,

certainly, the right of aliens to enter or to remain in a country

is not as such guaranteed by the Convention, immigration controls

have to be exercised consistently with Convention obligations and

that, accordingly, the exclusion of a person from a State where

members of his family are living may raise an issue under

Article 8 (art. 8) (see paragraphs 59 and 60 of the judgment).

Since this judgment there has been a considerable evolution in

the Court's general doctrine on Article 8 (art. 8), but not on

this point. On the contrary, its subsequent case-law has solidly

confirmed the principle that, although Contracting States have,

as a matter of well-established international law, the right to

control the entry, residence and expulsion of aliens, that right

is subject to their obligations under the Convention, notably

those under Article 8 (art. 8) (see the Berrehab v. the

Netherlands judgment of 21 June 1988, Series A no. 138,

pp. 15-16, paras. 28-29; the Moustaquim v. Belgium judgment of

18 February 1991, Series A

no. 193, p. 19, para. 43; the Cruz Varas and Others judgment

cited above, p. 28, para. 70; the Vilvarajah and Others v. the

United Kingdom judgment of 30 October 1991, Series A no. 215,

p. 34, para. 102; the Beldjoudi v. France judgment of

26 March 1992, Series A no. 234-A, p. 27, para. 74; and the Nasri

v. France judgment of 13 July 1995, Series A no. 320-B, p. 25,

para. 41).

Accordingly, if on 19 September 1990 there existed "family

life" between the applicant and his son Ersin, the applicability

of

Article 8 (art. 8) to the facts of the present case cannot be

called into question. To the evolution in the Court's general

doctrine on Article 8 (art. 8) I will return in paragraph 7

below.

5. On 19 September 1990 there certainly was a family life

relationship between the applicant and Ersin. Since Ersin was

born from the legitimate marriage between the applicant and his

wife, it follows from the aforementioned Berrehab judgment

(p. 14, para. 21) that there is ipso facto such a relationship

(see also the Hokkanen v. Finland judgment of 23 September 1994,

Series A no. 299-A, p. 19, para. 54). True, as the Court

recognised in the Berrehab judgment, subsequent events may break

such a family life relationship, but only exceptional

circumstances can warrant the conclusion that the tie between a

parent and his or her child is severed. The mere fact that, at

the relevant date, the applicant had not seen his then

seven-year-old son for almost seven years is not sufficient to

produce this negative effect. In this context it is immaterial

whether the applicant left his wife and Ersin under fear from

political prosecution or purely for economic reasons.

C. Is Switzerland in breach of an obligation under Article 8

(art. 8)?

6. "According to the Court's well established case-law, 'the

mutual enjoyment by parent and child of each other's company

constitutes a fundamental element of family life'", as the Court

pointed out in paragraph 86 of the McMichael v. the United

Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55.

Consequently, decisions of State authorities hindering such

enjoyment in principle amount to an infringement of the State's

obligation to respect the family life of those concerned. It

follows that the refusal of the Swiss authorities to grant the

applicant's son Ersin authorisation to reside in Switzerland in

principle entails their responsibility under Article 8 (art. 8).

Before it is possible to assess whether the refusal was

justified, it is - alas - necessary to give some consideration

to the question whether or not Switzerland's obligation under

Article 8 (art. 8) is a positive or a negative one.

D. Positive or negative obligation?

7. The Court's case-law distinguishes between positive and

negative obligations. Negative obligations require member States

to refrain from action, positive to take action. The Court has

repeatedly stressed that the boundaries between the two types "do

not lend themselves to precise definition" (see, for instance,

the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290,

p. 19, para. 49). The present case well illustrates the truth

of this proposition since the question whether the Swiss decision

violated a positive or a negative obligation, if either, seems

hardly more than one of semantics: the refusal of the Swiss

authorities to let Ersin and his parents be reunited may be

considered as an action from which they should have refrained,

whereas it could arguably also be viewed as failing to take an

action which they were required to take, namely making a reunion

possible by granting the authorisation. If one takes the view

that, if there is a violation at all, it must be of a positive

obligation - a view that finds support in the aforementioned

Abdulaziz, Cabales and Balkandali judgment (see paragraph 4

above) - then one has to put up with the rather awkward

systematic inconsistency that exclusion of a person from a state

where his family lives does not fall into the same category of

breaches as expulsion of a person from a state where his family

lives: the former decision may be in breach of a positive

obligation under Article 8 (art. 8), whereas the latter may be

in breach of a negative obligation.

8. These and other difficulties in distinguishing between cases

where positive and cases where negative obligations are at stake

would be immaterial if both kinds of obligation were treated

alike. There was a time, however, when the Court's case-law did

treat them differently.

The Abdulaziz, Cabales and Balkandali judgment is a striking

instance: see paragraph 67 of that judgment. Under the pretext

of the vagueness of the notion "respect" in Article 8 (art. 8)

the Court held that its requirements will vary from case to case,

thus creating for itself the possibility of taking into account,

when establishing whether or not there is a positive obligation,

whether or not there is a consensus between member States and,

moreover, a wide margin of appreciation for the State concerned.

This approach has been rightly criticised both outside and inside

the Court. One of the main objections was that under this

doctrine, in the context of positive obligations, the margin of

appreciation might already come into play at the stage of

determining the existence of the obligation, whilst in the

context of negative obligations it only plays a role, if at all,

at the stage of determining whether a breach of the obligation

is justified.

The Court's doctrine on this point has, however, evolved

considerably since the Abdulaziz, Cabales and Balkandali

judgment. The aforementioned difference in treatment between

positive and negative obligations has gradually dwindled away.

The Court now holds that the applicable principles are similar,

adding that in both contexts regard must be had to the fair

balance that has to be struck between the competing interests of

the individual and the community (see, inter alia: the

above-mentioned Keegan judgment, loc. cit. (paragraph 7 above);

the above-mentioned Hokkanen judgment, p. 20, para. 55; and the

Stjerna v. Finland judgment of 25 November 1994, Series A

no. 299-B, p. 61, para. 39).

9. For present purposes it may, therefore, be assumed that it

makes no material difference whether a positive or a negative

obligation is at stake. The present doctrine notably implies

that the distinction between the two types of obligation has no

bearing on either the burden of proof or the standards for

assessing whether a fair balance has been struck.

It follows that the refusal of the Swiss authorities to

grant the applicant's son Ersin authorisation to reside in

Switzerland amounts to a violation of Article 8 (art. 8), unless

it is deemed justified under paragraph 2 of that

Article (art. 8-2) or under similar principles to those enshrined

therein.

I agree with the Commission that the requirements of "in

accordance with the law" and "legitimate aim" are fulfilled. The

applicant's argument that the refusal was not "in accordance with

the law" did not convince me. On the other hand I cannot help

saying that I consider the Government's attempt to embellish the

harsh, political objectives of their decision by pleading that

in the first place it was designed to serve Ersin's interests

rather hypocritical. The stress laid on financial considerations

makes it clear that the legitimate aim pursued was, if not only

then mainly, "the interests of the economic well-being of the

country".

It follows that in any event the decisive question is

whether the refusal of authorisation to reside in Switzerland was

proportionate.

E. Was the refusal proportionate?

10. Was it "necessary in a democratic society" to refuse the

applicant's seven-year-old son Ersin authorisation to come and

live in Switzerland with his parents? In other words, did that

decision of the Swiss authorities strike a fair balance between

the competing interests of the applicant, his wife and their son

on the one hand and those of the community as a whole on the

other?

11. In explaining the interests of the community the Government

have stressed that Switzerland has a very high percentage of

foreigners living within its borders. Hence, as counsel for the

Government put it at our hearing, "in Switzerland immigration is

a particularly sensitive subject". Against this background the

Government are, understandably, afraid of creating a precedent

and therefore emphasise - rightly - that what is at stake is

their right to control the entry of non-nationals into their

territory and that, accordingly, we should leave them a wide

margin of appreciation. In this context they stress that they

have only granted the applicant and his wife a temporary

residence permit on humanitarian grounds, that as a consequence

of that generosity they have already to bear the costs of

subsistence of the applicant, his wife and their daughter Nursal

and that it is therefore asking too much to expect them to do the

same for Ersin.

12. So much for the one scale of the balance. What lies in the

other? First and foremost, of course, a fundamental element of

an elementary human right, the right to care for your own

children. It was only natural that the applicant and his wife,

as soon as their residence situation was regularised, wanted

their seven-year-old son to live with them. There is a dispute

as to Ersin's living conditions, but I need not go deeply into

that. It suffices to note that the Government have not

convincingly established that those conditions were satisfactory,

let alone that, at the decisive moment, it was more in the

interest of Ersin to remain in Turkey than to be reunited with

his father and mother.

13. The Government do not argue that these are not weighty

interests. But they seek to diminish their relevance by

contending that the applicant - on whom, they add, is the burden

- has not shown that there are obstacles to re-establishing the

family - father, mother and Ersin - in Turkey. It is clear that

the Government are thus relying on paragraph 68 of the Abdulaziz,

Cabales and Balkandali judgment. However, they choose to ignore

the fact that the Court, in the first sentence of that paragraph,

explicitly distinguishes "the present proceedings" - i.e. the

cases of the three wives that were before the Court - from the

case of "immigrants who already had a family which they left

behind in another country until they had achieved settled status

in the United Kingdom" (= the country of settlement).

That is an important proviso, for it strongly suggests that

in a case of "immigrants who already had a family which they left

behind" - such as the present applicant - different norms should

be applied.

14. Which norms? The Court does not answer that question, but

it is natural to infer that it intended to make it clear that in

respect of such cases it might possibly hold that, in the context

of the issue of family reunion, the State of settlement should

respect the choice of the immigrants who have achieved settled

status there and, accordingly, must accept members of their

family which they had left behind for settlement.

In other words, contrary to the Government's suggestion, the

Abdulaziz, Cabales and Balkandali judgment is no authority for

their allegation that Switzerland may refuse Ersin entry -

although he is a member of the family which the applicant and his

wife left behind - on the mere ground that if the applicant and

his wife want family reunion they should go back to Turkey, there

being a violation of Switzerland's obligations under Article 8

(art. 8) only if the applicant proves that there are obstacles

to doing so or other special reasons why that could not be

expected of him.

On the contrary, the Abdulaziz, Cabales and Balkandali

judgment supports the proposition that in cases where a father

and mother have achieved settled status in a country and want to

be reunited with their child which for the time being they have

left behind in their country of origin, it is per se

unreasonable, if not inhumane to give them the choice between

giving up the position which they have acquired in the country

of settlement or to renounce the mutual enjoyment by parent and

child of each other's company which constitutes a fundamental

element of family life.

15. It remains, of course, to be considered whether the latter

principle applies in the present case, where the applicant has

not "achieved settled status" in Switzerland, in so far as he and

his wife have not been granted a "settlement permit", but have

to base their right of residence on a permit which has, in

principle, a temporary character and, consequently, a lower legal

status than a settlement permit.

It cannot be denied that, from a point of view of State

interest - that is from a point of view of immigration and

residence - there is a good case for answering this question in

the negative. However, the European Court of Human Rights has

to ensure, in particular, that State interests do not crush those

of an individual, especially in situations where political

pressure - such as the growing dislike of immigrants in most

member States - may inspire State authorities to harsh decisions.

As we stressed in paragraph 29 of our aforementioned Berrehab

judgment (see paragraph 4 above), the Court must examine cases

like this not only from the point of view of immigration and

residence, but also with regard to the mutual interests of the

applicant, his wife and Ersin.

Whether he came as a refugee (as we must presume (see

paragraph 3 above)) or as a job seeker (as the Government

allege), at the material time the applicant had been living in

Switzerland for seven years and his wife for four years. During

these years he had been legally employed, apparently by the same

employer, until an unspecified date in 1990 when he fell ill (see

paragraph 7 of the Court's judgment). The Swiss authorities have

taken this time element into consideration, since their decision

to grant a residence permit was partly based on the time the

applicant had been living in Switzerland (see paragraph 11 of the

Court's judgment). Rightly so, for, generally speaking, it may

be assumed that after a period of between three and five years

immigrants become rooted in the country of settlement. By then

they have formed new social ties there and have definitively

begun to adapt themselves to their new homeland. In assessing

the humaneness of the choice with which the Swiss authorities

confronted the applicant and his wife this element, the fact that

they have become integrated in their new homeland - an element

which, incidentally, is closely connected with their private life

- is of far more importance than the formal status of their

permit.

There are some further, specific elements to be taken into

account.

The first is that for the applicant and his wife the choice

in question was not only between renouncing their son or

renouncing the position which they had acquired in Switzerland,

but also between renouncing their son Ersin or their little

daughter Nursal who was being educated in a home in Switzerland

and whose interests almost certainly would have required that she

should be left behind.

The second is that the applicant's wife is dependent on

medical care which she can certainly get in Switzerland, whilst

it is in debate to what extent, if at all, she will be able to

get it in Turkey.

The third is that the mere fact that the Turkish authorities

did not immediately arrest the applicant when he entered the

country as a visitor does not imply that he would not get into

trouble if he tried to settle there again on a permanent basis.

The fourth is that the applicant and his wife deserve

compassion: whilst his wife had been suffering from epilepsy

since 1982 and had a terrible accident in 1987, the applicant

himself became disabled in 1990.

Under these circumstances it could not reasonably be

required of the applicant and his wife that in order to be

reunited with Ersin they should leave Switzerland and return to

Turkey.

It follows that a proper balance was not achieved between

the interests involved, that the refusal of the Swiss authorities

is disproportionate and, as such, not necessary in a democratic

society. I thus conclude that there was a violation of Article 8

(art. 8).