MURADELI v. RUSSIA - 72780/12 - Chamber Judgment [2015] ECHR 368 (09 April 2015)

In the case of Muradeli v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Elisabeth Steiner, President,
          Khanlar Hajiyev,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 17 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 72780/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Robert Petrovich Muradeli (“the applicant”), on 10 October 2012.

2. The applicant was represented by Mr A. Bogoroditskiy, a lawyer practising in Penza. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that the decision on his administrative removal from Russia had violated his right to respect for his private and family life.

4. On 19 December 2013 the application was communicated to the Government. The President also decided to grant the case priority under Rule 41 of the Rules of Court.

5. The Georgian Government were informed of their right to intervene in the proceedings in accordance with Article 36 § 1. They chose not to avail themselves of that right.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1969 in Gori, Georgia.

7. According to the applicant, he first arrived in Penza, the Russian Federation, in 1992. Since his arrival took place shortly after the disintegration of the USSR, there were no entry requirements to comply with.

8. According to the Government, the applicant lived in Penza between 1993 and 1995.

9. In 1994 the applicant married L., a Russian national, and in September 1995 they had a son, G. According to the applicant, at some stage they sold their flat. Later they bought another flat. A loan for that flat was taken by the applicant’s wife, L., and is to be repaid by 2027.

10. In 1996 the applicant together with his family moved to Gori, Georgia, where until 1999 he worked at the Security Department of the Ministry of Internal Affairs.

11. According to the applicant, between 1996 and 1999 he regularly went to Russia to visit his parents-in-law. In May 1999 L. and G. moved back to Penza as L. had to return to her work after the maternity leave. The applicant also moved back to Penza in August 1999. He then regularly went to Georgia to visit his mother. As before 2000 there was no visa system between Russia and Georgia, he did not have to obtain any documents in this regard. After the visa system had been put in place, the applicant’s wife had to issue him an invitation so that he could legally reside in Russia. After one of his stays in Georgia he moved back to Russia on the basis of this invitation and thereafter lived together with his family in Penza.

12. According to the Government, having left for Georgia in 1996, the applicant returned to Russia on 18 May 2001 on the basis of a visa valid until 18 August 2001. Between 1999 and 2001 he still worked at the Georgian Ministry of Internal Affairs. After his return to Russia in 2001 his visa was renewed on a number of occasions.

13. On 25 December 2001 the applicant applied for a residence permit.

14. On 17 June 2002 the Penza Region Directorate of Internal Affairs granted the application.

15. On 31 July 2002 the applicant was issued with a residence permit valid until 10 August 2004, the date of expiry of his Georgian passport.

16. On 27 April 2006 the applicant was found in breach of Article 18.8 of the Code of Administrative Offences on account of his failure to apply for the renewal of his residence permit, which had expired one year and eight months earlier.

17. On 24 May 2006 the applicant applied for the renewal of his residence permit.

18. On 8 August 2006 his residence permit was renewed until 10 August 2009.

19. On 27 October 2006 the applicant’s residential registration in Penza was cancelled upon his request and he obtained residential registration at a different address in the Penza Region until 10 August 2009, the date of expiry of his residence permit.

20. On 14 February 2009 the Federal Migration Service notified the applicant at the address of his registration in the Penza Region that he had to apply for the renewal of his residence permit six months prior to the expiry of the valid residence permit. As it transpired later, the applicant had moved to a different address in Penza and did not receive the notification.

21. According to the applicant, the authorities refused to accept his application for renewal of the residence permit submitted in due time because his birth certificate was not enclosed.

22. The applicant reapplied for residence permit on 27 July 2009, that is two weeks before the expiry of his valid residence permit.

23. On 29 July 2009 the applicant was found to have violated Article 18.8 of the Code of Administrative Offences on account of his failure to submit annual notifications of his continuous stay in Russia in breach of section 8 § 6 of the Foreigners Act.

24. On 5 August 2009 the Penza Region Directorate of the Federal Migration Service refused to renew the applicant’s residence permit. The decision stated that the applicant had failed to apply for the renewal in due time, despite the reminder sent to him on 14 February 2009, and had not specified any reasons for his failure. Furthermore, he had been twice found guilty of an administrative offence, on 27 April 2006 and 29 July 2009.

25. On 6 August 2009 the Penza Region Directorate of the Federal Migration Service sent the decision to the applicant with an accompanying letter which stated that upon expiry of his residence permit his residential registration would be cancelled and he would no longer have the right to live in Russia. Therefore, he had to leave Russia within fifteen days. However, the applicant could re-enter Russia and, after having obtained registration in the immigration register, reapply for a temporary residence permit. The applicant appealed to a court.

26. Also on 6 August 2009 the applicant was found in breach of Article 18.8 of the Code of Administrative Offences on account of his failure to inform the authorities of the change of his address as required by the legislation on immigration.

27. On 27 October 2009 the Leninskiy District Court of Penza upheld the decision of the Penza Region Directorate of the Federal Migration Service of 5 August 2009. The court dismissed, inter alia, the applicant’s argument that he had first applied for the renewal of his residence permit in February 2009, but his application had not been accepted as he had had to renew his Georgian passport prior to applying. The court noted, firstly, the lack of evidence that the applicant had applied for the renewal of his residence permit in February 2009, and, secondly, that in his application of 27 July 2009 he had only stated that he had not been familiar with the procedure as the only explanation of his failure to apply in due time.

28. On 22 December 2009 the Penza Regional Court upheld the first-instance court’s decision on appeal.

29. Between 10 August 2009 and March 2011 the applicant lived in Russia without a residence permit.

30. On 3 March 2011 the Penza Region Migration Service found the applicant to have violated Article 18.8 of the Code of Administrative Offences on account of his continued failure to leave Russia after the expiry of his residence permit on 10 August 2009 and imposed on him a fine in the amount of 3,000 Russian roubles (RUB, approximately 67 euros).

31. The applicant did not appeal against this decision, and it became final on 15 March 2011.

32. On 11 March 2011 the applicant was granted transit visa valid until 21 March 2011 so that he could leave Russia legally.

33. According to the applicant, he went to Georgia to have his birth certificate reissued.

34. In the meantime the applicant’s wife applied to the Penza Region Directorate of the Federal Migration Service to issue an invitation for the applicant to stay in Russia.

35. By a decision of 1 April 2011 her application was refused on the ground of the applicant having been three times found guilty of an administrative offence on account of breach of immigration rules and numerous other times on account of other administrative offence involving breach of traffic rules. For these reasons the issue of an invitation for the applicant to enter Russia was refused until 14 September 2013.

36. It appears that the applicant’s wife resubmitted her application which was again refused on 23 May 2011 on the same grounds. The letter of the same date accompanying the decision reiterated that the issue of an invitation for the applicant to enter Russia had been refused until 14 September 2013.

37. On 6 October 2011 the applicant entered Russia through the border with Belarus. Belarus had no visa requirements for Georgian nationals. According to the applicant, passport control officers on the Belarussian-Russian border explained to him that, having entered Russia from Belarus, he could stay in Russia without a visa for two or three weeks.

38. On 24 October 2011, in the course of an identity check conducted by the police, the applicant failed to present any documents that would authorise his stay in Russia. On the same date the Oktyabrskiy District Court of Penza found him guilty of an administrative offence under Article 18.8 of the Code of Administrative Offences on account of a breach of immigration regulations, fined him with RUB 3,000 and ordered his administrative removal from Russia. The court also ordered the applicant’s placement in custody until his removal and noted that the decision could be appealed against within ten days after its announcement. In the decision the court noted the particular circumstances in which the offence had been committed and further stated as follows:

“In order to determine the type ... of administrative penalty, the judge takes into account the concrete circumstances of the offence ... committed, [the applicant’s] financial and family situation, his personality, [the fact that] in 2011 he was found guilty of an administrative offence on account of a breach of regulations on foreign nationals’ stay in the Russian Federation, and, furthermore, that from 10 August 2009 to 11 March 2011 he was living in the Penza Region without [registration] in the migrants’ register and without a residential registration either, and avoided leaving the Russian Federation.

The court is unaware of any circumstances that would prevent [the applicant’s] removal from Russia, given that he had been ... previously found guilty of an administrative offence in 2011 and the issue of an invitation for him to enter Russia is refused until 14 September 2013.”

39. As the applicant did not appeal within the set time-limits, the decision became enforceable.

40. The applicant was deported on 8 November 2011.

41. The applicant subsequently appealed against the decision of 24 October 2011. In his statement of appeal he submitted, in particular, that he had been married to L. since 1994 and that they had a son born in 1995. The decision on his administrative removal disrupted his family life. In particular, his son, who was sixteen at the time, needed his father at his side. The applicant’s removal from his family also placed a heavy burden on his wife, who not only had to raise their son on her own, but also to pay back the bank loan for the flat they had bought together. The applicant argued that the decision was in breach of Article 8 of the Convention. He also noted that he had failed to comply with the time-limits to apply for the renewal of his residence permit which had expired on 10 August 2009 as his application had been refused for his failure to enclose his birth certificate, which he had not had with him in Russia (see paragraphs 18 and 21 above).

42. On 18 April 2012 the Penza Regional Court upheld the decision of 24 October 2011, having found that the Oktyabrskiy District Court had duly taken into account the information about the applicant, his financial and family situation, the previous administrative offence, the fact that between 10 August 2009 and 11 March 2011 he had lived in Russia without being duly registered, and that the issue of an invitation for him to enter Russia was refused until 14 September 2013. The court also took note of the fact that, according to the applicant’s explanations provided on 24 October 2011, he had come to Russia for certain business matters and was going to leave once they were solved.

43. The applicant submitted a request for supervisory review.

44. On 16 November 2012 the Supreme Court of Russia upheld the decisions of 24 October 2011 and 18 April 2012 under supervisory review. It noted, in particular, that the penalty imposed on the applicant was in accordance with the law and proportionate for the purposes of Article 8 of the Convention, since the courts had taken into consideration the nature of the offence, his financial and family situation and other circumstances.

II. RELEVANT DOMESTIC LAW

A. Foreigners Act

45. Until 2002 foreign nationals with temporary resident status were not required to apply for a residence permit. Their stay in Russia was lawful as long as their visa remained valid. On 25 July 2002 Law no. 115-FZ on the Legal Status of Foreign Nationals in the Russian Federation (“the Foreigners Act”) was passed. It introduced the requirement of residence permits for foreign nationals.

46. Section 5 § 2 of the Act provides that a foreign national should leave Russia after the expiry of the authorised period, except when on the date of expiry he has already obtained an authorisation for extension or renewal, or when his application for extension and the relevant documents have been accepted for processing.

47. A foreign national married to a Russian national living in Russia is entitled to a three-year residence permit (разрешение на временное проживание, section 6 §§ 1 and 3 (4)).

48. The local department of the Federal Migration Service examines an application for a three-year residence permit within six months. It collects information from the security services, bailiffs’ offices, tax authorities, social security services, health authorities and other interested bodies who must, within two months, submit information about any circumstances within their knowledge which might justify refusal of a residence permit. On receipt of such information the local department of the Federal Migration Service or the local police decides whether to grant or reject the application for a three-year residence permit (section 6 §§ 4 and 5).

49. A three-year residence permit may be refused only in exhaustively defined cases, such as where the person has been found guilty of an administrative offence relating to an infringement of residency regulations on two or more occasions within the same year (section 7 § 1 (7)). In addition, no three-year residence permit may be issued for five years following a person’s administrative removal or deportation from Russia (section 7 § 1 (3)).

50. While the three-year residence permit remains valid, a foreign national may apply for a renewable five-year residence permit (вид на жительство). Such applications are only possible after the foreign national has lived in Russia for at least a year on the basis of the three-year permit (section 8 §§ 1-3).

51. A foreign national who has the status of a permanent resident in Russia has to submit annual notifications to the migration authorities so as to confirm that he or she continues living in Russia. The notifications can be submitted in person, by post or by electronic means of communication (section 8 § 6).

52. In decision no. 86-AD05-2 of 7 December 2005, the Supreme Court of Russia considered that it was incumbent on a national court to examine whether enforcement of a deportation order was compatible with Article 8 of the Convention. Given that section 7 of the Foreigners Act prevented a deportee from applying for a temporary residence permit for five years, “a serious issue [could] arise as to an interference with [the persons’] right for respect of their family life”. In another decision, the Supreme Court varied its reasoning, stating that enforcement of a deportation order “results in the violation of fundamental family ties and impedes the family’s reunification” (decision no. 18-AD05-13 of 24 January 2006). The Supreme Court subsequently considered that a deportation order should be based on considerations which confirm the necessity of such a measure “as the only possible way of ensuring a fair balance between public and private interests” (decision no. 86-AD06-1 of 29 March 2006).

B. Code of Administrative Offences

53. Article 18.8 of the Code of Administrative Offences provides that a foreign national who infringes the residence regulations of the Russian Federation, including by living on the territory without a valid residence permit or by non-compliance with the established procedure for residence registration, will be liable to an administrative fine of RUB 2,000 to 5,000 and possible administrative removal. Under Article 28.3 § 2 (1) a report on the offence described in Article 18.8 is drawn up by a police officer. Article 28.8 § 2 requires the report to be transmitted immediately to a judge. Article 23.1 § 3 provides that the determination of any administrative charge that may result in removal from the Russian Federation must be made by a judge of a court of general jurisdiction. Article 30.1 § 1 guarantees the right to appeal against a decision on an administrative offence to a court or to a higher court.

C. Entry and Leave Procedures Act

54. Section 27 § 2 of Federal Law no. 114-FZ on the Procedure for Entering and Leaving the Russian Federation (“the Entry and Leave Procedure Act”) provides that a foreign national who has been deported or subjected to administrative removal from Russia may not re-enter the territory for five years following his deportation or administrative removal.

III. RELEVANT INTERNATIONAL MATERIALS

55. For a summary of the relevant instruments of the Council of Europe, including the Committee of Ministers Recommendations Rec(2000)15 concerning the security of residence of long-term migrants and Rec(2002)4 on the legal status of persons admitted for family reunification, and of Parliamentary Assembly Recommendation 1504 (2001) on the non-expulsion of long-term immigrants, see Üner v. the Netherlands [GC], no. 46410/99, §§ 35-38, ECHR 2006-XII.

THE LAW

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

56. The applicant complained under Articles 8 and 13 of the Convention that the decision on his administrative removal from Russia had violated his right to respect for his private and family life. He argued, in particular, that the severity of the punishment, which had disrupted his family life, had been disproportionate to the gravity of the administrative offence of which he had been found guilty. The Court will examine the complaint under Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

A. The parties’ submissions

1. The Government’s submissions

57. The Government contested that argument. They argued that whereas the decision of 24 October 2011 had constituted an interference into the applicant’s right to respect for family life, it had been in accordance with the law, as it was based on the Foreigners Act and the Code of Administrative Offences. Furthermore, it was proportionate and “necessary in a democratic society” for the following reasons.

58. Firstly, the Government noted that in his explanations provided on 24 October 2011, when the applicant had failed to present documents authorising his stay in Russia, he had stated that he had come to Russia for certain business matters and was going to leave once they were solved. He did not mention either his son, or his family and his wish to be reunited with it. In the Government’s view, the applicant did not have close family relations with either his wife or his son. The Government also contested the applicant’s assertion that he had failed to apply in time for the renewal of his residence permit because he could not enclose his birth certificate with the application, having pointed out that he had explained this failure to the Federal Migration Service by his lack of knowledge of the applicable procedure. The Government found likewise implausible the latter statement as the applicant had previously applied for a residence permit and therefore must have been familiar with the procedure.

59. With a reference to Palanci v. Switzerland, no. 2607/08, § 58, 25 March 2014, the Government pointed out that the applicant was unemployed at least until 2009. He stated so in the records of administrative offences and other official documents and noted his wife’s salary as his only source of income. In the records of administrative offences of 2009 the applicant stated that he was a director general of company Geo-Agro, owned by his wife, with a salary of RUB 5,000, although he had never applied for a work permit. In the records of administrative offences of 2010-11 the applicant again stated that he was unemployed. Therefore, in the Government’s view, the applicant’s assertion that he was helping his wife to pay back the loan was unsubstantiated. Furthermore, they pointed out that nothing precluded him from supporting his family financially while living in Georgia.

60. The Government also expressed surprise over the applicant’s submission that in 2012 he had obtained Armenian nationality since, according to Armenian laws, in order to become eligible for the grant of citizenship one must continuously live in the country for the past three years, whereas the applicant had only left Russia in March 2011.

61. The Government further argued that, by contrast to Shala v. Switzerland, no. 52873/09, § 55, 15 November 2012, the applicant had not arrived in Russia at a young age. He arrived at the age of twenty-four having completed all his studies in Georgia where he had obtained two university degrees. Therefore, the Parliamentary Assembly Recommendation 1504 (2001) on the non-expulsion of long-term immigrants did not apply to him. Furthermore, the applicant’s parents and sister kept living in Georgia and he maintained social, cultural and linguistic connections with his home country. As regards the fact that, according to the Russian law, the applicant could not re-enter Russia within five years after his removal, in the Government’s view this did not constitute an excessively long period, especially given that the applicant had previously left Russia for a similar period in the 1990s of his own accord (see paragraph 12 above).

62. The Government also provided the Court with extracts of nine cases where domestic courts had not ordered administrative removal of persons found guilty of an administrative offence as, in the courts’ view, their removal would violate their right to respect for family life. They further stated that in the applicant’s case the domestic courts duly took into account his family situation and the nature of the administrative offence, as well as the previously committed administrative offences, and reached a reasonable conclusion that his removal was necessary for the protection of the public interest so as to secure compliance with immigration laws.

63. The Government referred to the Court’s jurisprudence to the effect that where immigration is concerned, Article 8 of the Convention 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 this territory (see Gül v. Switzerland, 19 February 1996, § 38, Reports of Judgments and Decisions 1996-I, and Pejcinoski v. Austria (dec.), no. 33500/96, 23 March 1999). In their view, it was primarily the applicant’s duty, and not that of the Russian authorities, to take care of his family and ensure that they lived together. To that end he had to comply with the relevant laws and regulations so as to obtain in due time the authorisation required for his stay in Russia. Yet, despite the numerous breaches of the immigration regulations committed by the applicant, the authorities had for a long time refrained from ordering his administrative removal. The decision on the applicant’s administrative removal was taken after he had been found guilty of an administrative offence on account of a breach of immigration laws for the fifth time. Therefore, the applicant must have realised that his failure to rectify his conduct would result in his removal. Furthermore, the applicant had been found guilty of an administrative offence on account of a breach of traffic rules sixteen times during his stay in Russia. Therefore it was only after the applicant had demonstrated particular defiance of the Russian law and order that such measure was taken. Accordingly, the applicant’s removal was proportionate and “necessary in a democratic society” as required by Article 8 of the Convention.

2. The applicant’s submissions

64. The applicant argued, firstly, that the interference was not “in accordance with the law”. He pointed that in the decision of 24 October 2011 the court failed to specify either the manner or the time-limits for the applicant’s removal which it had to do in accordance with the legislation then in force. Furthermore, in the decision it was stated that it could be appealed against within ten days after its announcement, whereas according to the law then in force this should have been ten days after the delivery of a copy of the decision to the applicant. Also, according to the applicant, the record of the administrative offence was drawn up with certain procedural shortcomings.

65. The applicant further contended that the interference had not been “necessary in a democratic society”. He pointed out, firstly, that in the hearings of 24 October 2011 and 18 April 2012 the courts did not examine either his wife or his son. They did not pay due attention to the applicant’s family life and his financial situation. In particular, they disregarded (i) the fact that he had first arrived in Russia back in 1992 and had a family there; (ii) that at the relevant time his son was sixteen; (iii) that neither his wife nor his son spoke Georgian, they had no connections with Georgia and, therefore, could not move there with the applicant; (iv) that in October 2011 he had entered Russia in good faith having been misled by passport control officers in Belarus. The applicant also submitted that, although while living in Russia he had not been officially employed, he had been helping his wife with their family enterprise Geo-Agro. According to him, his wife could not on her own successfully run the enterprise, which was in dire straits, and therefore his staying in Russia was essential for his being able to provide financial support for his family.

66. The applicant provided the Court with photographs made in 1996-2005 showing him with his family and various residents of the Penza Region so as to demonstrate his family ties and involvement in social life in Russia. He also enclosed copies of several letters sent by a number of enterprises and local authorities of the Penza Region to the Federal Migration Service asking to authorise his entry into Russia. The applicant maintained that he was a good citizen, who had two university degrees, respected public order, had made all the efforts to duly regularise his stay in Russia and had only failed because of difficulties with obtaining certain documents from Georgia, which had been complicated by the rupture of diplomatic relations between Russia and Georgia in 2008. The applicant further submitted that, having lived in Russia for fifteen years and thus being a long-term immigrant, he had lost any ties with Georgia and after his deportation had to live in Belarus. In 2012 he obtained citizenship of Armenia, which constituted further evidence of the absence of any ties with Georgia. In sum, the applicant contended that the decisions of the Russian courts were in breach of Article 8 of the Convention.

B. The Court’s assessment

1. Admissibility

67. Insofar as the applicant alleges that there were certain procedural irregularities in the decision of the Oktyabrskiy District Court of Penza of 24 October 2011 (see paragraph 64 above), the Court notes that this aspect of the complaint has not been raised on appeal before the Penza Regional Court (see paragraphs 41-42 above). Accordingly, the applicant failed to exhaust available domestic remedies in this respect. It follows that this part of the application should be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

68. The Court notes that the remainder of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) General Principles

69. While the essential object of Article 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. 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 Jeunesse v. the Netherlands [GC], no. 12738/10, § 106, 3 October 2014).

70. Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Jeunesse, cited above § 107).

(b) Application to the present case

71. Turning to the facts of the present case, the Court notes that the parties disagree on certain dates concerning the applicant’s stay in Russia. However, the Court finds these differences immaterial for the examination of the present case. Thus, the applicant first arrived in Russia in either 1992 or 1993. In 1994 he married L., a Russian national, and in 1995 they had a son, G. In 1996 the applicant together with his family moved to Gori, Georgia. His wife and son returned to Russia in 1999, and the applicant soon followed them. In 2001 the applicant applied and in 2002 was granted a residence permit valid until 2004. In 2006 his residence permit was renewed until 10 August 2009.

72. The Court further notes that the subsequent renewal of the residence permit was refused by the federal Migration Service on 5 August 2009 on account of the applicant’s failure to apply for the renewal in due time. He was also instructed to leave Russia upon the expiry of his valid residence permit. However, this would not preclude him from re-entering Russia and applying for a new residence permit once he had complied with the requirements of the immigration regulations. The decision was upheld in the final instance by the Penza Regional Court on 22 December 2009. Nevertheless, the applicant chose to remain in Russia illegally, and on 3 March 2011 he was found guilty of an administrative offence on this account. The applicant did not appeal against this decision. After a transit visa valid between 11 and 21 March 2011 had been issued to him, he left Russia.

73. The Court notes that the applicant’s complaints do not focus on the above proceedings but only on the following events. On 6 October 2011 the applicant entered Russia through the border with Belarus. On 24 October 2011, in the course of the police identity check, he failed to present any documents authorising his stay in Russia. Consequently, he was found guilty of an administrative offence, fined with RUB 3,000, and his administrative removal was also ordered. The applicant was deported on 8 November 2011, and the decision of 24 October 2011 was upheld on appeal by the Penza Regional Court on 18 April 2012.

74. Given that the applicant had left Russia in March 2011 and subsequently tried to re-enter, the present application concerns not the situation of a settled migrant but that of an alien seeking admission to a host country - albeit in the applicant’s case after many years of actual residence (see Jeunesse, cited above, § 105). Therefore, the question in the present case is whether, having regard to the circumstances as a whole, the Russian authorities were under a duty to authorise the applicant’s stay in Russia. The instant case thus concerns not only family life but also immigration and is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation under Article 8 of the Convention (see Ahmut v. the Netherlands, 28 November 1996, § 63, Reports 1996-VI, and Jeunesse, cited above, § 105).

75. As regards the applicant’s family life, the Court recalls that he married L. in 1994 and that their son, G., born in 1995, was sixteen in 2011, when the applicant was deported. It further notes that, when in the course of the police identity check on 24 October 2011 the applicant failed to present any documents authorising his stay in Russia, he explained that, believing that he could enter Russia from Belarus without a visa, he came to Russia for certain business matters and was going to leave once they were solved. The applicant did not mention his family as the reason for his coming to Russia. Nor was his family referred to in the proceedings before the Oktyabrskiy District Court of Penza which found him guilty of the breach of immigration regulations on the same date. The applicant mentioned his family in Russia for the first time only in the appeal proceedings before the Penza Regional Court. This leads the Court to give weight to the Government’s doubts as to whether the applicant still maintains strong ties with his family in Russia.

76. In any event, whereas the applicant argued that his wife and son, neither of whom spoke Georgian, would not be able to join him in Georgia, the Court notes that, according to the applicant’s submissions, after his deportation from Russia he chose to settle in Belarus. Russian being one of the two official languages in Belarus, the Court sees no insurmountable obstacles for the applicant’s family to join him in the country of his choice.

77. As regards factors of immigration control, the Court observes that since 2009 the applicant repeatedly violated Russian immigration regulations. In particular, he was found in breach of the following administrative offences (see paragraphs 16, 23, 26, 30 and 38 above): (i) on 27 April 2006 on account of his failure to apply for the renewal of his residence permit which had expired on 10 August 2004; (ii) on 29 July 2009 on account of his failure to notify the authorities of his address in Russia; (iii) on 6 August 2009 on account of a breach of the rules on residential registration; (iv) on 3 March 2011 on account of his failure to leave Russia upon the expiry of his residence permit; and (v) on 24 October 2011 on account of a violation of the regulations on entry to the Russian Federation.

78. However, despite his repeated breaches of the immigration regulations, the applicant was given ample opportunities to regularise his stay in Russia. In particular, after he had failed to apply for the renewal of his residence permit in 2004 and had been found guilty of an administrative offence on this account in April 2006, a new residence permit was issued to him in August 2006, despite his request for renewal being two years overdue (see paragraph 18 above). After the applicant again failed to apply in time for the renewal of his residence permit in 2009, this time the renewal was refused. Nevertheless, although the applicant was ordered to leave Russia upon the expiry of his valid residence permit, the immigration authorities specifically stated that he could re-enter Russia after having complied with the immigration regulations (see paragraph 25 above). However, the applicant chose to disregard the order and to remain illegally in Russia. When the authorities eventually became aware of this and on 3 March 2011 found him guilty of an administrative offence for his failure to leave Russia after the expiry of his residence permit, they did not order his administrative removal, which would entail a five-year ban on re-entry, but provided him with a transit visa so that he could leave Russia legally (see paragraph 32 above).

79. Furthermore, having eventually left Russia in March 2011, the applicant did not apply to Russian consulate authorities abroad with a view to obtain permission to re-enter, but chose to illegally cross the border from Belarus (see paragraph 37 above). In this regard the Court dismisses as implausible the applicant’s allegations that on the Belarussian-Russian border he was misled by the passport control officers who told to him that, having entered Russia from Belarus, he could stay in Russia without a visa for several weeks (see paragraphs 37 and 65 above). The applicant could not have been unaware that Georgian nationals needed a visa to enter Russia. Furthermore, having been ordered to leave Russia on account of a breach of immigration rules, he also must have realised that he would need a specific authorisation to re-enter. The applicant thus knowingly acted in breach of the immigration rules and procedures. Therefore, it was only when he was for the fifth time found guilty of an administrative offence, and this time of a particularly serious nature as it concerned illegal entry to the country, that on 24 October 2011 the Russian authorities ordered his administrative removal.

80. Moreover, whereas, according to the applicant, throughout his stay in Russia he was helping his wife to run their family enterprise, he never applied for a work permit and in the official documents he stated that he was unemployed. Furthermore, from the documents presented by the Government it follows that during his stay in Russia the applicant was sixteen times found guilty of an administrative offence on account of a breach of traffic rules (see paragraph 63 above).

81. Taking into account the above numerous breaches of immigration rules and other administrative offences, the Court considers that the applicant’s conduct demonstrated consistent disregard of the laws, regulations and public order of the host country.

82. Having regard to the principles set out in paragraphs 69-70 above and the circumstances of the present case, the Court considers that the Russian authorities were not under a duty to authorise the applicant’s stay in Russia.

83. There has accordingly been no violation of Article 8 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 8 of the Convention insofar as it concerns the administrative removal of the applicant from Russia admissible, and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 9 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Elisabeth Steiner
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> MURADELI v. RUSSIA - 72780/12 - Chamber Judgment [2015] ECHR 368 (09 April 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/368.html Cite as: [2015] ECHR 368