El Ghatet v. Switzerland (no. 56971/10) [Article 8], 8 November 2016

Tuesday, November 8, 2016

On 8 November 2015, the European Court of Human Rights gave its judgment in El Ghatet v. Switzerland (no. 56971/10) concerning the refusal of the Swiss authorities to permit the family reunification of an Egyptian son with his father, who has Egyptian and Swiss nationality.

The case relates to an Egyptian national, who applied for asylum in Switzerland leaving his son behind in Egypt. While his asylum application was rejected, the father obtained a residence permit and afterwards Swiss nationality after having married a Swiss national. The couple have a daughter and eventually divorced. The father’s first request for family reunification with his son was accepted in 2003 but eventually his son returned to Egypt. The father’s second request for family reunification in 2006 was rejected. According to the Swiss Federal Supreme Court, the applicant’s son had closer ties to Egypt where he had been cared for by his mother and grandmother. Moreover, the father should have applied for family reunification immediately after arriving in Switzerland. The father (“first applicant”) and son (“second applicant”) submitted an application to the ECtHR complaining that the Swiss authorities’ refusal of their request for family reunification violated their right to respect for family life as provided in Article 8 ECHR.

The Court first considers that it would be unreasonable to ask the first applicant to relocate to Egypt to live together with the second applicant there, as this would entail a separation from the first applicant’s daughter. As the present case concerns the reunification of the child with his father, who lived with his mother, there is no presumption that reuniting with the father was per se in the best interest of the child. Whereas the first applicant has the right of custody pursuant to Egyptian law, the Court does not find this to be the sole decisive factor. It is further noted that the second applicant had strong social, cultural and linguistic ties to his country of origin and was cured for by both his mother and grandmother. Moreover, the second applicant had reached the age of 15 when the request for family reunification was lodged and there were no other major threats to his best interests in the country of origin.      

Based on these facts, the Court finds that no clear conclusion can be drawn whether or not the applicants’ interest in a family reunification outweighed the public interest of the respondent State in controlling the entry of foreigners into its territory. Nevertheless, the Court notes that the domestic court have merely examined the best interest of the child in a brief manner and put forward a rather summary reasoning. As such the child’s best interests have not sufficiently been placed at the center of its balancing exercise and reasoning contrary to the ECHR, the UN CRC and the Constitution of the Swiss Confederation. The Court therefore finds a violation of Article 8 ECHR.

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Best interest of the child
Family member
Family reunification
Family unity (right to)