Tanda-Muzinga v France: ECHR 10 Jul 2014

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Delays and lack of transparency in family reunification proceedings: violation
Facts – In the year 2000 the applicant, a Congolese national, was granted refugee status under the mandate of the Office of the United Nations High Commissioner for Refugees in Cameroon (UNHCR Cameroon). According to his certificate of refugee status, he was accompanied by his wife, who also had such a certificate, and by his children Vanessa and Michelle. The couple had a third child, Benjamin, who was born in Yaounde (Cameroon) in 2004, but the applicant was absent when his son was born, having left Cameroon in order to apply for asylum in France, where he obtained refugee status in 2007. He then applied for long-stay visas for his wife and his three children for the purposes of family reunification. In May 2008, having received no news since completing the application to the French Consulate in Cameroon three months previously, the applicant commenced legal proceedings. It was only in August of the same year, during a hearing, that he learnt that the birth certificates of Benjamin and Michelle were being contested. In the context of another application the Government argued that the applicant had abandoned his family. At the hearing concerning the applicant’s appeal on points of law to the Conseil d’Etat, the ‘public rapporteur’ suggested in his closing arguments, which were not available in writing, that the applicant should seek judicial rectification in Cameroon of the children’s civil status documents. Following difficulties encountered by the applicant’s wife in obtaining such rectification, the Consulate again refused to issue the visas. Further checks carried out in 2010 established that Benjamin’s birth certificate had been authenticated but that the doubtful authenticity of the birth certificate produced for Michelle – which had been double-checked – had prompted the consular authorities to maintain their refusal to issue visas to the whole family. After the Court had given notice of the application to the Government, the urgent-applications judge ordered a stay of execution of the implicit refusal, on the ground that no reasons had been given. In November 2010 UNHCR Cameroon’s lawyer sent the applicant and the French authorities the original copy of a judgment of the Yaounde tribunal de grande instance of 3 June 2010 reissuing Michelle’s birth certificate. In a letter dated January 2011 the Government informed the Court that the French consular authorities, in December 2010, had issued the long-stay visas requested by the applicant’s wife and children.
Law – Article 8
(a) Admissibility – The applicant’s family had been able to join him once the visas were issued. However, this had taken three and a half years after his request for family reunification. The national authorities had not explicitly recognised, either in the domestic proceedings or before the Court, that there had been a violation of the applicant’s Convention rights during that period. Moreover, the decision to issue the visas had not been followed by redress for the purposes of the Court’s case-law. Accordingly, the applicant could still claim to be a ‘victim’ within the meaning of Article 34 of the Convention.
In so far as the family had been reunited, the substantive facts complained of by the applicant had ceased to exist. It remained to be ascertained whether the possibility of leading family life following the issuing of the visas was sufficient to erase the possible consequences of the situation of which the applicant complained. The French authorities had not issued the visas enabling the family to be reunited until three and a half years after the application for family reunification and following six years of separation. During that time the applicant had taken all the necessary legal steps to establish his parent-child relationship with Michelle and Benjamin in order to overcome the obstacles to the reunification of the family, which had also suffered an ordeal as a result of the lengthy separation following his departure from Cameroon. In view of that long period of uncertainty and of the serious consequences of the separation for the applicant and his family, the Court considered that the effects of a possible violation of the Convention had not been sufficiently redressed for it to find that the matter had been resolved within the meaning of Article 37 – 1 (b) of the Convention. Furthermore, in the instant case, the applicant’s children had been minors and had been separated from the applicant for over six years in difficult circumstances following their flight from the Democratic Republic of Congo. This had necessarily entailed serious consequences for which their subsequent reunification had not been sufficient to compensate. The Government’s request for the application to be struck out of the list of cases was therefore also rejected.
(b) Merits – The national authorities were faced with a delicate task when having to assess the authenticity of civil status documents, on account of the difficulties arising in some cases from failings on the part of the civil status authorities in some of the migrants’ countries of origin, and the associated risks of fraud. The national authorities were in principle best placed to establish the facts on the basis of the evidence gathered by or submitted to them, and they therefore had to be allowed a measure of discretion in that regard. Nevertheless, in view of the decision to grant the applicant refugee status and the subsequent recognition of the principle of family reunification, it had been of crucial importance that the visa applications be examined promptly, attentively and with particular diligence. In the circumstances of the case the respondent State had been under an obligation, in order to respond to the applicant’s request, to institute a procedure that took into account the events that had disrupted and disturbed his family life and had led to his being granted refugee status. The Court therefore decided to focus its examination on the quality of that procedure and to do so from the standpoint of the ‘procedural requirements’ of Article 8 of the Convention.
The Court observed at the outset that the applicant’s family life had been discontinued purely because he had fled, out of a real fear of persecution. Accordingly, and contrary to the consistent assertions of the Ministry concerned during the urgent proceedings and the proceedings on the merits, the applicant could not be held responsible for the separation from his family. The arrival of his wife and his children, who were aged three, six and thirteen at the time of the request for reunification and were themselves refugees in a third country, had therefore been the only means by which family life could resume.
It had been essential for the national authorities to take into consideration the applicant’s vulnerability and his particularly difficult personal history, to pay close attention to his arguments of relevance to the outcome of the case, to inform him of the reasons against reunification of the family and, lastly, to take a rapid decision on the visa applications. Owing to the fact that the explanations and reasons that were required by law had not been provided until September 2008, that is, fifteen months after his first request for family reunification, the applicant had not been in a position to understand the precise objections to his plans. The competent authorities, which had been aware of the application to the Cameroonian courts to have Michelle’s birth certificate reissued, had not seen fit to enquire as to the progress of that application when they refused for the second time to issue the visas. Following a further check in 2010 they had eventually found the legal parent-child relationship between the applicant and Benjamin to be established, although this had been contested in the same way as the relationship with his daughter Michelle. The applicant had encountered numerous difficulties in participating effectively in the procedure and putting forward ‘other elements’ of proof of a parent-child relationship, although he had declared his family ties from the start of his asylum application and OFPRA had certified the composition of the family in documents that were deemed to be authentic, immediately after his application for family reunification. Furthermore, UNHCR, convinced of the authenticity of their case, had assisted the applicant and later his family from the time of their flight from the Democratic Republic of Congo until the conclusion of the proceedings. The Ministry of Foreign Affairs of Cameroon had also approved the travel papers of the applicant’s wife, which stated that she was accompanied by her three children, and had subsequently approved Michelle’s travel papers. The applicant had also adduced other evidence of his continuing contact with his family. This had not been without relevance; the applicant could reasonably have expected that it would be seen as attesting to his past family life and that the national authorities would give it due consideration. Lastly, it had taken almost three and a half years for the authorities to cease contesting the parent-child relationship between the applicant and his children. This was excessive, in view of the applicant’s particular circumstances and what was at stake for him in the verification procedure.
All the above factors demonstrated the distressing and apparently hopeless situation of the applicant. The accumulation and protracted nature of the numerous hurdles he encountered during the procedure had left him in a state of severe depression, after he had already undergone traumatic experiences that had been the reason for granting him refugee status.
In view of all these considerations, and notwithstanding the margin of appreciation left to the State in the matter, it was clear that the national authorities had not given due consideration to the applicant’s specific situation and that the decision-making process had not been attended by the guarantees of flexibility, promptness and effectiveness required in order to secure his right to respect for his family life under Article 8 of the Convention. Accordingly, the State had omitted to strike a fair balance between the applicant’s interests and its own interest in controlling immigration.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 EUR in respect of non-pecuniary damage.

2260/10 – Legal Summary, [2014] ECHR 1047
Bailii
European Convention on Human Rights

Human Rights, Family

Updated: 22 December 2021; Ref: scu.537552