Denied residency permit for family reunification based on insufficient family dependency

Facts

Tatiana Kisileva, a Russian national born in 1945, applied for a residence permit in Sweden in 2014 for family reunification with her adult daughter and granddaughter, who had moved to Sweden in 2012. She argued that due to her advanced age, chronic illnesses, and depression, she was economically and emotionally dependent on her daughter. Her application was denied by the Swedish Migration Agency in 2015, a decision upheld by the Migration Court (2016) and Migration Court of Appeal (2016) on the grounds that she did not meet the criteria for exceptional ties under Swedish law. The authorities did not dispute her bond with her daughter but determined that the level of dependency required for reunification was not met.

The author claims that the State party’s action violated her rights under article 2 (1), 17 and 26, claiming that the arbitrary denial of the residency permit interfered with her right to family life and that the migration system discriminates based on national origin.

Admissibility

The State party argued that the Committee could not consider the case because the European Court of Human Rights (ECtHR) had already examined it, and under article 5 (2) (a) of the Optional Protocol, the Committee is not allowed to consider cases that are being or have been examined by another international body. The Committee reaffirms its jurisprudence that if the ECtHR’s inadmissibility decision is based on a substantive assessment, the matter is considered “examined” under article 5 (2) (a). However, when the ECtHR provides no reasoning or clarification, the case cannot be deemed to have been assessed on its merits. Since the ECtHR’s decision in this instance lacked such reasoning, the Committee was not precluded under article 5 (2) of the Optional Protocol to consider the communication.

The Committee declared the claim under article  2 (1) and 26 to be inadmissible. Regarding article 2 (1), the Committee recalled its constant jurisprudence that the provision lays out general obligations and cannot itself substantiate a claim under article 5 (2) Optional Protocol. Concerning article 26, the author failed to dispel the State party’s objection that she did not exhaust all local remedies nor sufficiently substantiate the claim under article 26. The Committee found the claim under article 17 sufficiently substantiated and, therefore, admissible.

Merits

The Committee found that the State party, by rejecting the application for family reunification, arbitrarily interfered in the right to family life under article 17. While the State’s immigration laws pursue a legitimate objective, the key issue was whether the authorities’ assessment was in line with the Covenant’s principles and reasonable in the specific circumstances of the case. The Committee found that Swedish authorities failed to adequately consider several critical factors, including Kisileva’s advanced age, deteriorating health, and limited mobility, which hindered her ability to travel and maintain a close relationship with her daughter and granddaughter. Additionally, the decision did not properly account for her economic dependence on her daughter, who was willing and able to support her financially and provide accommodation. Given these shortcomings, the Committee concluded that the authorities did not sufficiently evaluate Kisileva’s circumstances, rendering the decision unreasonable under article 17 of the Covenant.

Recommendations

The State party should:

• (a) provide the author with an effective re-evaluation of her application for family reunification, taking into account the Committee’s findings in the present case; and
• (b) take all necessary measures to prevent similar violations from occurring in the future

Implementation

Deadline for implementation: 25 September 2024