H.K. AND A.K. v. SWITZERLAND

THE FACTS

The applicants, father and son, are citizens of former Yugoslavia

and were born in 1948 and 1979, respectively. The first applicant is

a construction labourer, the second applicant an apprentice. Before

the Commission the applicants are represented by Mr D. Ehrenzeller, a

lawyer practising at Teufen in Switzerland.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

In 1979 the applicant's wife bore twins, both with the name Avni,

the second twin being the second applicant.

In 1989 the applicants' family consisted of the first applicant,

his wife, the three children A., S. and M., and the twins Avni. The

first applicant, who had been living in Switzerland since 1977, was

joined in 1989 by his family, including the first, but not the second,

twin brother Avni. The child A. later died in Switzerland.

According to the applicants' submissions before the Commission,

upon the family's departure to Switzerland in 1989, the second twin

brother Avni, the second applicant, remained with his grandmother with

whom he had close relations. The subsequent decision of the Federal

Court of 15 November 1996 stated that according to the applicants'

submissions the second applicant had been brought to the grandmother

shortly after his birth in 1979.

In Switzerland, the first twin brother Avni was afflicted by

leukaemia. In 1991 it transpired that he was terminally ill, he was

therefore brought back to Yugoslavia where he died on 24 April 1991.

For unexplained reasons, the Swiss authorities were not immediately

informed of the first twin brother's decease.

In 1993 the first applicant obtained a renewal of his right to

domicile (Niederlassungsbewilligung) which extended to the children A.,

S. and M., a further daughter Ar., and the twin brother Avni.

The surviving second twin brother Avni, the second applicant, had

meanwhile terminated his schooling in Yugoslavia. As his grandmother

was for health reasons no longer in a position to take care of him, the

second applicant travelled to Switzerland in June 1994 with the Alien's

identity card (Ausländerausweis) of the deceased first twin brother.

Upon his arrival, the second applicant went to the Swiss authorities

with the document certifying his father's right to domicile and a

photo. The latter was stuck into the document. The second applicant

then commenced an apprenticeship.

Upon a control by the police in October 1994, the second

applicant claimed that he was the twin brother of the deceased Avni and

that he was also called Avni.

Criminal proceedings were then instituted against the applicants

on suspicion of having circumvented regulations of the Aliens' Police

(Fremdenpolizei). The proceedings against the second applicant were

eventually terminated, whereas the first applicant was fined 400 Swiss

Francs (CHF).

On 14 December 1994 the Aliens' Police ordered the second

applicant to leave Switzerland before 2 January 1995. The first

applicant then filed a request to let the second applicant join the

family in Switzerland. This request was dismissed by the Aliens'

Police on 27 March 1995 and, upon appeal, by the Government of the

Canton of St. Gallen (Regierungsrat) on 5 September 1995.

The applicants' administrative law appeal (Verwaltungsgerichts-

beschwerde) was dismissed by the Federal Court (Bundesgericht) on

15 November 1996, the decision being served on 18 December 1996.

In its decision the Federal Court noted that according to S. 4

of the Federal Act on Residence and Domicile of Aliens (Bundesgesetz

über Aufenthalt und Niederlassung der Ausländer), the authorities were

free to decide whether or not to grant a residence allowance to

foreigners. As a result, the foreigner and his relatives had in

principle no right to be granted a residence authorisation. Insofar

as S. 17 para. 2 of the Federal Act envisaged the right of children

under eighteen years of age to join their family in Switzerland, this

presupposed links within a cohabiting family.

The Court considered that according to the applicants'

submissions the second applicant's grandmother had taken care of him

shortly after his birth. The second applicant had, therefore, been

separated from his original family. Subsequently, the separation had

been maintained; thus it transpired from a family document of 1988 that

the second applicant was not listed as a family member. The decision

continued:

<Translation>

"The second applicant grew up with his grandmother and his great

uncle in Yugoslavia. He lived there until he finished compulsory

schooling. When questioned by the police on 30 November 1994 he

stated that he had hesitated to travel to Switzerland, as he did

not want to leave alone in Yugoslavia his grandmother who was

seriously ill; thus, he had shown that he was closely attached

to his grandmother/mother. Immediately after his entry in

Switzerland the second applicant commenced training as a

construction apprentice with the H. company in D. Thus, it

cannot be dismissed out of hand that his residence in Switzerland

also - or even mainly - served the purpose of education and

employment."

In respect of Article 8 of the Convention the decision stated:

<Translation>

"The first applicant has been living as a seasonal worker in

Switzerland since 1977. Since 1989 his wife and children have

been living here. The second applicant remained with his foster

parents in former Yugoslavia. According to his own submissions

the first applicant had "given (his second son Avni) as a

present" to a rich uncle who had married his widowed mother. The

second applicant's contacts with his parents during his youth

were limited to occasional visits and presents ... Thus, the

second applicant lived separated from the original family until

he travelled to Switzerland when he was fifteen years old.

Accordingly, a juvenile person, who has spent his whole childhood

and his youth as a member of another family, cannot at present

maintain an overriding private interest in joining his family.

Even if he continues to live in Yugoslavia, it will be possible

to continue the mutual contacts and to maintain the relationship

between the second applicant and his original family. An

application for a tourist visa can be filed for visits in

Switzerland."

COMPLAINTS

The applicants complain under Article 8 of the Convention of the

Swiss authorities' refusal to let the second applicant join the first

applicant. This should be permitted until the second applicant is

18 years of age. The Swiss authorities no longer doubt that the second

applicant is a twin and descends from the first applicant.

The second applicant moved, when he was 10, to his grandmother

who did not want to stay alone. After he finished his schooling the

question arose as to whether he should join his family in Switzerland.

It transpired that the grandmother would, for health reasons, no longer

be able to provide family related security to the second applicant, and

that the child A. would soon die. Thus, the first applicant decided

to bring the second applicant to Switzerland. As the first applicant

can neither read nor write, it should be accepted that he thought that

the second applicant was included in his application for a prolongation

of his right to domicile.

The applicants point out that the Swiss authorities who are

interested in reducing the number of foreigners in Switzerland should

not benefit from the fact that two children of the first applicant have

died.