The case of Tatiana Kiselyova v. Sweden. Views of the UN Human Rights Committee dated May 23, 2024. Communication No. 3245/2018.
In 2018, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Sweden.
The author claimed that the State party had violated her rights under articles 2 (paragraph 1), 17 and 26 of the Covenant: her application for a residence permit based on the right to family reunification (her daughter was a permanent resident of Sweden) was arbitrarily rejected by the national migration authorities. The Committee found a violation of article 17 of the Covenant.
The Committee's legal position: In the context of the interpretation of the term "family", the purpose of the Covenant is to ensure that, for the purposes of article 17, this concept is interpreted broadly and includes all those who are part of the family as it is understood in the society of the State party concerned. The Committee notes that there may be cases where a State party's refusal to allow a family member to remain on its territory would constitute interference in that person's family life. The Committee recalls that a State party may, in accordance with its immigration rules, deny the right of entry or impose other restrictions in pursuit of a legitimate aim. However, these discretionary powers are not absolute. In particular, the Committee points out that, according to article 17 of the Covenant, any interference in family affairs must meet all the conditions set out in paragraph 1 of this article. Thus, even legally permissible interference must be consistent with the provisions, aims and objectives of the Covenant and in any case must be justified in the specific circumstances of the case (paragraph 7.3 of the Considerations).
It is for the authorities of the participating States to assess the facts and evidence or ensure the application of domestic law in a particular case, except in cases where it can be proven that such assessment or application was clearly arbitrary or represents an obvious error or denial of justice, or if the court in any other way violated its the obligation of independence and impartiality (paragraph 7.4 of the Considerations).
The Committee's assessment of the factual circumstances of the case: It is noted that the State party's decision to reject the author's application for family reunification constituted interference with family life within the meaning of article 17 of the Covenant. Thus, in the Committee's view, the question arose as to whether this interference was contrary to article 17 of the Covenant. The Committee stated that domestic legislation has a legitimate aim of ensuring compliance with the immigration laws of the State party. However, the Committee has drawn attention to the fact that, in addition to pursuing a legitimate aim, it is also necessary to consider whether the assessment of the author's application for family reunification carried out by the State party's authorities was consistent with the provisions, aims and objectives of the Covenant and whether it was justified in the circumstances (paragraph 7.5 of the Views).
The Committee concluded that, in assessing the compliance of the author's relationship with her daughter with the requirement of special family ties, due to the domestic law of the State party, the immigration authorities did not properly take into account a number of circumstances relating to article 17 of the Covenant. It was about the author's advanced age, which in the foreseeable future will not allow her to travel to visit her daughter and granddaughter, which will negatively affect the family's ability to maintain close relationships, the author's health and her limited ability to move;.... The author is economically dependent on his daughter, and the author's daughter has the means to financially support the author in the State party and to provide her with housing. In view of the above, the Committee acknowledged that the national authorities had failed to properly assess the author's individual circumstances, in particular the reasonableness of the decisions of the national authorities in the light of the aims and objectives of the Covenant, as required by article 17 of the Covenant (paragraph 7.6 of the Views).
The Committee's conclusions: The facts presented revealed a violation by the State party of article 17 of the Covenant (paragraph 8 of the Views).