The applicants, Ms. Z.H. and Mr. R.H. are Afghan nationals who were born in 1996 and 1992 respectively and live in Geneva (Switzerland). The case concerns the applicants’ asylum claims. The applicants entered Switzerland, via Italy, and, presenting themselves to the authorities as a married couple, applied for asylum in September 2011. According to the couple they had married in a religious ceremony in Iran in 2010. At the time, Ms Z.H. was 14 years old and Mr R.H. was 18 years old.
Their asylum request was rejected in December 2011 and March 2012, the migration authorities considering that under European Union law (the “Dublin II Regulation”), Italy was responsible for examining their asylum application as it was the first EU state that they had entered. In the subsequent appeal proceedings, the domestic courts upheld the rejection of their asylum request, finding that the couple had failed to submit a certificate of marriage and that in any event their religious marriage could not be validly recognised in Switzerland because the law in Afghanistan prohibited marriage for women under the age of 15. Furthermore, the couple’s marriage was incompatible with Swiss law on grounds of public policy given that sexual intercourse with a child under the age of 16 was a crime in Switzerland. As such, Ms Z.H. could not be qualified as a member of Mr R.H’s family under EU law and they could not claim a right to family life under the European Convention. Mr R.H. was expelled to Italy on 4 September 2012 but returned to Switzerland illegally a few days later. Relying in particular on Article 8 (right to family life), the applicants complain that the expulsion of Mr R.H. to Italy in 2012 breached their right to respect for family life.
Press release ECHR 374 (2015) 02/12/2015