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EGMR, Urteil vom 06.11.2012 - 22341/09 - M21294

Ein Gesetz, das bezüglich des Rechts auf Familienzusammenführung zwischen Flüchtlingen differenziert, die vor der Asylbeantragung geheiratet haben, und solchen, die erst danach geheiratet haben, verstößt gegen Art. 14 in Verbindung mit Art. 8 EMRK.

Schlagwörter: Flüchtling, Heirat, Familienzusammenführung, Familiennachzug, Ehegattennachzug, Zeitpunkt der Eheschließung, anerkannter Flüchtling, EGMR, Hode und Abdi, Gleichheitsgrundsatz, Ungleichbehandlung, Gleichbehandlung, Eheschließung,
Normen: EMRK Art. 8, EMRK Art. 14,


In light of the above considerations, the Court concludes that the applicants in the present case, as a refugee who married after leaving his country of permanent residence and the spouse of such a refugee, enjoyed “other status” for the purpose of Article 14 of the Convention.

The Court notes that the Government did not dispute that the applicants had been treated differently from students and workers and their spouses, or from refugees and their spouses who married before leaving their country of permanent residence. They submitted, however, that they had not been in an analogous situation to any of these groups.

The Court notes that the requirement to demonstrate an “analogous situation” does not require that the comparator groups be identical. Rather, the applicants must demonstrate that, having regard to the particular nature of their complaints, they had been in a relevantly similar situation to others treated differently (Clift v. the United Kingdom, cited above, § 66). In the present case, the applicants are complaining that at the relevant time the Immigration Rules did not permit refugees to be joined in the United Kingdom by spouses where the marriage took place after the refugee had left the country of permanent residence. The Court therefore considers that refugees who married before leaving their country of permanent residence were in an analogous position as they were also in receipt of a grant of refugee status and a limited period of leave to remain in the United Kingdom. In fact, the only relevant difference was the time at which the marriage took place. Moreover, as students and workers, whose spouses were entitled to join them, were usually granted a limited period of leave to remain in the United Kingdom, the Court considers that they too were in an analogous position to the applicants for the purpose of Article 14 of the Convention.

Finally, the Court must consider whether or not the difference in treatment was objectively and reasonably justified. The Government submitted that it was, because the aim had been to provide an incentive to students and workers to come to the United Kingdom. With regard to refugees, on the other hand, the Government’s aim had been to honour their international obligations without providing any further incentives for them to choose the United Kingdom over other possible countries of refuge. The Government argued that this had been a policy decision, which was within their wide margin of appreciation in this area. In this regard, the Government drew the Court’s attention to the fact that the case did not concern any of the “suspect” grounds of discrimination, such as sex or race.

The Court recalls that a difference in treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (Burden, cited above, § 60; and Carson, cited above, § 61). The scope of this margin will vary according to the circumstances, the subject-matter and the background. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (Stec and Others v. the United Kingdom, [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006).

The Court accepts that offering incentives to certain groups of immigrants may amount to a legitimate aim for the purposes of Article 14 of the Convention. However, it observes that this “justification” does not appear to have been advanced in the recent domestic cases cited by the applicants. While the Court recognises that the Government were estopped from arguing this point in A (Afghanistan), it notes that in the later case of FH (Post-flight spouses) Iran the Upper Tribunal (Asylum and Immigration) found no justification for the particularly disadvantageous position that refugees had found themselves to be in when compared to students and workers, whose spouses were entitled to join them. In fact, the Tribunal went so far as to call on the Secretary of State for the Home Department to give urgent attention to amending the Immigration Rules so as to extend them to the spouses of those with limited leave to remain as refugees. The Immigration Rules were subsequently amended in the manner suggested by the Tribunal.

In light of the above, the Court does not consider that the difference in treatment between the applicants, on the one hand, and students and workers, on the other, was objectively and reasonably justified.

Furthermore, the Court sees no justification for treating refugees who married post-flight differently from those who married pre-flight. The Court accepts that in permitting refugees to be joined by pre-flight spouses, the United Kingdom was honouring its international obligations. However, where a measure results in the different treatment of persons in analogous positions, the fact that it fulfilled the State’s international obligation will not it itself justify the difference in treatment.

The Court therefore finds that there has been a violation of Article 14 of the Convention read together with Article 8. It notes, however, that the situation giving rise to the breach no longer exists as the Immigration Rules have subsequently been amended (see paragraphs 13, 17 and 74, above). [...]