Conference Presentation
Reference
Habitual residence in cross-border family relationships (in contexts of international migration and international protection of adults)
BUMBACA, Vito
BUMBACA, Vito. Habitual residence in cross-border family relationships (in contexts of international migration and international protection of adults). In:
Journée doctoraletransnationale de Droit international privé et Droit comparé
, Université de Lausanne et Institution suisse de droit comparé, 22 mai, 2019
Available at:
http://archive-ouverte.unige.ch/unige:124638
Disclaimer: layout of this document may differ from the published version.
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Habitual residence in cross-border family relationships (in contexts of international migration and international protection of adults)
« Journée doctorale transnationale de Droit international privé et Droit comparé », Université de Lausanne
& Institut Suisse de Droit Comparé, 22 Mai 2019, Vito Bumbaca1
Chères et chers Professeur-e-s, Chères et chers Collègues,
J’aimerais remercier l’Université de Lausanne, en particulier le Professeur Andrea Bonomi, ainsi que toutes et tous les coorganisatrices et coorganisateurs de cette « journée doctorale transnationale » – l’intitulé intrigue énormément – de m’avoir donné l’opportunité de présenter le sujet de ma thèse doctorale. Je remercie également Madame Alexandra Becheikh pour son accompagnement pendant le processus organisationnel.
Cette journée permet aux jeunes doctorantes et doctorants, dont je fais partie, non seulement d’intégrer les feedbacks des expertes et experts de prestige qui siègent dans cette salle également prestigieuse, mais aussi d’acquérir une préparation nécessaire relative aux modalités de présentation en vue d’une prochaine soutenance. Je suis, donc, très honoré d’avoir été choisi parmi les intervenant-e-s de ce programme d’envergure.
Je me permets de poursuivre ma présentation en anglais qui est la langue de rédaction de ma thèse – langue qui m’a été également et aimablement attribuée par les organisatrices et les organisateurs de cette très belle initiative.
I. New challenges concerning children:
C. is a minor born in Greece from an Afghan Father and an Iranian mother who met in Greece as asylum seekers. C. lives at the time of this presentation in Switzerland after the following facts2:
The father applied for asylum in Greece and was granted a temporary refugee permit for three years. The mother subsequently applied for asylum in Greece and her application is still under process. C.’s parents got married at the Afghan embassy (the marriage seems to be a ‘forced marriage’, therefore not valid as against the Swiss public order) and then moved back to Greece. Six months after the birth of C., the family moves to Finland to reapply for asylum therein and where they live for 7 months. The Finnish authorities refuse their application (no evidence is found with regard to a potential right of appeal against that decision).
Consequently, the family moves to Sweden where part of the father’s family lives, and after one week the family moves to Norway where the sister of a friend of the father’s lives. The father returns to Sweden (and then moves to Greece). Some time after, the mother and child move to Switzerland where C. and she apply for asylum. The father files a return application to Greece under the 1980 Hague Convention on International Child Abduction, which is held by the Swiss Federal Tribunal (TF). However, the Administrative Federal Tribunal (TAF) does not allow the mother and child’s return to Greece.
1 Assistant Lecturer at the Department of Private International Law of the University of Geneva. This text is a shortened version of the original presentation of the author.
2 Tribunal fédéral, IIe Cour de droit civil, Arrêt du 23 mai 2018 en la cause de C. contre A., B. – 5A_121/2018.
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A. Habitual residence at the time of wrongful removal within the meaning of the 1980 Hague Convention on International Child Abduction
The question of habitual residence, notably C.’s habitual residence at the time of wrongful removal is relevant. The Swiss judge had to determine whether C.’s habitual residence was established in Greece before his relocation to Finland and, thereafter, to Switzerland. The TF took into consideration as main criteria to determine C.’s habitual residence his place of birth, his father’s temporary status of refugee in Greece, his mother’s application under process in Greece, the degree of stability related to the working situation of his father in Greece, the absence of status (residency or refugee permit) in Finland. The TF has not considered relevant the family intent to relocate to Finland, the living duration in Finland, the father’s abuse against the mother as a synonym of vulnerability and urgent protection, the long delays in granting refugee status (even temporary) to C.’s mother in Greece, the two-year living period of C. and his mother in Switzerland (following an allegedly wrongful removal).
In addition to that, the TF has not considered the following important procedural aspects: the lack of evidence of wrongful retention from Greece to Finland due to the ‘common parental intent’ to apply for asylum in Finland; the retained international responsibility in accordance with international refugee and migration laws (Dublin III Regulation) by the Finnish migration authorities which have refused the application instead of establishing direct cooperation with the Greek authorities first responsible for the family refugee application in order to initiate procedures relating to ‘take back request’ as in accordance with the Dublin III Regulation;
the lack of international cooperation between the Swiss and Greek authorities in order to assess whether it would have been more appropriate to determine international responsibility upon the Swiss authorities (where C. lived for two years).
There is no definition of habitual residence within the 1980 Hague Convention (hereinafter HC-1980).
Habitual residence is a factual notion determined through the circumstances of each specific and isolated case. In order for the HC-1980 to apply, C. should have established his habitual residence in Greece and should have been considered as a ‘victim’ of a wrongful removal from Greece to Switzerland. The fact that the whole family was temporarily established in Greece by virtue of the father’s three-year refugee status only, and the fact that the family agreed to move altogether to Finland with no wrongful retention, all leaves a somewhat ‘legal vacuum’ concerning the de facto establishment of C.’s habitual residence in Greece and his wrongful removal.
B. Physical presence in accordance with the Dublin III Regulation
The Dublin III Regulation is applicable for the mechanisms relating to the determination of international responsibility over asylum applications. The TF has excluded this Regulation from C.’s habitual residence anamnesis. However, the TF held that since C.’s father had been granted a three-year temporary refugee permit, and due to the fact that C. and his mother had applied before the Greek authorities, then Greece was responsible for their asylum application and therefore habitual residence could only have been established in Greece.
The Dublin III Regulation provides that in the case of ‘illegal or irregular migration’, the place where the first asylum application is filed should be responsible for the international protection of applicants (article 13.1).
This procedure should anyway end after twelve months (article 13.1) and could be derogated in presence of specific factors such as the impossibility of guaranteeing protection or a consequent stay of five months or more in another Member State (article 13.2). The connecting factor used by the Dublin III Regulation is physical presence. The same connecting factor is used by the Brussels IIA Regulation and HC-1996 with regard to refugee children, and HC-2000 with regard to refugee adults, as well as those children and adults whose habitual residence cannot be determined.
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However, the Dublin III Regulation provides that in cases where no asylum decree is obtained (or no application is yet filed) by applicants in the ‘first-seised’ State (or State of first arrival) and the same applicants apply for asylum (or no application is yet filed) before the authorities of a ‘second seised’ State (or State of second physical presence), the two States should establish cooperation in order to initiate a ‘transfer of responsibility’ so-called ‘take-back and take-charge request’. Take-charge ‘transfer’ request should take place within three months (two months if the responsibility of another State is confirmed through EURODAC) from the filing of the asylum application (article 21) and be accepted or refused by the requested State within two months (an additional one month is granted in view of a complex request) from receipt of such request (article 22). Take-back ‘transfer’ request envisages two scenarios: a) where there are two applications (one in the State of first arrival) and the transfer request should take place within two months (three months if the responsibility of another State is confirmed through EURODAC) from the filing of the new asylum application (article 23); b) where there is only one application in the State of first arrival and the transfer request should take place within two months from the proof of the request filed in the State of first arrival obtained through EURODAC (article 24). Acceptance or refusal by the requested State should occur within one month (two weeks if the responsibility of another State is confirmed through EURODAC) from receipt of such request (article 25).
As a last element, the CJEU held that, as provided in recital 13 and article 6 of the Dublin Regulation, the child’s best interests should be paramount in any decision taken about his or her application.3 In the case of C., he lived for two years, together with his mother, in Switzerland. He lived in Greece only six months after his birth. Furthermore, it is clear that his parents did not want to establish habitual residence in Greece because their wish was to file an asylum application (which they did) in Finland. Acts of abuse committed by the father to the mother were repeatedly recalled during the proceedings in Switzerland and no guarantees were provided by the Greek authorities that C. would have continued living with his mother nor, at that time, in a stable family environment.
C. Absence of C.’s habitual residence and wrongful removal
A potential lack of factors establishing C.’s habitual residence and the absence of wrongful removal would have caused the ineffective operation of HC-1980. Along with the foregoing, the Swiss authorities should have been considered as competent over the international protection of C. by virtue of his physical presence and best interests in accordance with the Dublin III Regulation, Brussels IIA Regulation (from a Greek point of view) and HC-1996 (from a Swiss point of view). More specifically, in absence of habitual residence determination, HC-1996, article 6.2, would have allowed the applicability of the provisions contained in the said Convention towards the international protection of C. based on his physical presence. This could have led to a situation where the Greek authorities may have been considered responsible for C.’s asylum application (in absence of ‘transfer of responsibility’) and the Swiss authorities may have been competent for C.’s custody and protective measures.
II. New challenges concerning Adults:
A. is an adult, Swiss national, born in 1953, who worked as a ‘Fourier’ - Quartermaster Sergeant – in the Swiss army. Because of fraud, A.’s contract was terminated, as well as his marriage following divorce. A. manages to find a new job as a parish secretary, but again he commits fraud causing the termination of his contract.
In the frame of a criminal proceeding against fraud as a parish worker, A. was hospitalised because of maniacal illness and diagnosed with bipolar disorder. The guardianship authority decides to place A. under temporary protective supervision. He receives psychiatric treatment as an outpatient, while living independently and working in a sheltered workplace. A.’s supervision protective measure is then removed and he wants to start a new life. A. decides to move to Eastern Europe for around two years, notably to
3 CJEU [6 June 2013], MA and others v. UK, C-648/11.
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Bulgaria, although therein again encounters financial issues and asks his daughter to help him which she repeatedly does. A. decides to come back to live in Switzerland, but unfortunately he cannot afford to pay for his social and medical insurances. He again commits fraud and related financial crimes, consequently to which he is again placed under supervision and care assistance ordered by the Swiss Guardianship Authority.
A. goes to Odessa and then to Prague where he concludes a lease contract for an apartment, although he also rents a shared flat in Winterthur. A. encounters several financial issues, and while in Switzerland the guardianship authority wants to place him under long term guardianship and care assistance, arguing that his daughter cannot take care of him and assist him with his financial and mental issues. A. refuses and challenges the Swiss competence based on the fact that his habitual residence is in Prague. The Swiss Federal Tribunal concludes that competence should be retained by the Swiss authorities because the place of the actual centre of life or focus of A.’s relationship is in Switzerland4.
A. Habitual residence under the 2000 Hague Convention on International Protection of Adults and the reasoning of the Swiss TF
Habitual residence is a factual concept; no definition is provided under the Convention. The primary elements indicated in the TF reasoning are: the level of integration reached in a new environment corroborated by the establishment of personal relationships, interest in political and social life, living conditions and housing, family and professional ties, language skills. In A.’s case, these elements were not reached in the Czech Republic, or elsewhere, therefore the presence of his family in Switzerland, his nationality and still regular presence in Switzerland were considerable elements for the Swiss authorities to retain competence.
B. ‘One-day habitual residence’: duration and adult’s best interests
The question of duration is considered briefly in the reasoning of the Federal Tribunal. The TF refers to the element of ‘probable duration’, a certain length of stay, as a presumption for an expected integration. The reasoning concludes that in presence of the only element of probable duration, further assessment may be required, while in presence of additional elements showing clear integration habitual residence would be determined easily. The question of adult’s best interests is not considered in the TF reasoning, although implicitly it appears from the facts that the reason of A.’s stay in Switzerland is that he cannot afford any life elsewhere and needs financial assistance in addition to medical treatment, therefore Switzerland would be the best place to support him.
Another ‘intra-country’ scenario5 to compare with the Swiss decision relating to the aspects of duration and best interests involves a British lady of 88 years old moving from England to Scotland (the Convention has been ratified by Scotland only). She is accompanied by one of her children against the will of her other two children who were mandated to administer her properties in England. The High Court of England and Wales said that the habitual residence of an incapacitated adult – an adult who lacks the capacity to decide where to live – should be assessed at the time of the hearing and that an incapacitated adult’s habitual residence could be lost and another habitual residence acquired without the need for any court order – therefore in one day.6 Such assessment, concludes the Court, should take place in the best interests of the assisted person.
4 TF, 5A_68/2017, § 2.3: « Es besteht jedoch Einigkeit, dass der Begriff bei der Anwendung der Übereinkommen vertragsautonom auszulegen und darunter der Ort zu verstehen ist, an dem der tatsächliche Mittelpunkt der Lebensführung bzw. der Schwerpunkt der Bindungen einer Person liegt ».
5 [2013] EWHC 3932 (COP).
6 P. LAGARDE, Explanatory Report on the Hague International Adult Protection Convention, § 50.
