AS TO THE ADMISSIBILITY OF
by Ousman MBENGEH
The European Court of Human Rights (Fourth Section), sitting on 24 March 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 25 October 2006,
Having deliberated, decides as follows:
The applicant, Mr Ousman Mbengeh, is a Gambian national who was born in 1971 and lived, at the time of lodging his application with the Court, in Helsinki. He is represented before the Court by Ms K. Heimonen, a lawyer practising in Espoo.
A. The circumstances of the case
The facts of the case, as submitted by the applicant and as they appear from the documents on the file, may be summarised as follows.
The applicant arrived in Finland on an unspecified date. On 25 January 1995 he married a Finnish citizen, who gave birth to their son in 1996. The three of them lived together until the applicant’s deportation to his country of origin, Gambia, in 2006.
In 1995 the applicant had obtained a temporary residence permit based on the marriage. In 1998 he was granted a permanent residence permit.
On 25 April 2003 the Helsinki District Court (käräjäoikeus, tingsrätten) convicted the applicant of an aggravated narcotics offence for having dealt in heroin during the period from May 2002 to January 2003 and sentenced him to six years’ imprisonment. The conviction was upheld by the Helsinki Court of Appeal (hovioikeus, hovrätten) on 14 January 2004 although the sentence was reduced to four years’ imprisonment. On 27 January 2006 the Supreme Court (korkein oikeus, högsta domstolen) upheld the conviction and sentence.
On 10 November 2004 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) decided to deport the applicant owing to his criminal activity and issued a five-year refusal of entry to the Schengen area. It considered that, through his criminal activity, he had endangered public order and safety. The Directorate of Immigration noted that, according to practice, aggravated offences usually resulted in the issuing of a refusal of entry which would normally remain in force until further notice. However, having regard to the applicant’s family ties to Finland, it considered that a refusal of entry for five years was appropriate.
On 8 August 2005 the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) quashed the decision because of the applicant’s long stay in Finland and his family ties.
The Directorate of Immigration appealed. On 20 October 2006 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), finding that the grounds for deportation were weightier than the applicant’s family ties and his eleven-year stay in Finland, quashed the Administrative Court’s decision and upheld the deportation order. The case turned on the fact that the applicant had been dealing in very dangerous drugs for monetary gain and in the circumstances, the deportation and refusal of entry would not be in breach of Article 8 of the Convention or Article 3 of the United Nations Convention on the Rights of the Child (1989; yleissopimus lapsen oikeuksista, konventionen om barnens rättigheter; SopS 60/1991).
On 7 December 2006 the applicant was deported to his country of origin.
B. Relevant domestic law and practice
Section 40(1) of the then Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 378/1991) provided, inter alia, that an alien convicted of a criminal offence which carried a sentence of one year or more or an alien who repeatedly committed offences could be deported.
Section 41 provided that when deciding on deportation regard must be had to all the relevant facts and the circumstances as a whole such as the duration of the stay, the relationship between a child and its parent and family and other ties to Finland. The nature of the offence within the meaning of section 40(1) was also relevant.
Under section 43 a refusal of entry could be issued for a maximum period of five years or until further notice.
The applicant complained under Article 8 that the deportation order and the refusal of entry were disproportionate and had violated his right to respect for his private life and family life.
The Court notes that the applicant had established a family life in Finland with his wife whom he married in 1995 and with his son of their marriage and whom he lived with from birth until his deportation (see Lebbink v. the Netherlands, no. 45582/99, § 35, ECHR 2004-IV). The applicant’s expulsion obviously amounted to an interference with his right to respect for his family life. As to the applicant’s Article 8 claim based on his right to respect for his private life, the Court is prepared to accept that the deportation also interfered with the applicant’s right to respect for his private life, having regard to the length of his stay in Finland, and the undoubted social ties which he had formed there. It recalls in this connection that the totality of social ties between aliens and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8 (see Maslov v. Austria [GC], no. 1638/03, § 63, ECHR 2008).
The above-mentioned interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned.
The Court notes that the impugned measure had a basis in domestic law, namely section 40 of the Aliens Act and it served a legitimate aim, namely “the prevention of disorder and crime”. The principal issue to be determined is whether the interference was “necessary in a democratic society”. The relevant criteria that the Court uses to assess whether an expulsion measure is necessary in a democratic society have been summarised as follows (see Üner v. the Netherlands [GC], no. 46410/99, §§ 57 - 58, ECHR 2006-...):
“3. Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court’s case-law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, the judgments in Moustaquim v. Belgium, Beldjoudi v. France and Boultif v. Switzerland, [cited above]; see also Amrollahi v. Denmark, no. 56811/00, 11 July 2002; Yılmaz v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27 October 2005). In the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in paragraph 40 of the Chamber judgment in the present case, are the following:
- the nature and seriousness of the offence committed by the applicant;
- the length of the applicant’s stay in the country from which he or she is to be expelled;
- the time elapsed since the offence was committed and the applicant’s conduct during that period;
- the nationalities of the various persons concerned;
- the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
- whether the spouse knew about the offence at the time when he or she entered into a family relationship;
- whether there are children of the marriage, and if so, their age; and
- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.
4. The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:
- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
- the solidity of social, cultural and family ties with the host country and with the country of destination.”
The Court accepts that the applicant has lived for a considerable length of time in Finland, although it could not be said that he spent the major part of his childhood or youth there. His wife and son live in Finland, both of whom are Finnish citizens. At the time of the deportation, his son was ten years old. In the circumstances, the Court considers that the applicant has strong ties with Finland. The applicant co-habited with his son since birth and the applicant’s deportation has had, and will continue to have, a disruptive effect on the boy’s life. It is however also true that contact by telephone could be maintained from Gambia, and there would be nothing to prevent the wife and the son from travelling to Gambia to visit him. As to the argument that the family do not have the means to travel, the Court does not underestimate the difficulties which they may encounter.
The Court recognises that many years have passed since the applicant last lived in Gambia. However, as he has not argued that he does not know the local language, there is no language barrier which would have created difficulties for the applicant in establishing himself or finding employment. The Court is therefore not convinced that the applicant has become so estranged from Gambia that he would no longer be able to re-adapt to life there.
The Court has next examined the possibility for the applicant and his wife and son to establish their family life elsewhere. The Court has considered, first, whether they could live together in Gambia. The applicant’s wife and son are Finnish nationals, who have never lived in Gambia. They have no other ties with that country and it appears that they do not speak the local language. In these circumstances they cannot, in the Court’s opinion, be expected to follow the applicant to Gambia. Secondly, it has not been established that the applicant, his wife and his son could obtain authorisation to reside lawfully elsewhere where they could lead their family life. The Court therefore considers that the applicant has been subjected to a serious impediment to establishing a family life, since it is practically impossible for him to live his family life outside Finland.
On the other hand, when the Finnish authorities decided to deport him, he represented a danger to public order. Under the approach taken in the Boultif judgment (cited above, §51), the fact that a significant period of good conduct elapses between the commission of the offence and the deportation of the person concerned necessarily has a certain impact on the assessment of the risk which that person poses to society. Although there is nothing in the case file to indicate that the applicant was a habitual offender or that he has re-offended, the Court cannot overlook the fact that the Supreme Administrative Court emphasised that the offence committed by him – dealing in very dangerous drugs for monetary gain - was at the more serious end of the spectrum of criminal activity. The Court notes that the offence was not an act of juvenile delinquency. In the sphere of drug dealing the Court has shown understanding of the domestic authorities’ firmness as regards those actively involved in the spread of this scourge (see, for instance, Dalia v. France, judgment of 19 February 1998, Reports 1998-I, p. 92, § 54, and Baghli v. France, no. 34374/97, § 48, ECHR 1999-VIII).
Finally, the Court has regard to the duration of the refusal of entry. The applicant would be able to enter Finland when a period of five years has elapsed from the Directorate of Immigration’s decision of November 2004. In this connection, the Court notes that the Directorate of Immigration took into account that aggravated offences normally resulted in the issuing of a refusal of entry in force until further notice. However, having regard to the applicant’s family ties to Finland, it considered that a refusal of entry for five years was appropriate. The actual deportation took place in December 2006.
In light of the above, the Court finds that a fair balance was struck between the relevant interests and that the applicant’s deportation from Finland was proportionate to the legitimate aim pursued and therefore necessary in a democratic society.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza