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ANTWI AND OTHERS v. NORWAY - 26940/10 [2012] ECHR 259 (14 February 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/259.html
Cite as:
[2012] ECHR 259
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FIRST
SECTION
CASE OF ANTWI AND OTHERS v. NORWAY
(Application
no. 26940/10)
JUDGMENT
STRASBOURG
14
February 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Antwi and Others v.
Norway,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić, President,
Peer
Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 24 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 26940/10) against the Kingdom
of Norway lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”), on 11 May 2010, by Mr Henry Antwi (“the
first applicant”), a Ghanaian national who was born in
1975; by his wife, Mrs Vivian Awere Osei (“the second
applicant”); a Norwegian citizen who was born in Ghana in 1979;
and by their daughter, Ms Nadia Ryan Pinto (“the third
applicant”), a Norwegian national who was born in
September 2001.
The
applicants were represented by Mr A. Humlen, a lawyer practising in
Oslo. The Norwegian Government (“the Government”) were
represented by Mr M. Emberland, Attorney, Attorney-General’s
Office (Civil Matters), as their Agent, assisted by Ms A. Matheson
Mestad, Attorney of the same office.
The
applicants alleged that the Norwegian immigration authorities’
decision to expel the father from Norway and to prohibit his re-entry
for five years would, if implemented, give rise to a violation of
his, his wife’s and his daughter’s right to respect for
family life under Article 8 of the Convention.
On 19 May 2010 the President of the First Section
decided to apply Rule 39 of the Rules of Court, indicating to
the Government that it was desirable in the interests of the parties
and the proper conduct of the proceedings not to deport the first
applicant until further notice. The President further decided to give
priority to the application (Rule 41).
On
1 July 2010 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The circumstances of the case
1. Factual background
The
first applicant arrived in Germany in 1998, where he obtained a
forged passport and a birth certificate stating a false identity
indicating that he was a Portuguese national named Jose Joao Olas
Pinto, born on 1 March 1969.
The
second applicant is also of Ghanaian origin. She had arrived in
Norway in 1997, at the age of seventeen, with a view to be reunited
with her father and three siblings who still live in Norway. The
first and second applicants met while she was travelling in Germany.
The second applicant invited the first applicant to Norway and soon
after they started cohabiting. They live in Oslo.
In
2000 the second applicant obtained Norwegian citizenship.
On
23 December 1999 the first applicant applied for a work- and
residence permit as a citizen of the European Economic Area
(hereinafter “the EEA”, established in 1994 under an
agreement bringing the three member states of the European Free Trade
Association (EFTA) – Iceland, Liechtenstein and Norway –
and the twenty-seven member states of the European Union (EU)
together in a single internal market, without the EFTA members having
to join the EU). On the basis of the forged Portuguese passport
indicating a false identity, the Norwegian immigration authorities
granted him a five-year residence- and work permit from 13 April
2000 to 13 April 2005 as an EEA national.
On
23 September 2001 the couple had a daughter (the third applicant).
In
2003 the first applicant applied for Norwegian citizenship. The
application was refused because the duration of his residence in
Norway had been insufficient.
On
11 February 2005 the couple married in Ghana. According to the
applicants, it was in that connection that the second applicant had
become aware of the first applicant’s true identity as he
obtained a Ghanaian passport.
The
first applicant also used his false identity when he applied for
renewal of his residence permit in the spring of 2005.
On
15 July 2005 the first applicant was arrested in the Netherlands
while travelling to Canada, as the Dutch authorities discovered that
his passport was forged. Subsequently, the first applicant provided
his true identity to the Norwegian authorities. After a few months he
returned to Norway.
2. Proceedings before the immigration authorities
(a) The Directorate of Immigration
On
12 October 2005 the Directorate of Immigration warned the first
applicant about the possibility that he might be expelled from
Norway.
On
3 May 2006 the Directorate decided that he should be expelled from
Norway under section 29(1)(a) of the Immigration Act 1988 (according
to which an alien may be expelled if he or she has committed serious
or repeated violations of one or more provisions of the Act).
Reference was made to the fact that by having provided false
information in connection with his application for work permit on 23
December 1999, he had violated section 44 (cf. section 47(1)(b) of
the Act). He had submitted false information regarding his date of
birth, identity and nationality. Whilst the first applicant had
stated that his name was Jose Joao Olas Pinto, a citizen of Portugal,
born on 1 March 1969, his true identity had been Henry Antwi, a
citizen of Ghana, born on 9 May 1975. The Directorate found that his
expulsion would not be a disproportionate measure vis-à-vis
him for the purposes of section 29(2). He was prohibited from
re-entry for a period of five years (section 29(4)).
The
Directorate also decided that these measures should be entered into
the Schengen Information System, with the consequence that the
expulsion in principle would apply to the entire Schengen area. He
was given until 24 July 2006 to leave Norway.
On
the same date as the above decision, the Directorate rejected the
first applicant’s application for work-permit and family
reunification with the second and third applicants on the ground of
his expulsion.
(b) The Immigration Appeals Board
On
4 September 2007 the Immigration Appeals Board rejected the
applicant’s appeal against the Directorate of Immigration’s
decision of 3 May 2006. Like the Directorate, it observed that
the first applicant had given false information about his identity
and in support of this had submitted a forged passport. He had
further maintained his false identity in his respective applications
for Norwegian citizenship, for renewal of his work permit, and for
family reunification. He had accordingly repeatedly committed
aggravated violations of the immigration rules.
The
Board found that the first applicant’s expulsion would not
constitute a disproportionate measure vis-à-vis him,
nor vis-à-vis his closest family members. In addition
to having obtained a work permit as an EEA citizen on the basis of
false information about his identity with the support of a forged
passport, the first applicant had failed to comply with the order to
leave the country by 24 July 2006. Strong interests of general
prevention militated in favour of expulsion.
With
reference to Article 8 of the Convention, the Board found that the
first applicant’s personal links to Norway carried little
weight. He had arrived in Norway at an adult age, had since returned
to his home country and had also married the second applicant in
Ghana, which suggested that he still had a strong attachment to his
country of origin. In light of the gravity of the offences, his
family links to his spouse and child could not be decisive in the
global assessment. Since his relationship with the second applicant
had been established during his residence on the basis of false
identity, neither he nor she could entertain any legitimate
expectation about being able to continue to live together in Norway
if the matter was discovered. No weight could be placed on the fact
that the second applicant claimed that she had been ignorant about
the first applicant’s actual identity. Reference was made to
the fact that she had been aware that he originally had a Ghanaian
background and that, in connection with their marriage in Ghana on 11
February 2005, he had obtained a Ghanaian passport.
The
Board further noted that the third applicant had been conceived and
born while the first applicant resided on the basis of a false
identity. Links established under circumstances as described above
thus carried less weight. The fact that the applicants were living
together as a family and that the first applicant had significant
contacts with the third applicant, could not be decisive for the
assessment of the case as a whole. Reference was made to the fact
that the second applicant was originally of the same nationality as
the first applicant and could more easily accompany the first
applicant to their country of origin. In view of her young age, the
child had the closest attachment to her parents and for this reason
could eventually follow them to their home country. Also, the
duration of the prohibition on re-entry was limited to five years.
Referring
to section 4 of the Immigration Act 1988 (pursuant to which the Act
ought to be applied consistently with Norway’s international
legal obligations aimed at strengthening the foreigner’s
position) and to section 4 of the Human Rights Act, which
incorporated the Convention into Norwegian domestic law, the Board
found that the first applicant’s expulsion would not be
incompatible with Article 8 of the Convention or the United Nations
Convention on the Rights of the Child. In this connection the Board
had regard to the Court’s case-law, notably Amrollahi v.
Denmark, no. 56811/00, § 35, 11 July 2002; Boultif v.
Switzerland, no. 54273/00, § 48, ECHR 2001 IX;
Dalia v. France, 19 February 1998, § 54, Reports
of Judgments and Decisions 1998 I; Jakupovic v. Austria,
no. 36757/97, § 31, 6 February 2003). The Board considered
in detail the first applicant’s arguments based on Rodrigues
da Silva and Hoogkamer v. the Netherlands (no. 50435/99,
ECHR 2006 I) and agreed with the Directorate that it was not
directly applicable to the present case.
In
sum, the Board was of the view that, having regard to the gravity of
the first applicant’s offences of the Immigration Act and to
the circumstances of the case as a whole, there was a reasonable
relationship of proportionality between the expulsion and its
negative effects on his enjoyment of private and family life. His
expulsion with a prohibition on re-entry for a period of five years
would not be a disproportionate measure either vis-à-vis
the first applicant or vis-à-vis his closest family
members, for the purposes of section 29(2) of the Immigration Act,
Article 8 of the Convention and the UN Convention on the Rights of
the Child.
Throughout
the above proceedings before the immigration authorities the first
applicant was represented by a lawyer.
3. Judicial proceedings
(a) The City Court
The
first applicant challenged the above decision before the Oslo City
Court (tingrett), pending which it was decided in the autumn
of 2007 to stay his expulsion.
On
28 March 2008 the Oslo City Court quashed the Immigration Appeals
Board’s decision of 4 September 2007 as being invalid. The City
Court found it obvious that the conditions for expelling the first
applicant set out in section 29(1)(a) had been fulfilled. The first
applicant’s offences of the immigration rules were aggravated
and his expulsion was warranted by weighty considerations of general
deterrence. According to the immigration authorities’ practice,
a prohibition on re-entry would normally be made permanent in such
cases. The reason why the prohibition on re entry had been
limited to a period of five years in the present case was the fact
that the first applicant had a six years’ old daughter (the
third applicant). The question thus arose whether the expulsion of
the first applicant for a period of five years would be a
disproportionate measure vis à-vis his daughter
despite the seriousness of his breaches of the Immigration Act.
In
this regard the City Court observed, inter alia, that the third
applicant appeared to be an ordinary Norwegian girl and that it was
not certain that it would be unproblematic for her to move to Ghana,
even though this was her parents’ home country. One would have
to take into account possible problems for her in the event of a
return to Norway. If the first applicant were to be expelled to Ghana
for a period of five years, his daughter would most probably loose
the close contact she had with him. To deprive the child of her
relationship with her father would be a serious measure and could
have disturbing effects on the child’s development. This would
be so even if she were to have the opportunity to visit him in his
home country. Although considerations of general prevention militated
in favour of expulsion, the measure would be disproportionate
vis-à-vis the first applicant’s daughter.
(b) The High Court
The
State appealed to the Borgarting High Court (lagmannsrett). At
the request of the State, the High Court decided on 14 November 2008
to suspend the proceedings in the first applicant’s case
pending the national outcome in a parallel case (Nunez v.
Norway, no. 55597/09, 28 June 2011).
In
a judgment of 19 January 2010, the High Court, by two votes to one,
upheld the Immigration Appeals Board’s decision of 4 September
2007.
The
High Court observed that the first applicant’s violation of the
Immigration Act ought to be considered as serious. On four different
occasions he had submitted false information about his identity to
the immigration authorities and had supported this with a forged
passport. First he had been issued with a permit - an EEA permit -
despite his not being entitled to such a permit. On the second
occasion, his application for citizenship had been refused on other
grounds, namely the duration of his residence in Norway. On the third
and fourth occasions, his application had been rejected because his
expulsion had already been decided. False information about one’s
identity made it very difficult for the authorities to exercise an
effective control of a foreigner’s entry into and residence in
Norway. To a large extent the system had to be based on confidence.
General preventive measures suggested therefore that breaches of the
immigration rules should entail adverse consequences for the person
concerned.
As
to the question whether, nonetheless, there was such an attachment to
Norway as to make the expulsion disproportionate, the High Court
observed inter alia as follows.
The
first applicant had grown up in Ghana and had his family there. He
had lived in Norway since the autumn of 1999. Since his attachment
had been established on the basis of a residence permit that he had
misled the authorities to grant him, he could not have had any
legitimate expectation about being able to remain in Norway. The High
Court found it clear that expulsion would not be a disproportionate
measure vis-à-vis the first applicant.
As
regards his wife, the second applicant, the High Court observed that
she had originated from Ghana. She knew the culture and spoke the
language of the country. Since the age of seventeen she had lived in
Norway where she had her closest family, her father and three
siblings. She was a Norwegian citizen, spoke Norwegian and was
working in Norway. In 1999 she had started co-habiting with the first
applicant in the belief that he held lawful residence in Norway as an
EEA citizen. She thus had reason to believe that their marriage and
his application for family reunification had not been necessary
conditions for them to establish a reliable framework around their
life together in Norway. She had become aware of her husband’s
true identity when they had married in February 2005. Only when the
false passport had been revealed in the Netherlands in the summer of
2005 had she become aware that he was not a Portuguese national.
Nonetheless, the High Court found that her interests seen on their
own could not render the expulsion a disproportionate measure.
The High Court found that a decisive consideration in
this case was the interests of the daughter, the third applicant. She
was eight and a half years of age and was a Norwegian national. She
was in her third school year, active in sport and well established in
her local environment. She only spoke Norwegian and a few words of
her mother’s language – Twi – and English. Her
parents spoke primarily Norwegian at home. It had been submitted that
she needed close follow-up in relation to school and that it was the
first applicant who assumed this contact, staying at home after
having lost his work permit. It was also him who followed up her
hobbies.
According
to two medical statements dated 5 October 2007 and 18 September
2008, respectively, by the third applicant’s general medical
practitioners, since she had been a child she had been suffering from
rashes that worsened with heat.
The
High Court pointed out that regard for the best interests of the
child was a fundamental consideration to be taken into account in the
proportionality assessment under section 29 of the Immigration Act.
The
High Court found it established that in the event of the
first applicant’s expulsion, either the family would be
split, meaning that the second and third applicants would continue to
live in Norway, or they would move with him to Ghana. This would
clearly not be in the best interests of the daughter, who was born
and had grown up in Norway and was very attached to her father.
Naturally she also had strong bonds to her mother.
It
ought to be expected that an expulsion would involve financial,
emotional and social strain on established family life. This applied
not least when family life was interrupted as a result of the
expulsion. Strain of this kind was not in itself a sufficient
indicator that expulsion would be a disproportionately severe
sanction.
The
High Court further pointed to the Supreme Court’s judgment
reported in Norsk Retstidende (“Rt.”)
2009-534 (see Nunez, cited above, § 23),
in which Norway’s international obligations were also assessed,
including the European Court’s judgment in Rodrigues
da Silva and Hoogkamer, cited above. In the High Court’s
view, the interests of a child who had no special needs for care and
who had a remaining parent able to provide satisfactory care should
not be a decisive consideration in assessing whether an expulsion
measure should be implemented.
According
to the High Court, the third applicant was a normal girl for her age
– eight years and a half – and had no special care needs.
It saw no reason to doubt that her mother would be able to provide
her with satisfactory care on her own. Since the child’s mother
originated from the same country as the father, and had been on
visits there with the daughter on three occasions, the situation was
favourable for regular contact or, in the alternative, for the
family’s settling in Ghana. Consequently, the expulsion of her
father with a prohibition on re-entry for a limited period would not
be a disproportionate measure.
As
to the duration of that period the High Court was divided.
The
majority did not find five years inconsistent with current
practice or disproportionate. It observed that the case involved
serious violations of the Immigration Act. According to the Supreme
Court’s judgment in the Nunez case, an expulsion would
only be disproportionate when it resulted in an extraordinary burden
(see paragraph 63 of the Supreme Court’s judgment quoted in
Nunez, cited above, § 23).
As
to the present case, the High Court reiterated its finding above that
the child’s mother would be able to provide the child with
satisfactory care of her own. Since the child’s mother
originated from the same country as the father and had visited the
country with the daughter on three occasions, there were favourable
conditions for maintaining regular contacts or, in the alternative,
for the whole family to settle in Ghana. Thus the family had a better
basis for maintaining family life and contact than would have been
the case if the parents had not had the same country of origin.
The
parents had informed the court that the daughter could not stay in
Ghana for extended periods since she suffered from a skin rash that
was aggravated by heat. However, it was clear that she had been in
Ghana several times, most recently in October 2009. In the majority’s
view, the information about the daughter’s rashes had not been
sufficiently documented and could not be relied upon.
The minority was of the view that the
imposition of a five-year re entry ban would be too severe and
disproportionate a measure and that two-year ban would be
appropriate, observing inter alia the following.
The
gravity of the first applicant’s offences under the Immigration
Act had been comparable to those committed by the applicant in the
Nunez case, though less aggravated bearing in mind that he had
not committed other offences in Norway and had not defied any
prohibition on re-entry.
Since
birth the daughter had been taken special care of by her father, who
had followed her up in her recreational activities and through
extensive contacts with her school. For a girl of eight years and a
half of age, and for her mother, it would make a considerable
difference were reunification of the family to take place in Norway
after two to three years as compared to five to six years. Taking
into account the normal processing time for a request for family
reunification, the daughter would be nearly fifteen years before the
family could resume cohabitation in Norway. The years in between
would be important years.
Even
though there was a possibility for the family to follow the
first applicant to Ghana, this prospect was unrealistic. There
was nothing to indicate that the family would easily find
accommodation, work, etc. in Ghana.
The
minority agreed that the evidence submitted in support of the
affirmation that the daughter had a skin rash aggravated by heat was
weak. Nonetheless, on the basis of the two statements form the
daughter’s two general practitioners, it ought to be assumed
that she had “a recurrent skin rash. The diagnosis had been
somewhat uncertain.” As far as could be understood, one only
had the word of the parents to the effect that the rash had been
aggravated by heat; the general practitioners’ statements on
this point had apparently been based on information provided by the
parents.
However,
it was unnecessary to further consider this matter since in any event
for the third applicant to be interrupted for at least five years’
from her school, friends and hobbies in Norway in order to settle in
a country where she neither knew the language nor the culture would
be particularly unfortunate for her. Her knowledge of Norwegian would
deteriorate and it would have social and educational consequences for
her when returning to Norway at the age of fourteen or fifteen.
The
minority in addition attached some weight to the second applicant’s
interests, notably the fact that she had entered into the
relationship, had given birth to a child and had married the first
applicant in the belief that it would be possible to continue family
life in the country of which she was a national and where most of her
remaining family lived. It further had regard to the fact that the
first applicant had come to Norway because of his wife and that their
cohabitation had been established almost immediately after his
arrival in the country.
(c) The Supreme Court
On
28 April 2010 the Appeals Leave Committee of the Supreme Court
(Høyesteretts ankeutvalg) unanimously refused the first
applicant leave to appeal, finding that such leave was warranted
neither by the general importance of the case nor by other
considerations.
In
the above-mentioned judicial proceedings, the first applicant was
represented by a lawyer at each judicial level.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Section
29 (1) (a) of the Immigration Act 1988 (Act of 24 June 1988
Nr 64, Lov om utlendingers adgang til riket og deres opphold her
– utlendingsloven – applicable at the material
time and later replaced by the Immigration Act 2008) read:
“Any foreign national may be expelled
a) when the foreign national has seriously or
repeatedly contravened one or more provisions of the present Act or
evades the execution of any decision which means that the person
concerned shall leave the realm.”
Even
when the conditions for expulsion pursuant to section 29 of the
Immigration Act were satisfied, expulsion could not take place if it
would be a disproportionate measure against the foreign national or
the closest members of his or her family. Section 29 § 2 of the
Immigration Act 1988 provided:
“Expulsion pursuant to the first paragraph,
sub-paragraphs (a), (b), (c), (e) and (f) of this section, shall not
be ordered if, having regard to the seriousness of the offence and
the foreign national’s links to the realm, this would be a
disproportionately severe measure vis-à-vis the foreign
national in question or the closest members of this person’s
family.”
According
to section 29 (4), an expulsion order would be accompanied by a
prohibition on re-entry into Norway. However, the person expelled
might, on application, be granted leave to enter Norway. Furthermore,
according to well-established administrative practice, when
considering an application for leave to enter under section 29 (4),
the Directorate of Immigration was under an obligation to consider
the proportionality of its decision on prohibition on re-entry. The
provision read:
“Expulsion is an obstacle to subsequent leave to
enter the realm. Prohibition on entry may be made permanent or of
limited duration, but as a general rule not for a period of less than
two years. On application the person expelled may be granted leave to
enter the realm, but as a rule not until two years have elapsed since
the date of exit.”
Section
41 (1) provided inter alia:
“Any decision which means that any foreign
national must leave the realm is implemented by ordering the foreign
national to leave immediately or within a prescribed time limit. If
the order is not complied with or it is highly probable that it will
not lead to the foreign national’s leaving the realm, the
police may escort the foreign national out. ... Any decision which
applies to implementation is not considered to be an individual
decision, cf. section 2 (1) (b), of the Public Administration Act.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicants complained that the Norwegian immigration authorities’
decision, upheld by the national courts, that the first applicant be
expelled to Ghana with a prohibition on re-entry for five years would
entail a breach of their rights under Article 8 of the Convention. It
would disrupt the relationships between the first and the third
applicants in a manner that would have long lasting damaging effects
on the latter.
Article
8 reads:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government disputed this contention.
A. Admissibility
The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the parties
(a) The applicants’ arguments
Admittedly,
the first applicant’s breaches of the Immigration Act
had related to the fact that he had initially presented a false
Portuguese passport as a basis for his EEA permit in Norway and that
he on three occasions had repeated the information to the Norwegian
authorities in connection with his applications for extensions of his
residence permits and for citizenship. However, bearing in mind their
similar nature, it would be difficult to see how one could consider
these three violations as independent and separate offences.
Although
one should not underestimate the seriousness of the first applicant’s
offence, once the matter had been discovered he had quickly
contributed to the elucidation of his correct identity. At no time
thereafter had he committed any criminal act or failed to comply with
applicable rules and norms in Norway. At present, he posed no
“threat” to Norwegian public interests.
Whilst
the Norwegian authorities had decided not to deal with the matter as
a criminal offence and press charges but rather as an administrative
offence, there was no basis for considering the matter more severely
than would have been the case had they opted for the former
criminal-law approach.
The
first applicant had lived in Norway since 1999 and had developed
strong ties to Norway through work and social life by the time he
lost his work permit in 2005, though his main interest in preserving
his ties to Norway lay in the protection of his family life in the
country.
His
wife, the second applicant, was a Norwegian citizen. Although
she initially was a Ghanaian citizen, the applicants’
emphasised that she had been living in Norway since 1997 when she at
the age of seventeen had settled there in order to be reunited with
her father and siblings who lived in the country and who still lived
there. She had held Norwegian citizenship since 2000.
The
second applicant had only become aware of her husband’s true
identity in connection with their marriage in Ghana in February 2005.
It was only later that year, after the first applicant had been
stopped at the airport in the Netherlands in connection with the trip
to Canada, that the second applicant had become aware that the first
applicant had operated with false identity and citizenship. It ought
to be emphasized that, by the time of their marriage in 2005, the
couple had exercised “family life” for six years and had
a daughter, born in 2001. The development of the second applicant’s
“family life” with the first applicant during this period
could not be regarded as precarious.
In
light of the above, the applicants argued that the second applicant
subsequently was entitled to a degree of protection of her “family
life” under Article 8 of the Convention. For six years she had
entertained a legitimate expectation about being able to pursue her
future relationship with her husband in Norway and had for such a
length of time exercised actual “family life” with the
child as part of the family. So far their effective family life had
lasted for twelve years.
The
third applicant, the first and second applicant’s
daughter, had been born and brought up in Norway and was presumably
the one who had the strongest interest in the protection offered by
Article 8 of the Convention. Being a nine year old Norwegian national
who had spent her entire childhood in Norway, she undoubtedly had a
strong foundation in the country. She had little, if any, awareness
of her parents’ links to their country of origin. She had only
visited Ghana twice, on each occasion for a short period, and had
suffered allergic reactions on both occasions. She had experienced
the reactions as very uncomfortable and had against this background
stated that she would never go back to Ghana.
Throughout
her childhood, both in kindergarten and at school, the third
applicant had always been in a Norwegian environment. She had
established strong cultural and social ties to Norwegian society,
notably through her many sport activities. Moreover, her school had
pointed out that these activities had helped reducing her
restlessness and strengthening her focus on and learning capacity at
school.
Apart
from an occasional expression in the parents native Twi and English,
the third applicant only spoke Norwegian, which was the family’s
everyday language.
Since
he had lost his work permit in 2005, the first applicant had assumed
the role as the third applicant’s main caretaker within the
family. The second applicant had been the family’s main bread
winner and had, as a result, been occupied in one job and a half in
order be to be able to maintain the family’s level of
subsistence. This meant that the first applicant had the main role in
following up the home work of the third applicant, who needed to be
accompanied particularly closely, and in assuming the contacts
between the family and school.
Bearing
in mind the first applicant’s important role in attending to
the third applicant’s care, education and sporting activities,
the strong emotional bonds between them and the fact that the she was
at a critical phase of her adolescence, the first applicant’s
expulsion with a prohibition of re-entry for five years would
constitute a disproportionate measure vis à vis
her, in particular, and also vis-à-vis the second
applicant. It would have the effect of splitting the family for five
years with the risk that it might sever the ties between the first
applicant and his family.
For
the second and third applicants to move with the first applicant to
Ghana for five years would not be a realistic option, as it would
entail a loss or significant weakening of the third applicant’s
educational, emotional, cultural and linguistic ties at an important
age and severely prejudice her possibilities for pursuing life in
Norway later.
(b) The Government’s arguments
The
Government maintained that Mr Antwi, the first applicant, had at no
time been entitled to a residence permit under Norwegian law, in
contrast to the applicant in the case of Rodrigues da Silva and
Hoogkamer, cited above, which was clearly distinguishable.
He had on several occasions provided Norwegian immigration
authorities with incorrect information concerning his identity and
had moreover substantiated this identity with a false passport. He
had had no right to the EEA residence permit that had been issued to
him on the basis of an incorrect identification document. The other
three occasions on which he had submitted false information had not
resulted in incorrect decisions by the immigration authorities since
they had relied on other grounds. But the fact that he had persisted
in using false identification papers also in his direct contact with
the Norwegian authorities fortified the Government’s view that
he had “a history of breaches of immigration law”.
The
Government further emphasised the particular gravity of the first
applicant’s offences of the immigration rules. As held by the
High Court, the provision of incorrect information concerning
identity made it very difficult for the authorities to exercise
effective control of foreign national’s entry and residence in
Norway. The first applicant’s forged passport indicating that
he was an EEA citizen had enabled him to obtain a residence permit
for five years, hence allowing him to establish himself in Norway for
a long period of time on unlawful grounds. A lack of consequences for
such gross or repeated contraventions of the law would, on the one
hand, undermine respect for the legislation and, on the other hand,
have an unjust effect on those who abide by the law.
The
first applicant had been duly aware that his residence permit in
Norway had been based on forged identification papers and that
subsequently his residence in the country had been precarious. Hence,
his family life had been developed in circumstances in which he could
entertain no legitimate expectation about being granted a residence
permit.
The
Government further observed that the first applicant had arrived in
Norway as an adult, having spent the first twenty-four years of his
life in Ghana, and therefore had strong cultural, family and social
ties to his home country. In contrast, his connection to Norway had
been of a considerably weaker nature, resting merely on family bonds
formed while he had been residing illegally in the country.
Accordingly, regard for the first applicant’s individual
interests clearly could not render the decision to expel him
unjustified for the purposes of Articles 8 of the Convention.
Since
the work- and residence permits had been issued on the basis of false
information provided by the first applicant, they could not be viewed
as an argument in the applicants’ favour. It was rather a
factor which underpinned the gravity of his offences under the
immigration law, hence the view that the expulsion order was
justified for the purposes of Article 8.
In
so far as the interests of the applicant’s child were
concerned, these had been thoroughly considered by the High Court in
its judgment. Based on a concrete assessment of the evidence
presented, the High Court found that the third applicant would not be
subjected to any unusual strain as a result of the forced removal of
the first applicant to his country of origin. The High Court majority
pointed to the Supreme Court’s case law according to which an
expulsion would only be regarded as disproportionately severe if it
resulted in abnormal strain on the child. However, the second
applicant – the mother – was well suited as a caretaker
for the third applicant. The latter was a normal girl of eight years
and a half of age with no special care needs and her mother would
undoubtedly be able to provide her with satisfactory care on her own.
Accordingly, the first applicant’s expulsion with a prohibition
on re-entry of limited duration would not constitute a
disproportionately severe measure vis-à-vis the third
applicant.
As
regards the second applicant, the fact that she originated from Ghana
was a relevant factor for the Court’s assessment. Even though
she had obtained a Norwegian citizenship and parts of her family
resided in Norway, her links to Ghana ought to be considered strong:
she was familiar with Ghanaian culture and spoke a Ghanaian language.
The first and second applicants had married in Ghana in 2005, which
choice of location clearly showed the links that they had to their
common country of origin.
Hence,
the Government considered that the applicants’ “family
life” would not be ruptured by the expulsion of the first
applicant. Although the family probably would experience some
difficulties and inconvenience if they were to settle in Ghana, they
had failed to show that there existed insurmountable obstacles for
enjoying family life in the couple’s common country of origin.
In
any event, nothing would prevent the second and third applicants from
visiting the first applicant in Ghana. As observed by the High Court,
they had already visited Ghana on several occasions. The conditions
for keeping in touch in the event that the family choose not to
settle in Ghana were in the Government’s opinion particularly
favourable.
In
the High Court’s view, the duration of the prohibition on
re-entry – five years – had been consistent with the
applicable administrative practice at the time and had not been
disproportionately severe within the meaning of section 29(2) of the
1988 Immigration Act. At the expiry of this term the first applicant
would no longer be barred from entering Norwegian territory. He
would, upon application for visa, be able to visit the country and
apply for a residence permit on an equal footing with others.
In
light of the above, the facts of the case did not disclose any breach
of the respondent State’s positive obligations under paragraph
1 of Article 8 of the Convention.
In
any event, should the Court consider the matter from the angle of the
State’s negative obligations not to interfere in a manner that
failed to comply with the conditions set out in paragraph 2 of
Article 8, the Government stressed that all those conditions had been
fulfilled in the instant case. Referring to the considerations set
out above, the Government maintained that the interference had been
“necessary” for the legitimate aim pursued. By having
refused to comply with the lawful decisions taken by Norwegian
immigration authorities, based on a family life established on
unlawful grounds, the first and second applicants had confronted them
with a fait accompli for which they ought to be held in the
main responsible. The Norwegian immigration authorities and courts
had in the present case struck a fair balance between the interests
of the applicants and those relating to immigration control.
2. The Court’s assessment
It
is clear, and this was not disputed before the Court, that the
relationship between the applicants constituted “family life”
for the purposes of Article 8 of the Convention, which provision is
therefore applicable to the instant case.
As
to the issue of compliance, the Court reiterates that a State is
entitled, as a matter of well-established international law and
subject to its treaty obligations, to control the entry of aliens
into its territory and their residence there. The Convention does not
guarantee the right of an alien to enter or to reside in a particular
country (see, as a recent authority, Nunez, cited above,
§ 66).
In
the present case, the applicant had in 1998 obtained a forged
passport and birth certificate stating a false identity, indicating
that he was a Portuguese national named Jose Joao Olas Pinto and was
born on 1 March 1969. He submitted that passport when he
applied to the Norwegian authorities for a work- and residence permit
in Norway as an EEA citizen, which was granted to him for five years
from 13 April 2000 to 13 April 2005 on the basis of the false
identity information contained in that document. Under the guise of
this false identity and supporting this with the forged passport, the
applicant subsequently applied for renewal of the permit on two
occasions and for Norwegian citizenship. Thus, the Court observes
that, since he had not been entitled to any of the permits obtained,
at no time had his residence in Norway been lawful (see Nunez,
cited above, §§ 67 and 72, cf. Rodrigues da Silva and
Hoogkamer, cited above, § 43). On the same approach as
that adopted in the afore-mentioned Nunez judgment, the
Court will have regard to the following principles stated therein:
“68. ...[W]hile the essential object of
[Article 8] is to protect the individual against arbitrary action by
the public authorities, there may in addition be positive obligations
inherent in effective ‘respect’ for family life. However,
the boundaries between the State’s positive and negative
obligations under this provision do not lend themselves to precise
definition. The applicable principles are, nonetheless, similar. In
both contexts regard must be had to the fair balance that has to be
struck between the competing interests of the individual and of the
community as a whole; and in both contexts the State enjoys a certain
margin of appreciation (see Konstatinov v. the Netherlands,
no. 16351/03, § 46, 26 April 2007; Tuquabo-Tekle and Others
v. the Netherlands, no. 60665/00, § 42, 1 December
2005; Ahmut v. the Netherlands, 28 November 1996, § 63,
Reports of Judgments and Decisions 1996 VI; Gül
v. Switzerland, 1 February 1996, § 63, Reports
of Judgments and Decisions 1996 I; Powell and Rayner v.
the United Kingdom, 21 February 1990, § 41, Series A
no. 172).
69. Since the applicable principles are
similar, the Court does not find it necessary to determine whether in
the present case the impugned decision, namely the order to expel the
applicant with a two-year prohibition on re-entry, constitutes an
interference with her exercise of the right to respect for her family
life or is to be seen as one involving an allegation of failure on
the part of the respondent State to comply with a positive
obligation.
70. The Court further reiterates that
Article 8 does not entail a general obligation for a State to respect
immigrants’ choice of the country of their residence and to
authorise family reunion in its territory. Nevertheless, in a case
which concerns family life as well as immigration, the extent of a
State’s obligations to admit to its territory relatives of
persons residing there will vary according to the particular
circumstances of the persons involved and the general interest (see
Gül, cited above, § 38; and Rodrigues da Silva
and Hoogkamer, cited above, § 39). Factors to be taken into
account in this context are the extent to which family life is
effectively ruptured, the extent of the ties in the Contracting
State, whether there are insurmountable obstacles in the way of the
family living in the country of origin of one or more of them and
whether there are factors of immigration control (for example, a
history of breaches of immigration law) or considerations of public
order weighing in favour of exclusion (see Rodrigues da Silva and
Hoogkamer, cited above, ibid.; Ajayi and Others v. the United
Kingdom (dec.), no. 27663/95, 22 June 1999; Solomon
v. the Netherlands (dec.), no. 44328/98, 5 September
2000). Another important consideration is whether family life was
created at a time when the persons involved were aware that the
immigration status of one of them was such that the persistence of
that family life within the host State would from the outset be
precarious (see Jerry Olajide Sarumi v. the United Kingdom
(dec.), no. 43279/98, 26 January 1999; Andrey Sheabashov c.
la Lettonie (dec.), no. 50065/99, 22 May 1999). Where this
is the case the removal of the non-national family member would be
incompatible with Article 8 only in exceptional circumstances (see
Abdulaziz, Cabales and Balkandali, cited above, § 68;
Mitchell v. the United Kingdom (dec.), no. 40447/98,
24 November 1998, and Ajayi and Others, cited above;
Rodrigues da Silva and Hoogkamer, cited above, ibid.).”
In
applying the above principles to the present case, the Court notes in
the first place that the impugned expulsion and five-year prohibition
on re-entry had been imposed on the first applicant in view of
the gravity of his violations of the Immigration Act. The Court sees
no reason to question the assessment of the national immigration
authorities and courts as to the aggravated character of the first
applicant’s administrative offences under the Act. Moreover, as
already held on previous occasions, the possibility for the
authorities to react with expulsion would constitute an important
means of general deterrence against gross or repeated violations of
the Immigration Act (see Nunez, cited above, § 71, and
Darren Omoregie and Others v. Norway, no. 265/07, §
67, 31 July 2008; see also Kaya v. the Netherlands (dec.) no
44947/98, 6 November 2001). A scheme of implementation of national
immigration law which, as here, is based on administrative sanctions
in the form of expulsion does not as such raise an issue of failure
to comply with Article 8 of the Convention (see Nunez and
Darren Omoregie and Others, cited above, ibidem). In the
Court’s view, the public interest in favour of ordering the
applicant’s expulsion weighed heavily in the balance when
assessing the issue of proportionality under Article 8 of the
Convention (see Nunez, cited above, § 73).
Moreover,
when the first applicant initially settled in Norway in the autumn of
1999, he had no other links to the country than the second applicant
who had invited him and with whom he started cohabiting soon after
his arrival. Whilst aware that his application for an EEA residence
permit in 1999 had been granted on the basis of misleading
information that he had provided about his identity and country of
origin, he had a child with the second applicant in September 2001
and they got married in February 2005. At no stage from when he
entered Norway in the autumn of 1999 until being put on notice on 12
October 2005 could he reasonably have entertained any expectation of
being able to remain in the country.
Furthermore,
the first applicant had grown up in Ghana, where his family lived,
and had arrived in Norway at an adult age. His links to Norway could
not be said to outweigh those of his home country and had in any
event been formed through unlawful residence and without any
legitimate expectation of being able to remain in the country.
Like
the first applicant, the second applicant had grown up in
Ghana. There she had lived until the age of seventeen when she was
reunited with her father and siblings in Norway. Although she had
become a Norwegian citizen and had family ties and employment links
to Norway and probably would experience some difficulties in
resettling in Ghana, there does not seem to be any particular
obstacle preventing her from accompanying the first applicant to
their country of origin. The Court has also taken note of her claim
that, although aware that the first applicant originally had a
Ghanaian background and had obtained a Ghanaian passport in
connection with their marriage in Ghana on 11 February 2005, she
should only have become aware of his true identity in this context.
However, the above mentioned factors cannot in the Court’s
view outweigh the public interest in sanctioning the first
applicant’s aggravated offences against the immigration rules
with the impugned measure.
As
to the third applicant, the Court notes that she is a
Norwegian national who since birth has spent her entire life in
Norway, is fully integrated into Norwegian society and, according to
the material submitted to the Court, speaks Norwegian with her
parents at home. In comparison, her direct links to Ghana are very
limited, having visited the country three times (see paragraph 44
above) and having little knowledge of the languages practiced there.
Furthermore,
as a result of the first applicant no longer holding a work permit
and staying full-time at home and of the second applicant’s
being particularly occupied by her work, the first applicant assumes
an important role in the third applicant’s daily care and
up-bringing. He is the parent who follows up her home-work and
parental contacts with her school and who facilitates her
participation in sport activities. She is also at an age, ten years,
when this kind of support would be valuable and she is strongly
attached to her father as she is to her mother.
It
would most probably be difficult for her to adapt to life in Ghana,
were she and her mother to accompany the father to Ghana, and to
readapt to Norwegian life later.
Against
this background, the Court shares the High Court’s view that
the implementation of the expulsion order would not be beneficial to
her.
However,
the Court sees no reason to call into doubt the High Court’s
findings to the effect that, both parents having been born and
brought up in Ghana and having visited the country three times with
their daughter, there were no insurmountable obstacles in the way of
the applicants settling together in Ghana or, at the least, to
maintaining regular contacts. As to the allegation that the third
applicant’s rashes had been aggravated by heat during her
previous stays in Ghana, the High Court majority found that this had
not been sufficiently documented and could not be relied upon. The
minority agreed that the evidence submitted in support of this
contention had been weak and observed that the information appeared
to have originated from the first and the second applicants. In the
proceedings before the Court, the applicants submitted no further
evidence in support of this argument or placed emphasis on it.
As
also observed by the High Court, it does not emerge that the
third applicant had any special care needs or that her mother
would be unable to provide satisfactory care on her own.
Moreover,
the Court considers that there are certain fundamental differences
between the present case and that of Nunez where it found that
the impugned expulsion of an applicant mother would give rise to a
violation of Article 8 of the Convention. In reaching this finding,
the Court attached decisive weight to the exceptional circumstances
pertaining to the applicant’s children in that case, which were
recapitulated in the following terms in its judgment (cited above, §
84):
“Having regard to all of the above considerations,
notably the children’s long lasting and close bonds to their
mother, the decision in the custody proceedings [to move the children
to the father], the disruption and stress that the children had
already experienced and the long period that elapsed before the
immigration authorities took their decision to order the applicant’s
expulsion with a re-entry ban, the Court is not convinced in the
concrete and exceptional circumstances of the case that sufficient
weight was attached to the best interests of the children for the
purposes of Article 8 of the Convention.”
Unlike
what had been the situation of the children of Mrs Nunez, the third
applicant had not been made vulnerable by previous disruptions and
distress in her care situation (compare Nunez, cited above, §§
79 to 81).
Also,
the duration of the immigration authorities’ processing of the
matter was not so long as to give reason to question whether the
impugned measure fulfilled the interests of swiftness and efficiency
of immigration control that was the intended purpose of such
administrative measures (compare Nunez, cited above, §
82). On the contrary, in October 2005, only a few months after the
discovery of the first applicant’s fraud in July 2005, he was
put on notice that he might be expelled from Norway. In May 2006 the
Directorate ordered his expulsion and prohibition on re-entry and
gave him until 24 July 2006 to leave the country.
There
being no exceptional circumstances at issue in the present case, the
Court is satisfied that sufficient weight was attached to the best
interests of the child in ordering the first applicant’s
expulsion.
The
above considerations are not altered by the duration of the
prohibition on re-entry – five years. In this connection, the
Court reiterates that in a comparable case, Darren Omoregie (cited
above, §§ 63-68), it found no violation of Article 8 of the
Convention with respect to an expulsion order with a re-entry ban of
the same duration imposed on the applicant father in that case in
reaction to offences against the immigration rules involving unlawful
stay and work in the country. The offences committed by the first
applicant in the present case, obtaining a residence permit on the
basis of incorrect and misleading information about his identity and
nationality supported by a forged passport, were of a more serious
nature. In the Court’s view, it is clear that the corresponding
public interest in the administrative sanction imposed on him cannot
have been less than that which was at issue in the afore-mentioned
case.
In
light of the above, the Court does not find that the national
authorities of the respondent State acted arbitrarily or otherwise
transgressed the margin of appreciation which should be accorded to
it in this area when seeking to strike a fair balance between its
public interest in ensuring effective immigration control, on the one
hand, and the applicants’ need that the first applicant be able
to remain in Norway, on the other hand.
Accordingly,
the Court concludes that the first applicant’s expulsion from
Norway with a five-year re-entry ban would not entail a violation of
Article 8 of the Convention.
II. RULE 39 OF THE RULES OF COURT
The
Court recalls that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
It
considers that the indication made to the Government under Rule 39
of the Rules of Court (see paragraph 4 above) must continue in force
until the present judgment becomes final or until the Court takes a
further decision in this connection (see operative part).
FOR THESE REASONS, THE COURT
Declares the application admissible unanimously;
Holds by five votes to two that the first
applicant’s expulsion from Norway with a five-year re-entry ban
would not entail a violation of Article 8 of the Convention;
Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is desirable
in the interests of the proper conduct of the proceedings not to
expel the first applicant until such time as the present judgment
becomes final or until further order.
Done in English, and notified in writing on 14 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Sicilianos, joined by Judge Lazarova Trajkovska, is annexed to this
judgment.
N.A.V.
S.N.
DISSENTING OPINION OF JUDGE SICILIANOS,
JOINED BY
JUDGE LAZAROVA TRAJKOVSKA
We
have been unable to join the majority in this case, especially in
view of the Nunez v. Norway judgment (application no.
55597/09, 28 June 2011) and the necessity of a coherent
interpretation and implementation of the principle of the best
interests of the child.
The “best interests of the child” as a guiding
principle
As
it is well-known, such principle is embodied in Article 3 of the
United Nations Convention on the Rights of the Child (see generally
P. Alston (ed.), The Best Interests of the Child: Reconciling
Culture and Human Rights (1994); L. LaFave, “Origins of the
Evolution of the ‘Best Interests of the Child’ Standard”,
34 South Dakota Law Review (1989), pp. 459 ff.; S.
Detrick, A Commentary on the United Nations Convention on the
Rights of the Child (1999), pp. 85 ff.; P. Naskou-Perraki,
K. Chrysogonos, X. Anthopoulos (ed.), The International
Convention on the Rights of the Child and the Domestic Legal Order
(2002), pp. 45 ff. (in Greek)). According to paragraph 1 of this
provision: “In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts
of law, administrative authorities and legislative bodies, the best
interests of the child shall be a primary consideration”. The
reference to “private social welfare institutions”
suggests that the principle of the best interests of the child is
relevant in relation to actions of private bodies. However, the
emphasis of the above quoted provision is on public institutions,
including courts of law and administrative authorities. To put it
with a well-known commentator, “the principle of the best
interests of the child is primarily concerned with acts of public
officials” (S. Detrick, op. cit., p. 90). As
underlined by the Committee on the Rights of the Child: “The
principle requires active measures throughout Government, parliament
and the judiciary. Every legislative, administrative and judicial
body or institution is required to apply the best interests principle
by systematically considering how children’s rights and
interests are or will be affected by their decisions and actions -
by, for example, a proposed or existing law or policy or
administrative action or court decision, including those which are
not directly concerned with children, but indirectly affect children”
(General Comment No. 5 (2003), “General Measures of
Implementation of the Convention on the Rights of the Child”,
CRC/GC/2003/5).
The
notion of “best interests” is broad enough to encompass
different aspects of the well-being of a child. As observed by the UN
High Commissioner for Refugees: “Such well-being is determined
by a variety of individual circumstances, such as the age, the level
of maturity of the child, the presence or absence of parents, the
child’s environment and experiences” (UNHCR, Guidelines
on Determining the Best Interests of the Child, May 2008).
Furthermore, the principle of the best interests of the child is of
particular significance because it provides a general standard to be
applied “in all actions concerning children”. Such
principle is relevant in respect to most if not all substantive
provisions of the Convention on the Rights of the Child (R. Hodgkin,
P. Newell, Implementation Handbook for the Convention on the
rights of the child, UNICEF (1998), p. 40). It constitutes a
general principle of interpretation of this Convention as a whole. It
is true that Article 3, § 1 quoted above uses the expression “a
primary consideration” instead of “the primary
consideration”. As it results from the travaux
préparatoires, the aim of the Convention’s drafters
implicit in choosing the word “a” was to ensure a certain
degree of flexibility, at least in extreme cases, to permit the
interests of people other than the child to prevail (S. Detrick, op.
cit., p. 91). However, the formulation adopted seems to impose a
burden of proof on those seeking to put the interests of the child
aside to demonstrate that, under the circumstances, other feasible
and acceptable alternatives do not exist (P. Alston, “The
Best Interests Principle: Towards a Reconciliation of Culture and
Human Rights”, in P. Alston (ed.), op. cit., pp. 1-25,
at 13).
The
principle of the best interests of the child appears either
explicitly or implicitly in a number of other international and
European instruments (cf. for instance Principles 2 and 7 of the 1959
UN Declaration of the Rights of the Child; Articles 5 (b) and 16 (1)
(d) of the 1979 UN Convention on the Elimination of All Forms of
Discrimination Against Women; preamble, § 1 of the
Hague Convention on the Civil Aspects of International Child
Abduction of 25 November 1980; Articles 4 (1), 6, 9, 14 and 19 of the
European Convention on the Adoption of Children (revised), 27
November 2008; Article 24 of the EU Charter on Fundamental Rights),
as well as in national legislations (see for example P.
Naskou-Perraki, K. Chrysogonos, X. Anthopoulos (ed.), op. cit.,
pp. 48 ff.; cf. also the judgments by national courts cited in
Neulinger and Shuruk v. Switzerland, no. 41615/07 (GC),
§§ 61-64, 6 July 2010). It is also to be noted that in
some such cases the relevant provisions go beyond the aforementioned
formulation of the Convention on the Rights of the Child (“a
primary consideration”) by stipulating that “the best
interests of the child shall always be the paramount
consideration” (Article 14, § 1 of the European
Convention on the Adoption of Children, italics added; cf. also
Article 5 b) of the 1979 UN Convention on the Elimination of All
Forms of Discrimination Against Women). Given its broad acceptance,
it seems that the principle of the best interests of the child has
become a general principle of (international) law.
This
approach is corroborated by the repeated references to such principle
in the case law of the Court, especially in relation to Article 8 of
the Convention. To resume this important jurisprudence goes far
beyond the object and purpose of the present opinion. Suffice it to
recall in this respect the terms of the Grand Chamber, according to
which: “The Court notes that there is currently a broad
consensus – including in international law – in support
of the idea that in all decisions concerning children, their best
interests must be paramount” (Neulinger and Shuruk v.
Switzerland, cited above, § 135). In this context, the Court
has repeatedly underlined that: “The child’s interest
(...) dictates that the child’s ties with its family must be
maintained, except in cases where the family has proved particularly
unfit. It follows that family ties must only be severed in very
exceptional circumstances and that everything must be done to
preserve personal relations...” (ibid., § 136;
Gnahoré v. France, no. 40031/98, § 59,
ECHR 2000-IX). It is also important to note that, although the
landmark case of Neulinger and Shuruk concerned the abduction
of a child, the Grand Chamber took the view that guidance on this
point may be found mutatis mutandis in the case-law of the
Court on the expulsion of aliens (see also, for instance, Emre v.
Switzerland, no. 42034/04, § 68, 22 May 2008), “according
to which, in order to assess the proportionality of an expulsion
measure concerning a child who has settled in the host country, it is
necessary to take into account the child’s best interests and
well-being” (Neulinger and Shuruk, cited above, §
146. See also Üner v. the Netherlands
[GC], no. 46410/99, § 57, ECHR 2006-XII). Finally, the Court has
stressed that “the passage of time can have irremediable
consequences for relations between the child and the parent with whom
he or she does not live” (Macready v. the Czech Republic,
nos 4824/06 and 15512/08, 22 April 2010; Maumousseau and
Washington v. France, no. 39388/05, § 83, ECHR 2007-XIII).
Application of the principle in the present case
The
application of the principle of the best interests of the child in
the present case raises a number of questions. The Norwegian
authorities themselves have been somehow divided over the issue. It
is recalled that in its judgment of 28 March 2008, the Oslo City
Court quashed the Immigration Appeals Board’s decision to expel
the first applicant, noting that to deprive the third applicant of
her relationship with her father would be a serious measure and could
have disturbing effects on the child’s development. According
to the City Court, such a measure would be disproportionate vis-à-vis
the first applicant’s daughter (supra, § 28 of the
judgment). In the same vein, the minority of the High Court was of
the view that the imposition of a five-year re-entry ban would be too
severe and disproportionate a measure and that a two-year ban would
have been preferable. The minority took especially into account the
age of the third applicant and her close relationship with her
father, noting that since birth the first applicant had taken special
care of his daughter, following her up in her recreational activities
and through extensive contacts with her school. In relation to the
first applicant’s offences under the Immigration Act, the
minority of the High Court rightly observed that they had been
comparable to those committed by the applicant in the Nunez
case, though less aggravated bearing in mind that he had not
committed other offenses in Norway and had not defied any prohibition
of re-entry (supra, §§ 46-48).
Furthermore,
it is striking that the majority of the High Court explicitly
acknowledged that the consequences of the first applicant’s
expulsion would “clearly not” be in the best interests of
the daughter, who was born and had grown up in Norway and was very
attached to her father (supra, § 38). However, the High
Court concluded that the interests of the child should not be a
decisive consideration in assessing whether an expulsion measure
should be implemented and that the five-year ban was not a
disproportionate measure (supra, §§ 40-41).
In
view of the above elements, we have serious difficulties to follow
the majority when stating that: “the Court is satisfied that
sufficient weight has been attached to the best interests of the
child in ordering the first applicant’s expulsion”
(supra, § 103). Admit that the impugned measure was
“clearly not” in – i.e. against - the best
interests of the third applicant, while at the same time affirming
that such interests have been duly taken into account seems to pay
lip service to a guiding human rights principle. All the more so
that, taking into account the normal processing time for a request
for family reunification, the daughter – who is today eleven
years old – would be about eighteen years before the family
could resume cohabitation in Norway. As rightly observed by the
minority of the High Court, the years in between would be important
years (supra, § 48). To put it otherwise, the expulsion
order, combined with the five-year re-entry ban could entail a
serious disruption of the third applicant’s adolescence.
This
result seems to us to be in contradiction to the Court’s
judgment in the Nunez case, cited above. Contrary to the
opinion of the majority, the present case is very similar to Nunez.
In this last case, the Court noted the “aggravated character”
of the breaches under the Immigration Act, as well as other criminal
offences by the applicant (Nunez, cited above, §§
67, 72). For another comparable case under Article 8, involving
serious breaches of the relevant immigration legislation, as well as
other criminal offences (see Konstatinov v. the Netherlands,
no. 16351/03, §§ 9-12, 49 ff., 26 April 2007). As observed
by the minority of the High Court, the (administrative) offences of
the first applicant in the present case were “less aggravated”
than those of the applicant in the Nunez case. Furthermore, in
the Nunez case, the Court took note of the rationale of the
Norwegian legislation in authorizing the imposition of expulsion with
a re-entry ban as an administrative sanction (ibid., §
71). Such possibility would indeed constitute an important means of
general deterrence against gross or repeated violations of the
Immigration Act. Under those circumstances, the Court considered that
“the public interest in favour of ordering the applicant’s
expulsion weighted heavily in the balance when assessing the issue of
proportionality under Article 8 of the Convention” (ibid.,
§ 73). However, taking mainly into account the age of the
applicant’s children and their close bonds to their mother, the
Court concluded that the expulsion order with a two-year re-entry ban
– “a very long period for children of the ages in
question” (nine and eight years old respectively) – would
entail a violation of Article 8 of the Convention (ibid., §§
81-85).
Those
considerations also apply in the present case. All the more so that
in Nunez the re-entry ban was much shorter (two years instead
of five). Furthermore, since May 2007 and until the adoption of the
Nunez judgment in June 2011, i.e. for more than four years,
the applicant did not have the daily care of her children and the
relevant parental responsibilities, which had been granted
exclusively to the father following the separation of the couple. In
other words, the bonds of the applicant with her children in the
Nunez case were in fact (and in law) much less close than those of
the first applicant with his daughter in the present case. To put it
otherwise: if there is indeed a difference between Nunez and
the present case, this lies in the fact that the latter is even more
striking than the former. Consequently, the solution in Nunez
should have been applied in the present case a fortiori.
In
conclusion, the decision to expel the first applicant from Norway
with a five-year re-entry ban would entail, in our view, a violation
of Article 8 of the Convention in respect of his daughter, the
third applicant.
