Bei der Prüfung, ob ein Recht auf Familienleben gem. Art. 8 EMRK besteht, ist Art. 3 der UN-KRK (Vorrang des Kindeswohls) von jeder staatlichen Behörde vorrangig zu berücksichtigen.
51. The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuit of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Dalia v. France, 19 February 1998, § 52, Reports 1998-I; Mehemi v. France, 26 September 1997, § 34, Reports 1997-VI; Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001?IX; and Slivenko cited above, § 113).
52. In Üner (§§ 57-58, cited above), the Grand Chamber has summarised the relevant criteria to be applied in determining whether interference, in the form of expulsion, is necessary in a democratic society:
- 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;
- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled;
- 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.
Moreover, when families with children are involved, the best interests of the child shall be a primary consideration for the public authorities in the assessment of the proportionality for the purposes of the Convention (Nunez v. Norway, no. 55597/09, § 84, 28 June 2011; Kanagaratnam v. Belgium, no. 15297/09, § 67, 13 December 2011; Popov v. France, nos. 39472/07 and 39474/07, § 109, 19 January 2012).
53. Lastly, the Court has also consistently held that the Contracting States have a certain margin of appreciation in assessing the need for interference, but it goes hand in hand with European supervision. The Court’s task consists in ascertaining whether the impugned measures struck a fair balance between the relevant interests, namely the individual’s rights protected by the Convention on the one hand and the community’s interests on the other (see Boultif, cited above, § 47, and Slivenko, cited above, § 113).
(b) Application to the facts of the case
54. The first factor which must be considered is the seriousness of the first applicant’s offences. The Court notes that his criminal record between 2005 and 2009 consists of four convictions, three of which related to criminal offences against other people’s property and the fourth to a traffic offence. The most severe sanction imposed on him for these offences was a nine-month prison sentence, suspended on probation. Furthermore, it appears that he did not reoffend after 2009.
55. Turning to the first applicant’s length of stay in Switzerland, the Court observes that he entered Swiss territory when he was an adult as an asylum seeker and never obtained a stable residence status. That being said, it must be noted that the asylum proceedings lasted for more than ten years until 7 September 2012, when the Federal Administrative Court gave its final decision on the applicant’s asylum claim.
56. With regard to the first applicant’s family situation, the Court has found above that he continues to have a relationship falling into the scope of Article 8 with the second applicant, who lends him support in coping with his illness, even after they separated in 2009 (see paragraph 34 above). In this context, the Court observes that the Federal Administrative Court expressly acknowledged that the first applicant’s state of health gave reason for concern and that, according to his attending doctor, his return to Ecuador in itself was likely to jeopardise his health, irrespective of the medical treatment he received (see paragraphs 18 and 19 above).
57. With regard to the first applicant’s relationship with his young daughter, the fourth applicant, the Court observes that he raised her with the second applicant and continued to involve himself in the child’s upbringing following their separation, as is reflected in the extensive access rights accorded to him. The Court further observes that the Federal Administrative Court considered that, given her integration into Swiss society, lack of knowledge about her country of origin, where she never returned after having entered Switzerland at the age of two, and the fact that she hardly spoke Spanish, it would amount to an "uprooting of excessive rigidity" to send her back to Ecuador (see paragraph 17 above). Under these circumstances, it can be expected that personal contact between the two applicants would, at the least, be drastically diminished if the first applicant were forced to return to Ecuador. The Court puts emphasis on the fact that the Federal Administrative Court, when considering the first applicant’s case, did not make any reference to the child’s best interests, because it did not consider that the relationship between them fell under the protection of "family life" within the meaning of Article 8 of the Convention. Under these circumstances, the Court is not convinced that sufficient weight was attached to the child’s best interests. Reference is made in this context also to Article 3 of the UN Convention on the Rights of the Child, in accordance with which the best interests of the child shall be a primary consideration in all actions taken by public authorities concerning children (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010, and Nunez, cited above, § 84).
58. In the light of the above considerations, having regard to the moderate nature of the criminal offences committed by the applicant, his poor state of health and, in particular, the domestic authorities’ failure to give consideration to the first and fourth applicants’ mutual interest in remaining in close personal contact, the Court finds that the respondent State overstepped the margin of appreciation afforded to it in the present case.
59. Accordingly, there would be a violation of Article 8 of the Convention in the event of the first applicant’s expulsion. [...]
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