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EGMR, Urteil vom 31.07.2008 - 265/07 - M14777

Die Ausweisung eines Ausländers, der nie eine Bleiberechtsperspektive hatte, ist trotz Ehe mit einem Staatsangehörigen des Unterzeichnerstaates und eines gemeinsamen Kindes nicht unverhältnismäßig, wenn keine besonderen Umstände vorliegen.


Schlagwörter: Ausweisung, Schutz von Ehe und Familie, Kinder, Eltern-Kind-Verhältnis, EMRK, Verhältnismäßigkeit
Normen: EMRK Art. 8

Die Ausweisung eines Ausländers, der nie eine Bleiberechtsperspektive hatte, ist trotz Ehe mit einem Staatsangehörigen des Unterzeichnerstaates und eines gemeinsamen Kindes nicht unverhältnismäßig, wenn keine besonderen Umstände vorliegen.

(Leitsatz der Redaktion)


43. The applicants complained that the first applicant's expulsion to Nigeria would entail a violation of their right to respect for private and family life in violation of Article 8 of the Convention, which in so far as relevant, provides:

"1. Everyone has the right to respect for his private and family life ....

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."

53. At the outset the Court finds it clear that the relationships between the applicants constituted "family life" for the purposes of Article 8 of the Convention, which provision is therefore applicable to the instant case.

54. Turning 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 (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997-VI, p. 2264, § 42). The Convention does not guarantee the right of an alien to enter or to reside in a particular country. The applicant entered Norway on 25 August 2001 and was expelled to Nigeria on 7 March 2007. Pending his appeal to the Immigration Appeals Board against the Directorate of Immigration's rejection of his asylum request on 22 May 2002, he was granted a stay of execution of his expulsion and a temporary work permit but at no time was he granted lawful residence in Norway (cf. Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 43, ECHR 2006-). As from 11 September 2002, when the Immigration Appeals Board rejected his appeal, he was under an obligation to leave the country and was given until 30 September 2002 to do so. His continued stay there beyond that time-limit was unlawful. As from February 2003 the first applicant applied for a right to stay in the country on a new ground, namely family reunification with the second applicant, but also this request was rejected and he was ordered to leave the country. The Court is not persuaded by the applicants' submission to the effect that, pending the latter decision, the first applicant's continued stay in Norway was not merely tolerated, as argued by the Government, but an entitlement.

55. However, it is to be noted that the first and the second applicants got married in Norway on 2 February 2003. The genuineness of their marriage has not been called into question and a child from the couple, the third applicant, was born on 20 September 2006. The family remained united and lived in Norway until the first applicant's expulsion on 7 March 2007. In these circumstances the Court considers that the impact of the impugned measures constituted an interference with the applicants' right to respect for family life under Article 8 § 1 of the Convention (cf. Rodrigues da Silva and Hoogkame, cited above, § 38).

56. As to the further question whether the interference was justified under Article 8 § 2, the Court is satisfied that it had a legal basis in national law, namely section 29(1)(a) and (4) of the Immigration Act, and that it pursued the legitimate aims of preventing "disorder or crime" and protecting the "economic well-being of the country". Indeed this seems undisputed. However, a question arises whether the interference was necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aims pursued (see, as a recent authority, Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-...).

57. In assessing the question of necessity, the Court will have regard to the various factors indicated in paragraphs 57 to 59 of the above-mentioned Üner judgment. The State must strike a fair balance 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. Moreover, 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 v. Switzerland, judgment of 19 February 1996, Reports 1996-I, pp. 174-75, § 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, ibidem; 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, ibidem).]

58. In this regard the Court first observes that when the first applicant arrived and applied for asylum in Norway on 25 August 2001, he was an adult and had no links to the country. His family links to the second and third applicants were formed at different stages during his stay in the country.

60. On 2 February 2003, while the first applicant was staying illegally in Norway, he got married to the second applicant. Because of his lack of residence status the marriage had not been contracted in accordance with domestic law, though this shortcoming did not deprive the marriage of its validity.

61. In the Court's view, at no stage prior to their marriage on 2 February 2003 could the first and the second applicants have reasonably held any expectation that he would be granted leave to remain in Norway.

62. This state of affairs was not changed, but was confirmed rather, by the developments in the case in the ensuing period. On 14 February 2003 the first applicant made a new request on the ground of family reunification with the second applicant, but again his request was rejected and he was ordered to leave the country, in a decision of 26 April 2003, notified to him on 7 May 2003. Therefore the applicant could not reasonably expect a right to reside in Norway based on these proceedings.

63. Moreover, on account of the first applicant's unlawful stay in Norway for four months and a half from September 2002 to February 2003 and for his having worked there unlawfully without a work permit for nine months from September 2002 to July 2003, the Directorate of Immigration decided on 26 August 2003 firstly that he should be expelled pursuant to section 29(1)(a) of the Immigration Act and secondly be prohibited to re-enter Norway for five years (with a possibility of re-entry on application normally after two years). To the Court's understanding, the first part of the decision represented hardly anything new but was rather a renewed response to the first applicant's failure to comply with previous orders to leave the country. The decision of 26 August 2003 was upheld by the Immigration Appeals Board on 21 July 2004 and by the appellate courts respectively on 27 February and 14 June 2006. At each level (including the City Court which held in his favour on 15 February 2005) it was found established that the basic condition for expelling the first applicant – that he had seriously or repeatedly violated the Immigration Act or had defied implementation of the decision that he should leave the country – had been fulfilled. It is true that the City Court found the measure disproportionate but that finding was not final and was overturned by the High Court and leave to appeal was refused by the Appeals Leave Committee of the Supreme Court.

64. Against this background the Court does not consider that the first and second applicants, by confronting the Norwegian authorities with the first applicant's presence in the country as a fait accompli, were entitled to expect that any right of residence would be conferred upon him (see Roslina Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003; Yash Priya v. Denmark (dec.) 13594/03; 6 July 2006; cf. Rodrigues da Silva and Hoogkamer, cited above, § 43).

65. In the Court's view, the same considerations apply to the third applicant's birth on 20 September 2006, which fact could not of itself give rise to any such entitlement.

66. It should further be noted that the first applicant had lived in Nigeria since he was six months old until he left the country at the age of 22, had studied at university for four years and had three brothers with whom he was still in contact. Whereas his links to Nigeria were particularly strong, his links to Norway were comparatively weak, apart from the family bounds he had formed there with the second and third applicants pending the proceedings. The third applicant was still of an adaptable age at the time when the disputed measures were decided and implemented (see Ajayi and Others, cited above; Sarumi, cited above; and Sezai Demir c. France (dec.), no. 33736/03, 30 May 2006). The second applicant would probably experience some difficulties and inconveniences in settling in Nigeria, despite her experience from a period spent in another African country, South Africa, and the fact that English was also the official language of Nigeria. However, the Court does not find that there were insurmountable obstacles in the way of the applicants' developing family life in the first applicant's country of origin. In any event, nothing should prevent the second and third applicants from coming to visit the first applicant for periods in Nigeria.

67. Finally, the Court notes that the decision prohibiting the first applicant re-entry for five years was imposed as an administrative sanction, the purpose of which was to ensure that resilient immigrants do not undermine the effective implementation of rules on immigration control. Moreover, it was open to the first applicant to apply for re-entry already after two years.

68. Against this background, the Court does not find that the national authorities of the respondent State acted arbitrarily or otherwise transgressed their margin of appreciation when deciding to expel the first applicant and to prohibit his re-entry for five years. The Court is not only satisfied that the impugned interference was supported by relevant and sufficient reasons but also that in reaching the disputed decision the domestic authorities struck a fair balance between the personal interests of the applicants on the one hand and the public interest in ensuring an effective implementation of immigration control on the other hand. In view of the first applicant's immigration status, the present case disclosed no exceptional circumstances requiring the respondent State to grant him a right of residence in Norway so as to enable the applicants to maintain and develop family life in that country. In sum, the Court finds that the national authorities could reasonably consider that the interference was "necessary" within the meaning of Article 8 § 2 of the Convention. Accordingly, there has been no violation of Article 8 of the Convention.