Zitieren als:
EGMR, Urteil vom 12.01.2010 - 47486/06 (A.W. Khan gegen Großbritannien) - M18692

Unter besonderer Berücksichtigung der Dauer, die sich der Betroffene im Aufnahmestaat aufhält und des Alters, in welchem er dorthin einreiste, des Mangels an anhaltenden Bindungen zu seinem Heimatstaat, der Stärke seiner Bindungen zum Aufnahmestaat und der Tatsache, dass der Beschwerdeführer seit seiner Entlassung aus dem Gefängnis im Jahre 2006 nicht wieder straffällig wurde, hat der Gerichtshof entschieden, dass die Abschiebung des wegen eines schweren Drogendelikts verurteilten Beschwerdeführers nicht verhältnismäßig ist, um das legitime Ziel zu erreichen und deshalb nicht in einer demokratischen Gesellschaft notwendig ist.

Schlagwörter: Achtung des Privatlebens, Aufenthaltsdauer, Integration, Entwurzelung, Verwurzelung, Ausweisung, Drogendelikt, Abschiebung, Achtung des Familienlebens,
Normen: EMRK Art. 8,


2. The Court's assessment

(a) Was there an interference with the applicant's right to respect for his family and private life?

31. The Government have accepted that the applicant's deportation would interfere with his private life as reflected in his relationship with his mother and brothers, and the Court endorses this view. The Court also recalls that, as Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual's social identity, it must be accepted that the totality of social ties between settled migrants such as the applicants and the community in which they are living constitutes part of the concept of "private life" within the meaning of Article 8. Regardless of the existence or otherwise of a "family life", and having regard to the considerable period of time he has lived in the United Kingdom, the expulsion of the applicant would therefore constitute an interference with his right to respect for his private life.

The Court recalls that it will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the "family life" rather than the "private life" aspect (see Maslov v. Austria [GC], no. 1638/03, ECHR 2008 § 63).

32. In immigration cases the Court has held that there will be no family life between parents and adult children unless they can demonstrate additional elements of dependence (Slivenko v. Latvia [GC], no. 48321/99, § 97, ECHR 2003 X; Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000). The Court does not accept that the fact that the applicant was living with his mother and brothers, or the fact that the entire family suffered from different health complaints, constitutes a sufficient degree of dependence to result in the existence of family life. In particular, the Court notes that in addition to his two brothers, the applicant also has three married sisters who live in the United Kingdom. It does not, therefore, accept that the applicant is necessarily the sole carer for his mother and brothers. Moreover, while his mother and brothers undoubtedly suffer from health complaints, there is no evidence before the Court which would suggest that these conditions are so severe as to entirely incapacitate them.

33. The applicant has only recently informed the Court that he was in a long term relationship with a British citizen. In November 2008 he informed the Court that his girlfriend was pregnant and was due to give birth in December. In April 2009 the applicant informed the Court that his girlfriend had given birth to a baby girl.

34. It is clear from the Court's case-law that children born either to a married couple or to a co-habiting couple are ipso jure part of that family from the moment of birth and that family life exists between the children and their parents (see Lebbink v. the Netherlands, no. 45582/99, § 35, ECHR 2004-IV). Although co-habitation may be a requirement for such a relationship, however, other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto family ties (Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297-C). Such factors include the nature and duration of the parents' relationship, and in particular whether they had planned to have a child; whether the father subsequently recognised the child as his; contributions made to the child's care and upbringing; and the quality and regularity of contact (see Kroon, cited above, §30; Keegan v. Ireland, 26 May 1994, § 45, Series A no. 290; Haas v. the Netherlands, no. 36983/97, § 42 ECHR 2004-I and Camp and Bourimi v. the Netherlands, no. 28369/95, § 36, ECHR 2000-X).

35. In the present case the Court notes that the applicant and his girlfriend have been in a relationship since August 2005; the applicant has recognised his daughter and is named as the father on her birth certificate; although the conditions of his bail prevent the applicant from living with his girlfriend and their daughter, he has contact with them on a daily basis. The Court therefore finds that the relationship has sufficient constancy to create de facto family ties.

36. Accordingly, the Court accepts that the measures complained of interfered with both the applicant's "private life" and his "family life". Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being "in accordance with the law", as pursuing one or more of the legitimate aims listed therein, and as being "necessary in a democratic society" in order to achieve the aim or aims concerned.

(b) "In accordance with the law"

37. It is not in dispute that the impugned measure had a basis in domestic law, namely section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999).

(c) Legitimate aim

38. It is also not in dispute that the interference served a legitimate aim, namely "the prevention of disorder and crime" and "the protection of health or morals".

(d) "Necessary in a democratic society"

39. The principal issue to be de termined is whether the interference was "necessary in a democratic society". The relevant criteria that the Court uses to assess whether an expulsion measure is necessary in a democratic society have recently been summarised as follows (see Üner v. the Netherlands [GC], no. 46410/99, §§ 57 - 58, ECHR 2006 -...):

"57. Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court's case-law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, the judgments in Moustaquim v. Belgium, Beldjoudi v. France and Boultif v. Switzerland, [cited above]; see also Amrollahi v. Denmark, no. 56811/00, 11 July 2002; Yılmaz v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27 October 2005). In the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in paragraph 40 of the Chamber judgment in the present case, are the following:

- the nature and seriousness of the offence committed by the applicant;

- the length of the applicant's stay in the country from which he or she is to be expelled;

- the time elapsed since the offence was committed and the applicant's conduct during that period;

- the nationalities of the various persons concerned;

- the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;

- whether the spouse knew about the offence at the time when he or she entered into a family relationship;

- whether there are children of the marriage, and if so, their age; and

- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.

58. The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:

- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

- the solidity of social, cultural and family ties with the host country and with the country of destination."

40. The Court reiterates that in view of the devastating effects of drugs on people's lives, it understands why the authorities show great firmness with regard to those who actively contribute to the spread of this scourge (Dalia v France, cited above, § 54; Bhagli v France, cited above, § 48). The applicant's offence was particularly serious as it involved the importation of a significant quantity of heroin. The severity of the offence is reflected in the fact that the applicant was sentenced to seven years' imprisonment, taking account of his decision to plead guilty at a very early stage. The severity of this offence must therefore weigh heavily in the balance.

41. Nevertheless, the Court must also take into account the fact that the applicant had not previously committed any serious criminal offences in the United Kingdom, and has committed no further offences following his release in June 2006. Under the approach taken in the Boultif judgment (cited above, §51), the fact that a significant period of good conduct has elapsed following the commission of the offence necessarily has a certain impact on the assessment of the risk which the applicant poses to society.

42. As regards the applicant's private life, the Court accepts that the applicant has lived most of his life in the United Kingdom, having arrived there at the age of three, and no longer has any real social, cultural or family ties to Pakistan. The applicant has not returned to Pakistan, even for a short visit, and he has no immediate family in Pakistan.

43. In the United Kingdom the applicant has established close ties with his mother and two brothers, with whom he has lived for most of his life. The relationship clearly entails an additional degree of dependence which results from the relative ill-health of all of the parties. Although there is no evidence to suggest that the family would not be able to cope without the applicant, his removal would likely cause greater difficulties than would otherwise be the case.

44. With regard to the applicant's family life, the Court notes that the applicant has submitted that he and his girlfriend are in a stable relationship, and although they cannot live together as a family unit, the applicant enjoys regular contact with his girlfriend and their daughter. The applicant's girlfriend is a British citizen, who states that she has never lived anywhere other than the United Kingdom. She does not speak Urdu or Punjabi and has no family or friends in Pakistan. The applicant's girlfriend has therefore indicated that she would not be prepared to move to Pakistan if he were to be deported, although no circumstances have been identified which would inherently preclude her from living there.

45. Although the Court has no reason to doubt the applicant's claims, it observes that he has not sought to make fresh representations to the Home Office on the basis of his family life. In particular, the Court notes that despite making fresh representations to the Home Office in August 2008, the applicant did not mention that he had a pregnant girlfriend even though he must have known of the pregnancy at the time.

46. Moreover, the Court notes that the applicant's relationship with his girlfriend began in August 2005, while he was still serving his prison sentence. She was therefore fully aware of his criminal record at the beginning of the relationship.

47. Accordingly, no decisive weight can be attached to this family relationship.

48. The Court must also have regard to the duration of the deportation order. Although the Immigration Rules do not set a specific period after which revocation would be appropriate, it would appear that the latest the applicant would be able to apply to have the deportation order revoked would be ten years after his deportation.

49. Finally, the Court notes that while the applicant has not formally complained under Articles 2 or 3 of the Convention, he recently has indicated that he believes his life would be at risk on return to Pakistan as he has been receiving death threats from a co-defendant believed to be in Pakistan. The applicant has submitted no evidence capable of substantiating this claim and the Court is persuaded by the domestic authorities' finding that the failure to mention the threats, which allegedly began in 2006, at an earlier stage severely damaged the applicant's credibility.

50. In light of the above, having particular regard to the length of time that the applicant has been in the United Kingdom and his very young age at the time of his entry, the lack of any continuing ties to Pakistan, the strength of his ties with the United Kingdom, and the fact that the applicant has not reoffended following his release from prison in 2006, the Court finds that the applicant's deportation from the United Kingdom would not be proportionate to the legitimate aim pursued and would therefore not be necessary in a democratic society.

51. There would accordingly be a violation of Article 8 of the Convention if the applicant were deported to Pakistan. [...]