EGMR

[...]

1. The case originated in an application (no. 47017/09) 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") by two Pakistani nationals, Ms Fozia and Mr Johangir Abbas Butt ("the applicants"), on 14 August 2009.

2. 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 at the Office of the Attorney General (Civil Affairs), as their Agent.

3. The applicants alleged that their deportation from Norway to Pakistan would entail a violation of their rights under Article 8 of the Convention.

4. On 7 June 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). [...]

2. The Court's assessment

76. The Court notes from the outset that the first and second applicants arrived in Norway in 1989 at the age of four and three years, respectively. Apart from an interval of three years and a half from the summer of 1992 to early 1996, they have lived there since then. Their mother went into hiding around the turn of the year 2000 - 2001, was expelled in 2005 and died in 2007. Their father remained in Pakistan. During most of their stay in Norway, the applicants lived at the home of their maternal uncle and aunt (their mother's brother and sister) with family in Oslo, who took care of them. As observed by the High Court in its judgment of 14 November 2008 (see paragraph 35 above) the applicants lived with them until 2005 and must therefore be presumed to have close emotional links to this part of the family. The Court further finds it established that the applicants lived with their uncle and aunt for most of the time thereafter. This was also where they had their friends and social network. They had received the essential part of their education and upbringing in Norway and mastered the Norwegian language to the full. It is obvious that with time the applicants had developed a strong personal and social attachment to Norway. The Court sees no reason to doubt that they both had such "family life" and "private life" in Norway as fall within the scope of protection of Article 8 of the Convention. The Government's suggestion that the private- and family life interests at stake were only at the fringes of the Article 8 rights must be rejected.

77. 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, for instance, Nunez v. Norway, no. 55597/09, § 66, 28 June 2011).

78. In the case under consideration, the Norwegian immigration authorities had granted the applicants' mother and, by extension, the applicants, a residence permit on the ground of strong humanitarian considerations on 28 February 1992 and then a settlement permit on 2 August 1995. They granted the latter permit whilst ignorant of the fact that the mother and the applicants had left for Pakistan in the summer of 1992 and on the basis of the false information provided by the mother that she and the applicants continued to reside in Norway. By virtue of their sojourn in Pakistan, their entitlement to residence in Norway ceased and, following their return to the country in early 1996, their stay there was in reality unlawful even though it was in August 1999 that their settlement permit was finally revoked (see paragraph 6 to 8 above). The Court therefore agrees with the Government that the applicants could not be viewed as "settled migrants" as this notion has been used in the case-law (see Üner, cited above, § 59; and Maslov, cited above, § 75). Accordingly, on the same approach as that adopted in the afore-mentioned Nunez judgment, the Court will have regard to the following principles stated therein (see also Antwi and Others v. Norway, no. 26940/10, § 89, 14 February 2012):

"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, 19 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.)."

79. In this regard the Court has noted the general approach of the Borgarting High Court that strong immigration policy considerations would in principle militate in favour of identifying children with the conduct of their parents, failing which there would be a great risk that parents exploited the situation of their children in order to secure a residence permit for themselves and for the children (see paragraph 34 above). The Court, seeing no reason for disagreeing with this general approach, observes that during a police interview on 15 November 1996 the applicants' mother conceded that she had previously given incorrect information to the police and other institutions about her own and her children's stay in Pakistan during this period. Thus, it seems that her children's family life was created in Norway at a time when she was aware that their immigration status in the country was such that the persistence of that family life would, since their return in 1996, be precarious (see Nunez, cited above, §§ 71-76). That was also the case of their private life in the country. From the above considerations, it follows that the removal of the applicants would be incompatible with Article 8 only in exceptional circumstances.

80. In assessing whether there were such exceptional circumstances, the Court observes in the first place that, as also held by the High Court, the need to identify children with the conduct of their parents could not always be a decisive factor; in the concrete case there had been no such risk of exploitation as mentioned above since the applicants had reached the age of majority and their mother had died (see paragraph 34 above).

81. Furthermore, already in connection with the application for family reunion, submitted by applicant's father in 1996, the immigration authorities were informed of the mother and the applicants' stay in Pakistan for most of the period from the summer of 1992 to early 1996. During the said police interview of 15 November 1996 the mother conceded that she had previously given incorrect information to the police and to other institutions about this in 1996 (see paragraph 79 above). However, without enquiring into the justification for the Directorate of Immigration's decision of January 1999 (upheld by the Immigration Appeals Board in August 1999) to revoke the applicants' and their mother's settlement permit, the Court has noticed the lapse of time between the said discovery in 1996 and the revocation of the permit in 1999 (see Nunez, cited above, paragraph 82).

82. Moreover, as found by the High Court, it was not until their arrest in May 2001 that the applicants had become aware of the irregular character of their residence status and, presumably also, that they had exceed the timelimit for their voluntary repatriation (see paragraphs 29 to 31 above). It thus appears that their family- and other social ties in the host State had already been formed when it was brought to their attention that the persistence of those ties would be precarious. Therefore, at least until then, they cannot be reproached, as suggested by the Government, for having confronted the authorities with a fait accompli (compare Darren Omoregie and Others, cited above, § 64).

83. On the contrary, as noted by the High Court, since the applicants' mother had gone into hiding, the immigration police shortly after their arrest released the applicants, who were then minors, and refrained from implementing the deportation without their mother. The authorities omitted to take any steps to arrange for the applicants' obtaining the passports required for their travelling. Because their mother had gone under ground, the applicants had been dependent on such assistance until they passed the age of majority. The Court sees no reason for disagreeing with the High Court's assessment that until they reached the age of majority - in 2003 and 2004, respectively - the applicants could reasonably perceive the situation as one where the authorities did not expect them to leave the country on their own and that it was difficult to ascribe any responsibility to them for not having taken any steps to do so while their mother had gone into hiding from the police (see paragraphs 31 and 33 above).

84. Nor is it apparent that the applicants could no longer reasonably entertain the same perception after they reached the age of majority. The authorities did not make any attempt to implement the deportation when, after having found their mother in September 2005, they forcibly sent her to Pakistan. The stated reason was to enable the applicants to attend a hearing due to open later in the same month before the Oslo City Court (see paragraph 32 above), the outcome of which went in their favour (see paragraph 12 above).

85. Also, the Court cannot but note the observation made by the High Court (in 2008) that, in view of the unusually long duration of the applicants' unlawful stay in Norway, it was questionable whether general immigration policy considerations would carry sufficient weight to regard the refusal of residence "necessary in a democratic society" (see paragraph 37 above).

86. In the Court's view, the above considerations do not imply that the authorities of the respondent State were responsible for the irregularities from 1996 onwards pertaining to the applicants' stay in Norway. They nonetheless militate strongly against identifying the applicants' conduct with that of their mother and bringing them to bear adverse consequences from this state of affairs (see, mutatis mutandis, Nunez, cited above, §§ 78-85).

87. In fact, for the reasons stated at paragraph 76 above, it was obvious that with time the applicants had developed strong family- and private life ties to Norway.

88. In contrast, the applicants' links to Pakistan were not particularly strong, bearing in mind the timing and duration of their residence there. They had not seen their father since returning to Norway in 1996 and their mother had died. Neither the fact that the applicants should have inherited a part of a house from their mother, currently occupied by their father, nor that they might be familiar with another uncle living in the same area as their father, nor any other factors, point to any solid links to Pakistan as suggested by the Government. According to the applicants they were unable to write Urdu and were speaking a "childish" Urdu. They both mastered English well, which was an official language in Pakistan. Although the applicants still had certain links to Pakistan and there would not appear to be insurmountable obstacles to them returning to the country, they might, as found by the High Court, encounter social and professional difficulties if they were to do so (see paragraph 36 above).

89. Finally, the Court has taken note of the Government's argument that, bearing in mind the seriousness of the criminal offences committed by the second applicant, his exclusion would clearly not be incompatible with Article 8 of the Convention. Whilst the seriousness was an important consideration in the first set of proceedings relating to the Immigration Appeals Board's decision of 31 May 2005 and ending with the Appeals Leave Committee of the Supreme Court refusal of leave to appeal of 16 January 2007, this does not seem to have been the case in the second set relating to the Board's rejection on 31 August 2007 of the applicants' request for reconsideration. The Board merely referred to the reasoning and conclusion in the earlier decisions, and the High Court upholding the Board's decision did not rely on the argument. Without entering into the justification for the Immigration Appeals Board's decision of 31 May 2005 to order the second applicant's expulsion, the Court notes that his conviction in 2003 concerned one incident of aggravated violent assault (see Maslov, cited above, § 85) and that a long period of time has elapsed since then. According to the information available to the Court, the second applicant has not reoffended since. Against this background the Court does not consider that this factor ought to carry significant weight in the instant case.

90. In the light of the above, the Court finds that the circumstances of the present case were indeed exceptional. It is not satisfied that the authorities of the respondent State acted within their margin of appreciation when seeking to strike a fair balance between its public interest in ensuring effective immigration control, on the one hand, and the applicants' interests in remaining in Norway in order to pursue their private- and family life, on the other hand.

91. In sum, the Court concludes that the applicants' deportation from Norway would entail a violation of Article 8 of the Convention. [...]

For these reasons, the Court unanimously

1. Declares the application admissible;

2. Holds that there would be a violation of Article 8 of the Convention in the event of the applicants' deportation;

3. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, to each applicant in respect of non-pecuniary damage;

(ii) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, to the applicants jointly in respect of pecuniary damage;

(iii) EUR 20,000 (twenty thousand euros), to the applicants jointly in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 4 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.