EGMR

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54. The Court observes that the domestic proceedings leading up to the present application exclusively concerned the issue of whether the applicant was entitled to a residence permit despite the final expulsion order against him (see paragraphs 19 to 27 above). In other words, the issue at stake is not whether the expulsion order, which became final in 2003, complied with the criteria established by the Court’s case-law in this regard (see Üner v. the Netherlands [GC], no. 46410/99, §§ 57-58, ECHR 2006-XII), but rather whether or not the subsequent refusal of a residence permit was in breach of Article 8 of the Convention, that is, whether the authorities were under a positive obligation to grant the applicant a residence permit (compare Jeunesse v. the Netherlands [GC], no. 12738/10, § 105, 3 October 2014; Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 38, ECHR 2006-I).

55. It is not in dispute between the parties that the applicant is the biological father of a daughter born in October 2000, that they lived together for nine months until he was arrested in July 2001, that the applicant always had and continued to have joint custody, that she had regularly visited him in prison since January 2008, that they had spent every other weekend together since his release in July 2009, and that she explicitly wished to continue the regular contact with him, stating before the domestic authorities that he had become an important person for her. Against this background, the Court is satisfied that the relationship between the applicant and his daughter, at the time the decision denying him a residence permit became final on 16 February 2012 (see paragraph 26 above and Trabelsi v. Germany, no. 41548/06, § 47, 13 October 2011), constituted “family life” within the meaning of Article 8 § 1 of the Convention.

56. The Court reiterates that Article 8 of the Convention neither guarantees the right of a foreign national to enter or to reside in a particular country nor, as its corollary, entails a general obligation for a State to authorise the residence of a foreign national on its territory (see Jeunesse, cited above, § 100) or issue a particular type of residence permit (see Dremlyuga v. Latvia (dec.), no. 66729/01, 29 April 2003). Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations will vary according to the particular circumstances of the persons involved and the general interest (Jeunesse, cited above, § 107). The applicable principles are similar in respect of positive and negative obligations under this provision. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (ibid., § 106).

57. Factors to be taken into account in this context are the extent to which family life would effectively be 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 the alien concerned and whether there are factors of immigration control or considerations of public order weighing in favour of exclusion (ibid., § 107). Another important consideration is whether family life was created at a time when the persons involved were aware, due to the immigration status of one of them, that the persistence of that family life within the host State would from the outset be precarious (ibid., § 108). The Court has further held that where children are involved, their best interests must be taken into account. Whilst alone they cannot be decisive, such interests certainly must be accorded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (ibid., § 109).

58. The Court observes that there is a final expulsion order of 21 March 2003 in relation to the applicant, based on the drug-related offences he committed, which continues to be enforceable (see paragraphs 16 and 40 above), that the authorities have informed him in two sets of proceedings of their intention to deport him to Nigeria (see paragraphs 16, 18 and 36 above), and that his deportation has been impossible for reasons of fact because he did not have a valid passport (see paragraphs 13, 28, 29, 37 and 38 above). Domestic law furthermore provides that exceptional leave to remain, which the applicant has been granted since 2009 (see paragraph 13 above), shall be revoked as soon as his deportation is no longer impossible, notably because the required papers have been issued (see paragraph 40 above). That has, however, not yet been done in the present case. Neither has it been claimed by the applicant that his exceptional leave to remain had been terminated by lapse of time and not prolonged.

59. The applicant had, by the time of the Federal Administrative Court’s decision in 2012, lived in Germany for more than a decade. However, he had only held a residence permit for one year, in 2000-2001, and had spent eight years in prison. His immigration status at the time he created his family life had been such that its persistence within the host State was, from the outset, precarious and he had been granted exceptional leave to remain since his release from prison in 2009, his deportation being temporarily suspended because he had failed to obtain a valid passport, in contravention of his obligations under the Residence Act. While he successfully completed professional re-training in 2012, he has not been allowed to engage in gainful employment since his release from prison. Moreover, the drug-related offences committed by the applicant prior to the birth of his daughter were very serious and he had committed further offences, albeit of a less serious nature, since his release from prison, weighing in favour of his exclusion from Germany (compare and contrast Jeunesse, cited above, § 116; Rodrigues da Silva and Hoogkamer, cited above, § 43).

60. The applicant’s daughter is a German national and was eleven and a half years old at the time of the Federal Administrative Court’s decision. She lives with her mother, likewise a German national, who also has custody, and could not be expected to move to Nigeria to enjoy family life with the applicant there. However, contact could be maintained by telephone and different forms of electronic communication and the applicant, if removed to Nigeria, could, starting a year after his departure, enter Germany twice a year for a total period of four weeks in order to see his daughter. Also, the applicant’s exclusion from Germany was not permanent, but limited to five years (see paragraph 20 above).

61. In relation to the applicant’s submission that his daughter had already been deprived of a “lived” relationship with him during his imprisonment and would be deprived of it for the remainder of her childhood if he were not allowed to remain in Germany, the Court observes, first, that the applicant’s own actions had previously caused his daughter to be deprived of such a relationship. Second, the Court notes that the authorities have not deported the applicant while the proceedings have been pending before it. In the light of the length of these proceedings, if the applicant were eventually deported to Nigeria, there would have been a significant lapse of time between the final decision denying him a residence permit on 16 February 2012 and the actual deportation, allowing the Court to have regard to the developments during that time (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, §§ 92-95, ECHR 2008). By the time the present judgment becomes final, the applicant’s daughter will have almost reached the age of eighteen. The argument that she would be deprived of a “lived” relationship with the applicant for the remainder of her childhood if he were not allowed to remain in Germany loses considerable weight when it is considered that the failure to execute the deportation order for the period of time outlined above has ensured that the applicant has been able to enjoy family life with his daughter for most of her life, barring the period spent in prison.

62. The Court has certain reservations as to the Government’s submission that the domestic courts were not required to explicitly engage in an assessment of the applicant’s relationship with his daughter and of the child’s best interests because the legislator had already balanced the competing interests and attached significant weight to the duty of persons to have a valid passport in order for a residence permit to be granted (see paragraph 53 above). It notes that the authorities had last engaged in a balancing exercise regarding the relationship between the applicant and his daughter and her best interests when they issued the expulsion order against the applicant in 2003 (see paragraphs 16 and 18 above). The relationship between the applicant and his daughter cannot reasonably be considered to have been the same in 2012 as it had been in 2003. Nonetheless, again having regard to developments that occurred after the final decision on a residence permit was taken, the Court observes that the immigration authorities sought to reach an agreement with the applicant on 1 August 2012 which would have allowed him to return to Germany two and a half years after his proposed expulsion (see paragraphs 28 and 29 above). This agreement can be understood as a subsequent balancing exercise that had regard to the individual circumstances of the case.

63. Furthermore, the Court notes that the applicant would, according to domestic law, be able to challenge the revocation of his exceptional leave to remain – or the refusal to grant him such leave again once it expired by lapse of time – before the administrative courts (see paragraph 40 above). He would not, in such circumstances, be prevented from arguing that his deportation has now become impossible for reasons of law, notably his rights under Article 8 of the Convention, and the domestic authorities would be able to examine such submissions (see paragraphs 40 and 42 above).

64. The foregoing considerations are sufficient to enable the Court, looking at the proceedings as a whole, including the agreement of 1 August 2012, to conclude that the domestic authorities have not attributed excessive weight to the general interest in controlling immigration and have not overstepped the margin of appreciation afforded to them in the circumstances of the present case.

65. There has accordingly been no violation of Article 8 of the Convention. [...]