Die Verletzung des Schutzes des Familienlebens nach Art. 8 EMRK durch eine Ausweisung oder Ablehnung der Verlängerung der Aufenthaltserlaubnis kann nicht durch die Erlaubnis für gelegentliche Besuchsaufenthalte bei der Familie geheilt werden.
Die Verletzung des Schutzes des Familienlebens nach Art. 8 EMRK durch eine Ausweisung oder Ablehnung der Verlängerung der Aufenthaltserlaubnis kann nicht durch die Erlaubnis für gelegentliche Besuchsaufenthalte bei der Familie geheilt werden.
(Leitsatz der Redaktion)
40. The Court notes that it was common ground between the parties that the refusal to prolong the first applicant‘s residence permit constituted an interference with the applicants‘ right to respect for their family life, as guaranteed by Article 8 § 1 of the Convention.
41. It remains to be determined 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 aim pursued (see Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 91, § 52; Boultif v. Switzerland, cited above, p. 130, § 46; Jakupovic v. Austria, no. 36757/97, § 25, 6 February 2003). Therefore, the Court‘s task consists in ascertaining whether in the circumstances of the present case the refusal struck a fair balance between the relevant interests, namely the applicants‘ right to respect for their family life, on the one hand, and the interests of public safety and the prevention of disorder and crime, on the other.
42. Where continued residence is refused to an alien who settled in the host country when already an adult, the Court applies the following guiding principles in its examination of the question whether that refusal was necessary in a democratic society (see Boultif, cited above):
- 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 applicant‘s country of origin.
43. The Court will first consider the nature and seriousness of the offence committed by the first applicant in the present case. It observes in this context that in 1993 he was convicted of a drug offence, namely the possession of large quantities of heroin. As the Court has held on previous occasions, it SEZEN v. THE NETHERLANDS JUDGMENT 11 understands – in view of the devastating effects drugs have on people‘s lives – why the authorities show great firmness to those who actively contribute to the spread of this scourge (see Baghli v. France, no. 34374/94, § 48, ECHR 1999-VIII).
44. At the time the first applicant was arrested, i.e. on 31 July 1992, he had been residing lawfully in the Netherlands for less than one and a half years, having been granted a residence permit in February 1991. Applying the "sliding scale" principle, the
authorities of the respondent State attached weight to this undeniably short duration of the first applicant‘s lawful stay in the Netherlands before he committed the offence. It is nevertheless to be noted that, following his conviction on 20 January 1993, it was not until morethan four years later, namely on 5 June 1997, that the decision was taken to refuse the first applicant continued residence. Following his early release from prison in April 1995, the first applicant had thus been allowed to build up even closer ties with the Netherlands for a further two years. In addition, it appears that the first applicant has not re-offended and that he has been gainfully employed ever since his release from prison.
45. As to the first applicant‘s connections with his country of origin, the Court considers that his situation is not comparable to that of a secondgeneration immigrant, given that he arrived in the Netherlands at the age of twenty-three.
46. The Court notes with some concern that none of the domestic authorities involved in the decision-making process appear to have paid any attention to the possible effects which the refusal of continued residence would have on the first applicant‘s family life (see Yıldız v. Austria, no. 295/97, § 43, 31 October 2002).
47. Unlike the first applicant, his wife – the second applicant – may be considered a second-generation immigrant, having moved to the Netherlands at the age of seven and having lawfully resided there ever since. Furthermore, the couple‘s two children were born in the Netherlands: Adem in 1990 and Mahsun in 1996.
50. In conclusion, the Court is of the opinion that, in the particular circumstances of the present case, the respondent State failed to strike a fair balance between the applicants‘ interests on the one hand and its own interest in preventing disorder or crime on the other.
48. The principal element which strikes the Court in the present case, however, is the fact that the applicants‘ marriage was deemed to have permanently broken down when the couple had merely ceased cohabiting for some six months in 1995/1996 and despite them making it clear to the authorities of the respondent State that cohabitation had been resumed and that there was no question of their marriage having broken down. Dutch law did not permit the first applicant‘s residence permit to be revoked or an exclusion order to be imposed at the time of his conviction, since he had held a strong residence status at that time (see Yılmaz v. Germany, no. 52853/99, § 48, 17 April 2003). Yet by ruling – four years after that conviction (paragraph 44 above) and notwithstanding the fact that a child had been conceived during the time the spouses were not living together – that the marriage had permanently broken down, the authorities were able to conclude that the first applicant had lost his indefinite right to remain and, subsequently, to refuse him continued residence on the basis of the criminal conviction. By that time the first applicant had served his sentence and, as illustrated by the fact that he obtained gainful employment and that a second child was born to him and his wife, had begun rebuilding his life.
49. It is true that, in theory at least, the first applicant is entitled to make occasional visits to the Netherlands, due to the fact that the exclusion order that was initially imposed on him was ultimately withdrawn without having been enforced (paragraph 20 above). However, in this context the Court notes that the present case does not concern a divorced father with an access arrangement, but a functioning family unit where the parents and children are living together. The Court has previously held that domestic measures which prevent family members from living together constitute an interference with the right protected by Article 8 of the Convention and that to split up a family is an interference of a very serious order (see Mehemi v. France (no. 2), no. 53470/99, § 45, ECHR 2003-IV).
50. In conclusion, the Court is of the opinion that, in the particular circumstances of the present case, the respondent State failed to strike a fair balance between the applicants‘ interests on the one hand and its own interest in preventing disorder or crime on the other.