Deportation and ban on re-entry for two years of a mother of 4 children for misleading the authorities with false information in order to obtain a residence permit. Non-infringement of family life
JUDGMENT
Alleleh and others v. Norway 23.06.2022 ( app. no. 569/2020)
SUMMARY
Deportation. Immigration control. Proportionality of provisions. Margin of appreciation of the relevant legislation.
The applicant, a Djibouti national, had been living in Norway since 2001, where she married a Norwegian national and they had 4 children. Her stay in the country was based on repeatedly providing false information over a long period of time and as a result she never had a legal residence permit. The competent authorities issued a decision to deport and ban entry into the country for two years. Her appeal for the annulment of the deportation decision was rejected by an irrevocable decision. He appealed to the ECtHR for violation of the right to family life.
The Court reiterated that in cases where a family member is ordered deported, the circumstances relevant to the proportionality analysis generally include the extent to which family life will be substantially disrupted, and whether there are public policy reasons that outweigh the exclusion. When children are involved, their best interests must be taken into account.
In the present case, the ECtHR found that the sanction imposed on the first applicant affected her children equally, if not more, but emphasized that the re-entry ban imposed on the applicant had been limited to two years and the corresponding case law of the ECtHR has found a violation of family life when the sanction is for five years.
The ECtHR held that the domestic authorities were faced with a balancing of interests that had to be done in a situation where particularly important interests in immigration control supported the first applicant’s deportation, despite the fact that at the same time a deportation would create significant hardship for her family members. It also considered that the domestic authorities tried to take care of the interests of the children. Therefore, the Court did not find that the authorities of the respondent State exceeded the margin of appreciation when, after carefully considering the facts and adequately balancing the competing interests. Consequently, there was no violation of Article 8 of the ECHR.
PROVISION
Article 8
PRINCIPAL FACTS
The applicants, Neima Aden Alleleh, a Djiboutian national, Rolf Erik Kristensen, a Norwegian
national, and their four children who are Norwegian citizens were born in 1983, 1967, 2005, 2009
and 2013 respectively. They live in Oslo.
The case concerns the expulsion of the mother who, upon arrival in Norway in 2001, had provided
false information to the immigration authorities about her country of origin and had applied for
asylum on false grounds, and the alleged consequences of the expulsion on their family life.
Relying on Article 8 (right to respect for private and family life) of the European Convention, the
applicants complain that the expulsion of the first applicant with a two-year ban on re-entry entailed
a breach of the family members’ right to respect for their family life.
THE DECISION OF THE COURT…
The Court first notes that the decision to expel the first applicant and issue a two-year ban on re-entry was first taken by the Directorate of Immigration, and thereafter examined on appeal by the Immigration Appeals Board. Subsequently, a judicial review was carried out by three levels of court. During those proceedings, a psychologist was appointed to protect the best interests of the children, several witnesses were heard, and other pieces of evidence examined. There is nothing to suggest that the expulsion case of the first applicant was not dealt with thoroughly and swiftly, enabling the decision makers to take into account all relevant circumstances, including those directly related to the situation of the four children.
As one additional initial observation the Court observes that the Supreme Court’s conclusion that there were no insurmountable obstacles to the family moving as a whole to Djibouti – which relates to an aspect that under the Court’s case-law is highly relevant to the proportionality assessment under Article 8 § 2 of the Convention – did not touch on the applicants’ argument before the Court concerning the risk of genital mutilation. Based on the materials provided to the Court, that appears to have been connected to how the applicants had structured their pleadings before the Supreme Court. Given the applicants’ own limited focus on and their apparent lack of attempts to substantiate that argument before the domestic authorities, and observing that the Supreme Court in any event, in its assessment of the proportionality of the expulsion, included the assumption that the family would decide that the father and the children would remain in Norway during the ban on re-entry imposed on the first applicant, the Court does not in the circumstances of the case find it appropriate to analyse the situation in Djibouti on the basis of new material or replace the assessment of the national courts by its own on that point. It is sufficient to observe that the applicants have not shown convincingly that the Supreme Court’s finding that the second to sixth applicants could also in principle go to Djibouti – either to stay or at least to visit the first applicant – was arbitrary or otherwise manifestly deficient.
The Court moreover notes the Supreme Court’s meticulous examination of the Court’s case-law in order to infer relevant legal standards under Article 8 of the Convention and to apply them in a Convention–compliant manner when deciding the first applicant’s expulsion case. Such an approach is crucial for the distribution of responsibility between the Court and the domestic courts, in order to ensure that the proper standards have been applied at domestic level.
The Court also attaches importance to the Supreme Court’s detailed reasoning with regard to its explanation of the weighty immigration policy arguments in favour of the expulsion of the first applicant. The Supreme Court made particular reference to the seriousness of her offences and that a sanction – as had also been emphasised by the legislature in the preparatory work to the Immigration Act – in the form of expulsion was considered necessary in order to uphold respect for the immigration regulations and deter from future contraventions, that is to say for reasons of general deterrence. Indeed, as already found by the Court in a number of cases, a scheme of implementation of national immigration law which is based on administrative sanctions in the form of expulsion and a ban on re-entry does not as such raise an issue of failure to comply with Article 8 of the Convention. Thus, the Court has in principle no objections to the Supreme Court’s approach in this respect, bearing in mind, at the same time, that any such scheme must be construed and applied in a manner that is compatible with the Convention rights of all involved.
The Court furthermore observes that the Oslo City Court and the Borgarting High Court each examined the facts of the case with regard to what an expulsion would entail for each of the applicants, including the children. The Borgarting High Court’s findings as to the facts of the case, the children’s situation included, formed the basis for the Supreme Court’s assessment of the case within the scope of the appeal, the appeal having been limited to the High Court’s application of the law. In this respect the Supreme Court considered that the proportionality analysis, unlike what had been done by the High Court had to be conducted in the light of the Court’s case-law according to which an expulsion of a person whose grounds for residence were precarious at the outset would only be disproportionate in “exceptional” circumstances . Moreover, the Supreme Court concluded that the facts of the case as established by the Borgarting High Court did not support the finding that such “exceptional circumstances” existed. In this connection the Supreme Court emphasised that there was nothing in the lower instances’ findings of fact that stood out from what had generally to be assumed to follow from expulsion of one of the parents for a relatively short period .
Regarding the Supreme Court’s legal starting points under Article 8 of the Convention, the Court notes that the first applicant was not a “settled migrant” in Norway in so far as her stay there was based on repeatedly giving incorrect information over a long period and therefore had never had a valid legal basis. It was for that reason the Supreme Court proceeded on the basis that the expulsion was valid unless “exceptional circumstances” could be identified. Although the Court does not disagree with the Supreme Court regarding this being the starting point, the Court also notes the very particular aspect of the instant case that the sanction imposed on the first applicant impacted as much, if not more, on her family members, notably her children, all being Norwegian nationals who had been born and lived all their lives in Norway. Even if the other family members would follow the first applicant to Djibouti during the period when the ban on re-entry would be in force in order to preserve “family life”, they would have to experience a considerable unwanted change in their “private life” in moving to a country with which they had no connection, including as concerned language. This contrasted with the first applicant’s own situation, coming from Djibouti, speaking the language, having family there and even having visited there after she had arrived in Norway The expulsion imposed on the first applicant to sanction her behaviour could thus, somewhat paradoxically, put an equally heavy if not heavier strain on the other family members. The Court observes in this context – as did the Supreme Court – that the Norwegian Parliament has requested that the Government consider an amendment of the Immigration Act to “make it possible for the immigration administration to supplement the use of expulsion and prohibition of entry with a broader set of sanctions where warranted by special circumstances such as the child’s best interests”.
Furthermore, the Court understands the Supreme Court’s role in being limited to correcting what had been an erroneous understanding of the law by the Borgarting High Court. Nonetheless, even an examination of whether any “exceptional circumstances” existed also required a concrete and broad examination of the whole case and how the whole family would be affected by the expulsion of one of them. It might even be particularly important that the Supreme Court demonstrate that concrete assessment in a situation where the lower court had, regardless of its misunderstanding of the law, given a detailed explanation of why it, based on evidence that had been presented to it directly during its hearing, considered the expulsion to contradict the children’s best interests, which in its assessment made the expulsion disproportionate vis-à-vis them .
Turning, then, to the concrete proportionality assessment, the Court notes that the facts with regard to what impact an expulsion would have on the children had been established by way of a thorough process where an expert had been engaged and the children’s views obtained in so far as possible based on their age and maturity. The factual findings on that point had also been set out in detail by the Borgarting High Court in its judgment, providing a basis for the Supreme Court in its application of the law.
Against that background, the Court does not consider that it has a basis for concluding that the Supreme Court erred in its assessment that there were no concrete facts in the case before it that gave grounds for characterising the children’s situation as different from what would essentially always follow with the expulsion of a parent. The Court therefore understands the Supreme Court’s reluctance to qualify the circumstances as “exceptional” within the meaning of the Court’s case-law. The Court notes that the case differed from those of Nunez and Kaplan and Others, where the Court found violations of Article 8 of the Convention. It refers to Antwi and Others, where a five-year re-entry ban was accepted by the Court with reference to the fact that the child in question, also a Norwegian national who since birth had spent her entire life in Norway, had not been made vulnerable by previous disruption and that the duration of the immigration authorities’ processing of the matter had not been so long as to give reasons to question whether the impugned measure fulfilled the requirements of swiftness and efficiency, in contrast to what had been the situation in the case of Nunez. The applicant children in the instant case had not either been exposed to the same degree of disruption and stress as in the case of Nunez. Neither can the authorities be blamed for not having dealt with the expulsion case in a timely manner. The facts of the current case also clearly differ from those in the case of Butt .
Moreover, the Court observes that the Supreme Court stressed various aspects that mitigated the effects of the expulsion on the children. First of all, the Supreme Court emphasised that it was only out of consideration for the children that the ban on re-entry imposed on the first applicant had been limited to two years in the first place . The duration of the exclusion order is an important element in the proportionality assessment , and the Court must take into account that it did not find re-entry bans of five years imposed on parents disproportionate in cases such as Antwi and Others and Darren Omoregie and Others.
Furthermore, the Supreme Court emphasised the first applicant’s possibility to apply to have the ban from re-entry revised. Such a revision of the re-entry ban according to the second paragraph of section 71 of the Immigration Act would enable the domestic authorities to take into account any subsequent negative development, such as the second applicant not being able to take adequately care of the four children, or any unforeseen change related to the children’s health or overall situation. The Supreme Court also emphasised the first applicant’s possibility to apply for access to Norway for brief visits during the two-year ban from re-entry . Lastly, the Court finds reasons to stress not only the importance of the fact that the ban from re-entry had been limited to two years , but that it proceeds on the basis that she will be allowed to resume her family life in Norway when the two years have passed.
Considering all of the above, the Court accepts that the present case disclosed no exceptional circumstances as such requiring the respondent State to withdraw the expulsion order so as to enable the applicants to maintain and continue to develop family life in Norway. Moreover, the Court accepts that the domestic authorities were faced with a balancing of interests that had to be done in a situation where particularly weighty interests in immigration control supported the first applicant’s expulsion while at the same time an expulsion would impose considerable difficulties on the other applicants. The Court also accepts that the domestic authorities, including the Supreme Court, sought to attend to the children’s interests in so far they could be reconciled with the public interest reasons in sanctioning the first applicant’s behaviour.
Therefore, as to the final conclusion that the expulsion was not disproportionate because it did not exceed the standards indicated by the Court in its case-law relevant to the case, the Court does not find that the authorities of the respondent State transgressed their margin of appreciation when, having carefully examined the facts and adequately balanced the interests in issue , they decided to expel the first applicant and to prohibit her re-entry for two years. Neither are there any other reasons for the Court to substitute its own assessment for that of the competent national authorities, bearing in mind in particular the domestic courts’ careful examination.
On the basis of the above, the Court concludes that there has been no violation of Article 8 of the Convention.
