Deportation of a foreigner for committing serious crimes against sexual freedom. Non-violation of the right to respect for family life
JUDGMENT
J.Α. v. Switzerland 22.12.2020 (app. no. 6325/15)
SUMMARY
Deportation of a foreigner who committed serious crimes. Family ties in the host country. Proportionality of intervention.
The action concerned the deportation of a Spanish national from Switzerland to Spain. The applicant had resided legally in Switzerland for a number of years, and had raised a family there. He was deported because he was considered by the domestic authorities to be dangerous to public order and security due to committing serious crimes against sexual freedom, such as rape and sexual acts with his partner’s minor daughter.
The Court reiterated the criteria set out in the Üner case that should be applied to determine whether intervention, in the form of deportation, was necessary in a democratic society and the commission of the offenses and the existence of strong family ties in the host country.
The ECtHR found that the applicant had established family ties in Switzerland, but that his adult son was now living alone and that his wife could communicate with him by telecommunications and that he also had ties to Spain, where he was deported. Since the applicant had committed serious offenses, he considered that the domestic authorities, in his expulsion, had not exceeded the margin of appreciation granted by the Convention. It did not find a breach of respect for his family life (Article 8 of the ECHR).
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Mr Z., is a Spanish national who was born in 1968 and lives in Gandia (Spain).
The case concerned the withdrawal of the applicant’s residence permit following criminal
convictions, despite his having been born and lived his entire live in Switzerland.
The applicant had a residence permit since birth. He had a son in 1991 and in 2003 he married a
Belarusian national.
In 2009 the applicant was convicted of multiple sexual offences, involving his extramarital sexual
partner’s underage daughter. In January 2014 the Migration Office revoked the applicant’s residence
permit owing to his “disregard[ing] fundamental norms and massively violat[ing] valuable legal
interests” and his having reoffended. It noted his connections to Spain and fluency in Spanish. It
particularly cited the general interest in maintaining public safety. That decision and grounds were
upheld by the competent administrative court. It pointed out that his wife was free not to join him in
Spain.
In 2015 the Federal Supreme Court dismissed an appeal by the applicant. It held that the lower court
had correctly balanced the applicant’s interests with the public interest, and stated that the right to
respect for private life was not absolute.
On 28 February, the applicant left Switzerland for Spain. His wife remained.
Before the Court, the applicant complained that the revocation of his residence permit had infringed
his right to respect for private and family life under Article 8.
THE DECISION OF THE COURT…
- General principles
The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under Article 8 § 1, be in accordance with the law and necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursueς.
In the case of Üner (cited above, §§ 57-58), the Court summarised the relevant criteria to be applied in determining whether interference, in the form of expulsion, is necessary in a democratic society:
- 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;
- 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.
In recent cases concerning the expulsion of settled migrants, the Court declined to substitute its conclusions for those of the domestic courts, which had thoroughly assessed the applicants’ personal circumstances, carefully balanced the competing interests and taken into account the criteria set out in its case law, and reached conclusions which were “neither arbitrary nor manifestly unreasonable”.
- of the above principles in the instant case
In the examination of the present case, the Court keeps in mind that the expulsion of long-term immigrants should be an exception.
It has no difficulty in accepting that the impugned measures constituted an interference with the applicant’s right to respect for his family life and right to respect for his private life, that the interference was in accordance with the law and that it pursued the legitimate aims of the interest of public safety and the prevention of disorder or crime.
As far as the nature and seriousness of the offences committed by the applicant are concerned, the Court observes that the applicant was, in 2009, convicted of multiple counts of sexual activity with a minor, multiple counts of attempted sexual activity with a minor, multiple counts of sexual assault, rape and multiple counts of pornography, committed between March and December 2006. He was sentenced to thirty months’ imprisonment, twenty-four of which were suspended on probation.
In sum, the Court considers that the applicant committed very serious offences against important legal interests of the victim.
With regard to the time elapsed since the offence was committed and the applicant’s conduct during that period, the Court notes that he committed the above-mentioned offences in 2006 and was convicted of them in 2009. It also notes that only nine months after the end of his probation the applicant set up cameras in the apartment of his former extra-marital partner and had her monitored by a private detective. The Court shares the argument of the Federal Supreme Court that such a risk need not be accepted for legal interests as important as the sexual integrity of minors.
As regards the applicant’s family situation, he has been married to his wife since 2003 and it has not been explicitly disputed by the respondent Government that real and effective family ties existed between the applicant and his wife. The marriage remains childless.
The Court shares the domestic courts’ view that the expulsion of the applicant would certainly affect her. It follows from the information provided by the applicant by letter in April 2020 , that she still lives in Switzerland. The Court considers that she can maintain contact with the applicant through means of telecommunication and visits, as considered by the domestic courts.
The applicant has an adult son from a previous relationship. Despite his claim that he has a very close relationship with his son, the latter has been living with his girlfriend since 2014. The Court endorses the domestic courts’ conclusion that the applicant could not demonstrate, and it is also not apparent from the files, that there exist additional elements of dependency other than normal emotional ties between him and his adult son which would make it necessary to consider this relationship with regard to the right to respect for “family life” within the meaning of Article 8 of the Convention.
As to the strength of the applicant’s social, cultural and family ties with the host country, the Court notes that the applicant lived his entire life in Switzerland. He went to school and has worked in different jobs there. His friends and some of his siblings live in Switzerland. That country thus became the centre of his life. Moreover, he speaks German. In these circumstances, the Court does not doubt that the applicant had strong ties with Switzerland. The applicant’s social and cultural integration is not in dispute.
As to the applicant’s ties with the country of destination, the Court notes that he is a Spanish citizen. It can be seen from the parties’ submissions that he has maintained contact with Spain and speaks Spanish, even though perhaps only imperfectly. Moreover, one of his brothers still lives in Spain. As a result, the Court finds that the applicant can rely on certain ties with Spain.
The foregoing considerations enable the Court to conclude that the domestic authorities reviewed all the above-mentioned factors in detail and drew conclusions that appear neither arbitrary nor manifestly unreasonable. It cannot find that the respondent State attributed excessive weight to its own interests in deciding to revoke the applicant’s permanent residence permit and order his expulsion to Spain. The Court therefore finds that the respondent State has not overstepped the margin of appreciation afforded to it in the present case.
It follows that there has been no violation of Article 8 of the Convention.
