Prohibition of entry into Switzerland for 7 years of a convicted of drugs did not violate his family life

JUDGMENT

Κ.Α. v. Switzerland 07.07.2020 (ap. no. 62130/15)

see here

SUMMARY

The case concerned the dismissal of the applicant’s request for an extension of his residence permit
and the order imposing a temporary prohibition on entry to Switzerland, issued against him
following his criminal conviction for a drug-related offence. The applicant was expelled from
Switzerland, where his wife and son, who are both ill, are living.

The Court held that the national authorities, in particular the Federal Supreme Court, had carried out
an adequate and convincing analysis of the relevant facts and considerations, and a thorough
weighing up of the competing interests involved. Thus, despite the strength of the applicant’s
personal ties with Switzerland, the Swiss authorities could legitimately consider, in view of the
applicant’s conduct and the seriousness of the offences in question, that it was necessary, for the
purposes of preventing disorder and crime, not to extend his residence permit and to prohibit him
from entering Swiss territory for a limited duration of seven years.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Mr K.A., is a Kosovar national who was born in 1976 and previously lived in Lützelflüh
(Switzerland).

K.A. lived and received his school education in Kosovo, before moving to Switzerland and applying
for asylum there in September 1996. His asylum claim was rejected on 20 December 1996.
Following a period of illegal residence, on 30 April 1999 K.A. married a Bangladeshi national who
held a settlement permit for Switzerland. Through the marriage, K.A. received a residence permit on
the grounds of family reunion. In 2002 the couple had a son. The child has been in foster care since
2010.

On 19 November 2010 K.A. was convicted of a serious breach of the Federal Dangerous Drugs Act;
he was sentenced to twenty-six months’ imprisonment, of which six months were to be served
immediately and twenty months were suspended for two years. In addition, eighteen sentence
orders were issued against him between 1999 and 2012 and he accrued private debts.

On 6 October 2008 K.A. filed an application for an extension of his residence permit. Finding that the
permit had lapsed, the cantonal authority dealt with the application as a request for a new residence
permit, and on 31 October 2012 refused to issue one. It therefore made an order for K.A.’s removal
from the country.

By a judgment of 22 June 2015, the Federal Supreme Court dismissed an appeal by K.A., having
taken Article 8 of the Convention into consideration. While acknowledging that the applicant was an
important reference person for his wife and son, both of whom were ill, and that his presence with
them was therefore important, it noted that he was not the person who was providing them with
the necessary care. His lengthy prison sentence meant that he had lost his entitlement to a
residence permit.

On 22 June 2015 the cantonal authority informed K.A. that, in view of the decision of 31 October
2012 and the dismissal of his appeals, he had until 22 July 2015 to leave Swiss territory.

On 8 July 2015 K.A. was refused entry to Switzerland for a period of seven years. The decision
referred mainly to the threat that he represented as a result of the offences committed by him.
On 29 July 2015 the applicant lodged an appeal with the Federal Administrative Court against the
prohibition on entering Switzerland.

On 13 October 2015 the Federal Administrative Court refused, in a final decision, to consider the
appeal of 29 July 2015.

THE DECISION OF THE COURT…

Article 8

The Court noted that the applicant had been expelled from Switzerland and had joined his brother in
another, unspecified country. Given that he had been separated from his wife and son, there had
therefore been an interference with his right to respect for his family life.

The Court noted that the expulsion order and prohibition on entering the national territory imposed
on the applicant had been based on the relevant provisions of the Aliens Integration Act. The Court
had no doubt that the interference pursued aims that were fully compatible with the Convention,
namely, in particular, “the prevention of disorder” and “the prevention of crime”.

At the time of the Federal Supreme Court’s judgment of 22 June 2015, the applicant had been living
in Switzerland for almost nineteen years and had been married for sixteen years. However, he had
not succeeded in integrating into professional life. In addition, he had lived with his wife only
intermittently and had not lived with his son since the latter had been placed in a foster family in
2010.

The Court recognised that the applicant was an important reference person for his wife, who
suffered from schizophrenia, and for his son, who suffered from autistic spectrum disorders, and
that his presence near them was important. Nonetheless, he did not participate in their care on a
daily basis, and contact with them had undoubtedly become less frequent during the period when
he was serving his prison sentence. However, the applicant had the possibility of maintaining a
relationship with his son via modern means of communication, or through his visits to Switzerland.
The Court considered that the national authorities, in particular the Federal Supreme Court, had
carried out an adequate and convincing analysis of the relevant facts and considerations, and a
thorough weighing up of the competing interests involved. Thus, despite the strength of the
applicant’s personal ties with Switzerland, the Swiss authorities could legitimately consider, in view
of the applicant’s conduct and the seriousness of the offences in question, that it was necessary, for
the purposes of preventing disorder and crime, not to extend his residence permit and to prohibit
him from entering Swiss territory for a limited duration of seven years.

That being so, the Court was able to conclude that the contested measures had been proportionate
to the aims pursued.


ECHRCaseLaw

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