Revocation of a long-term resident’s residence permit and imposition of a 10-year entry ban due to delinquent behavior, despite his progress in detention. Violation of privacy
JUDGMENT
AZZAQUI v. the Netherland 30.05.2023 (app. no. 8757/20)
SUMMARY
The applicant, a Moroccan national, entered the Netherlands in 1982 at the age of 10 and was granted a permanent residence permit. Between 1987 and 1996 he was convicted of several criminal offenses and served several prison terms. In 1996 he was convicted of rape. The court found that at the time of the offense he suffered from a personality disorder, antisocial characteristics and episodic psychotic experiences that reduced his criminal responsibility. It decided to incarcerate him in a detention clinic. The criminal courts repeatedly extended this decision. In 2016, on the recommendation of the treatment unit’s experts, the decision was extended for another year and a conditional release from incarceration in the clinic was granted, with continued treatment in an assisted living unit.
The appellant violated the terms of his parole by smoking marijuana and drinking alcohol. In 2018, his residence permit was revoked and he was banned from entering for ten years. His appeals were dismissed. In 2019, the applicant was re-incarcerated in a detention clinic that was still in place at the time of the ECtHR’s decision.
The fact that more than 20 years had passed since the last offense did not mean, as the applicant argued, that the authorities had waived their right to revoke his residence permit. However, in reaching their conclusion about the existence of a threat to public order in the context of the withdrawal procedure, the authorities had not taken sufficient account of the applicant’s personal circumstances, and in particular the findings of the criminal courts in their decisions on the extension of the decision to incarcerate him, which had been supported by medical evidence. The applicant had demonstrated good behavior during his treatment and had otherwise made positive progress in the years since his most recent offence, which had led the criminal court in 2016 to follow expert advice. The applicant’s mental deterioration and relapse into substance use twenty years after starting treatment appears to have been caused by the Deputy Minister’s intention to revoke his residence permit and the subsequent decisions in the revocation process. Until then his treatment was aimed at reintegration into Dutch society and therefore no steps had been taken to prepare him for his return to Morocco. Furthermore, it appeared from the judgments of the criminal court that the “status quo” situation in which the applicant had fallen had an impact on his medical treatment, his reintegration and the possibility of terminating the judgment. Under these circumstances, the authorities should have coordinated the various procedures concerning his right to respect for his private life and assessed in a timely and thorough manner the practical feasibility of his deportation to Morocco, in order to properly respect the interests guaranteed by Article 8 .
Finally, the Deputy Minister had merely found that the applicant was an adult male who could be expected to be able to take care of himself after assisted repatriation, that he was or could become familiar with the local language and that he had family in Morocco with which he maintained contact – findings that had been validated by the administrative court. It did not appear that the domestic authorities had considered the medical aspects, including the availability and accessibility in Morocco of medicines and treatment to meet the applicant’s needs. Consequently, during the recall process, the domestic authorities had not taken sufficient account of the difficulties the applicant might face in Morocco due to his mental vulnerability.
The ECtHR found a violation of Article 8.
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Karim Azzaqui, is a Moroccan national who was born in 1972 and entered the
Netherlands in 1982 to live with his father. In 1991 he obtained a permanent residence permit
(vergunning tot vestiging).
From 1987 Mr Azzaqui was convicted of multiple crimes, ending with rape in 1996. For the latter
offence, the criminal court found that he had diminished criminal culpability because of a
personality disorder. He has spent most of the following years in a custodial clinic
(terbeschikkingstelling met bevel tot verpleging van overheidswege).
In 2018 the Deputy Minister of Justice and Security decided to revoke Mr Azzaqui’s residence permit
and impose on him a ten-year entry ban to the Netherlands on the grounds that he was a threat to
public order. In his decision he acknowledged that Mr Azzaqui had been living in and had built up
social ties in the Netherlands for a very long time, but considered that that was outweighed by the
seriousness of his crimes, the extensions to the court-ordered confinement in a custodial clinic and
the risk of his reoffending. The Minister also found that he was an adult male who could fend for
himself if repatriated to Morocco and that he had family there.
This decision was subsequently assessed and upheld by the national courts.
Pending these revocation proceedings Mr Azzaqui, who had been conditionally released in 2016 into
an assisted living facility for consistent good behaviour, had had a relapse into substance abuse.
According to the probation services this was because he had been severely disturbed by the Minister announcing his intention to revoke his residence permit. The courts therefore ordered his resumed
confinement in a custodial clinic from March 2019.
THE DECISION OF THE COURT…
The Court reiterated that a State was entitled to control the entry of aliens into its territory and their
residence there. Furthermore, the European Convention did not guarantee the right of an alien to
enter or to reside in a particular country.
There was no dispute in the applicant’s case that the revocation of his residence permit and the
entry ban had interfered with his right to respect for private life, that those measures had been
taken in accordance with the law and that they aimed to ensure public safety and prevent disorder
or crime.
However, for a settled migrant who had lawfully spent all or the major part of his or her childhood
and youth in the host country, such as in the applicant’s case, very serious reasons, weighing up the
various interests at stake, were required to justify expulsion.
It noted that the applicant’s convictions, including crimes of a violent and of a sexual nature, could
constitute such a “very serious reason”, assuming that all other relevant criteria had adequately
been taken into account by the national authorities in their overall balancing-test. However, when
making that assessment, neither the Deputy Minister nor the courts had sufficiently taken into
account the fact that the applicant had been suffering from a serious mental illness, which had
reduced his criminal culpability.
Nor had the decision-making process apparently considered whether medication and treatment was
available in Morocco for the applicant’s needs or borne in mind the difficulties he might face there
due to his mental vulnerability.
Indeed, the revocation proceedings had overall paid little attention to the applicant’s personal
circumstances. They had not sufficiently taken into account the progress he had made since his last
offence and the fact that – up until the point when the Deputy Minister had announced his intention
to revoke his residence permit – his treatment had been aimed at reintegration into Dutch society.
Despite the State’s wide discretion (“margin of appreciation”) to decide on such matters, the Court
considered that, in the particular circumstances of the case, the Dutch authorities had failed to duly
take into account and to properly balance the interests at stake. In the light of this, the Court found
a procedural violation of Article 8.
Just satisfaction (Article 41)
The Court held, by six votes to one, that the finding of a violation constituted in itself sufficient just
satisfaction for any non-pecuniary damage sustained.
Separate opinion
Judge Serghides expressed a partly dissenting opinion which is annexed to the judgment.
