Τhe expulsion decision of an alien must take into account the principle of proportionality, including behavioral change, health deterioration, and family ties that have developed. Breach of private and family life from Switzerland

JUDGMENT

Ι.Μ. v. Switzerland 09-04-2019 (no. 23887/16)

see here

SUMMARY

Deportation decision of the applicant’s Swiss authorities, a Kosovo national following his conviction for rape. The applicant, with an 80% disability, currently lives in Switzerland with his adult children, of whom he is fully dependent. The European Court of Human Rights found in particular that the Federal Administrative Court, when it handed down the case in 2015, more than 12 years after the offense committed by the applicant, did not take into account the change in the applicant’s conduct and did not assess the major deterioration of his health situation. Thus, the domestic authorities failed to demonstrate conclusively that his deportation was proportionate to the achievement of legitimate purposes (prevention of upheaval or crime) in a democratic society. Infringement of Article 8 (right to respect for private and family life) of the ECHR if the applicant is expelled to Kosovo.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant is a Kosovar national who was born in 1964 and has been living in Switzerland since
1993.

In 1993 he lodged an asylum application with the Swiss authorities, which rejected it but granted
him provisional admission. In August 1998 I.M.’s former wife, who lived in Kosovo and whom he
divorced in May 1998, arrived in Switzerland with the applicant’s three children. Their asylum
application was accepted. Subsequently, I.M. married a Swiss national and obtained a residence
permit on the basis of that marriage. The couple divorced in 2006.

In 2003 I.M. was convicted on charges of sexual coercion and rape, based on incidents which had
occurred the same year. In 2005 the Court of Appeal, which only considered the charge of rape,
reduced the initial sentence to two years and three months’ imprisonment, and upheld I.M.’s
expulsion from Swiss territory for 12 years, suspended, with a probation period of five years.

In 2006 the Basle-Rural Canton Immigration Office rejected I.M.’s request for an extension of his
residence permit, noting that the fact that he had been sentenced to over two years’ imprisonment
for rape constituted grounds for expelling him from Swiss territory. In 2007 the Basle-Rural Canton
State Council and then the Basle-Rural Cantonal Court dismissed I.M.’s appeals.

In 2010 the State Secretariat for Migration extended the cantonal expulsion order to cover the entire
Swiss territory. In 2013 I.M., whose health had been affected, was awarded a full invalidity pension,
with retroactive effect from 1 October 2012, his rate of disability having been assessed at 80%.
In 2015 the Federal Administrative Court dismissed an appeal lodged by I.M. against the 2010
decision to extend the cantonal expulsion order to the whole country, on the grounds, in particular,
that the prison sentence of two years and three months which had been imposed on him had clearly
exceeded the threshold for admitting a breach of serious endangerment of public order and security.
In 2016 I.M.’s disability pension was suspended. Since then he has been provided for financially by
his children. He reportedly lives with two of his adult children, who do the housework and shopping,
take general care of him, wash and clothe him, and are the primary persons to whom he relates.

THE DECISION OF THE COURT

Article 8 (right to respect for private and family life)

The Court considered that the expulsion order amounted to an interference with I.M.’s right to
respect for his private and family life on the grounds, firstly, of his long period of residence in
Switzerland, and secondly, of his relationship with his children. The Court further noted that the
interference had been based on the relevant provisions of domestic law and had aimed at the
prevention of disorder and crime.

The Court found that the Federal Administrative Court had held that even though the events had
occurred 10 years previously, rape was a serious crime for which even a low risk of reoffending was
unacceptable in the field of aliens’ law. That court had also considered that the application of the
exclusion clause, even having regard to the considerable difficulties which the applicant would have
to overcome on his return to his country of origin, was proportionate. It therefore adjudicated on the seriousness of the criminal offence committed, dealing briefly with the matter of the risk of reoffending and mentioning the difficulties which I.M. would face on returning to Kosovo.

Nevertheless, whereas it was hearing and determining the case more than 12 years after the
offence, the court had completely disregarded the change in I.M.’s behaviour since he had
committed the offence. Nor had it assessed the impact of the major downturn in his health (80 %
disability since 1 October 2012) on the risk of his reoffending. It had also failed to consider several
case-law criteria in assessing the necessity of the expulsion order. In particular, the court had not
taken into consideration the strength of I.M’s social, cultural and family bonds with the host country
(Switzerland) and the country of destination (Kosovo), or the specific circumstances of the case, such
as the medical evidence.

In more specific connection with respect for family life, even though the courts had acknowledged at
least the applicant’s financial dependence on his adult children, they had not analysed in greater
detail the implications of that dependence for the applicant’s enjoyment of his rights under Article 8.
Accordingly, the Court considered that, applying the criteria set out in its case-law, no clear-cut
conclusion could be drawn on whether the applicant’s private and family interests in continuing to
reside in the territory of the respondent State overrode the public interest in expelling him in order
to fulfil its responsibility for preventing public disorder.

If the domestic authorities had carried out a thorough exercise of balancing the competing interests,
taking into account the various criteria established in the Court’s case-law, and if they had set out
relevant and sufficient grounds to justify their decision, the Court might, in line with the subsidiarity
principle, have been induced to conclude that the domestic authorities had neither failed to strike a
fair balance between the interests of the applicant and the respondent State, nor overstepped their
margin of appreciation in matters of immigration.

Consequently, the Court considered that the Federal Administrative Court had conducted a
superficial examination of the proportionality of the expulsion order. In view of the lack of any
genuine balancing of the competing interests, the Court held that the domestic authorities had
failed convincingly to demonstrate that the expulsion order had been proportionate to the
legitimate aims sought to be achieved and therefore necessary in a democratic society. There would
consequently be a violation of Article 8 if I.M. were to be expelled.

Just satisfaction (Article 41)

The Court held that the finding of a violation in itself provided adequate just satisfaction for the nonpecuniary
damage sustained. It also held that Switzerland had to pay I.M. 4,500 euros in respect of
costs and expenses.

Separate opinion

Judge Keller expressed a concurring opinion which is annexed to the judgment(echrcaselaw.com editing).

 


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