EHRM, 18-10-2006, nr. 46410/99

As he had done before the Chamber, the applicant argued that the respondent Government had failed to strike a fair balance in the present case. When he had committed the offence which ultimately led to the impugned measures, he had still been very young; being confronted with violent people he had acted in self-defence. He had subsequently turned over a new leaf, leading, inter alia, to his being granted early release from prison, which indicated that he was no longer regarded as posing a danger to society. The applicant would in any event have preferred to serve a longer sentence if it had meant avoiding deportation and being able to resume his family life in the Netherlands. While the applicant was in detention, his children had been able to visit him regularly and to develop a normal family relationship with him. According to the applicant, following his expulsion his partner and children had visited him on a number of occasions during the summer holidays. Each time they had returned to the Netherlands he had sunk deeper into depression.

By focusing solely on the applicant's responsibility for the consequences of his actions, the State had disregarded the interests of his Dutch partner and his Dutch children. The strength of the relationship with his partner was illustrated by the fact that they had decided to try for a second child while the applicant was still in detention. He would not have taken that decision had he known that he would be refused continued residence in the Netherlands. But the Dutch authorities had waited more than three years after the criminal conviction before deciding to impose an additional penalty on him by withdrawing his residence permit and making him the subject of an exclusion order.

It was only because he did not have Dutch nationality that the authorities had been able to impose the impugned measures on him. However, having left Turkey at the age of twelve, he had spent more of his life in the Netherlands, where he had a very strong entitlement to residence and into whose society he had integrated to such an extent that he did not think of himself as a foreigner. By contrast, in Turkey he felt like a stranger. Even though the exclusion order was nominally limited in time, it was unlikely that he would ever be able to return to live in the Netherlands, given that new legislation had in the meantime been adopted under the terms of which his criminal conviction could be held against him in an application for a residence permit.

Having been informed that he could attend the hearing before the Grand Chamber, the applicant had been unable to resist the temptation to travel to the Netherlands first in order to see his children. He had accepted the offer of a friend to work in the latter's cannabis plantation in order to finance his travels and stay in the Netherlands. No criminal proceedings had been instituted against him but he nevertheless realised that he had committed a mistake capable of prejudicing his chances of living with his family in the Netherlands.

The Government submitted that no support could be found, either in the Convention or in the Court's case-law, for the idea that the expulsion of aliens belonging to the category of second-generation or long-term immigrants was always disproportionate and discriminatory. Such a premise would entirely eliminate the margin of appreciation enjoyed by the State when assessing individual immigration cases. The principle of non-discrimination did not, in any event, come into play, as the situation of nationals and non-nationals was not equal.

They further maintained that the imposition of an exclusion order in the present case had been necessary in a democratic society as well as proportionate. As the decision to impose an exclusion order was a discretionary power, it was not subject to a time-limit, and it was customary for this procedure not to begin until the person concerned had already been subjected, at least in part, to the measures imposed in connection with the criminal conviction. Given that the applicant must be deemed to have been aware that he risked having an exclusion order imposed on him under the applicable legislation, his family-planning choices were entirely his own responsibility.

The Netherlands authorities had decided to withdraw the applicant's residence permit and to impose an exclusion order on him after applying the ‘sliding scale principle’, which took into account the length of his stay in the Netherlands. Even though this may not have been stated explicitly in the text of the decisions at issue, the authorities, as they always did in cases of this nature, had subsequently applied a ‘full’ Article 8 test, involving an assessment of the guiding principles set out by the Court in its judgment in the case of Boultif v. Switzerland (cited above). Account had thus been taken of the very serious nature of the crime committed by the applicant — in respect of which the trial courts had dismissed his claim of self-defence — and also of the fact that it was not his first offence. The fact that the applicant had obtained early release was not of relevance in this context. Early release was virtually automatic and unconditional in the Netherlands, whereas an exclusion order could be imposed on the basis of the person's previous conduct — the serious criminal offence — even if he or she did not pose an actual and immediate threat.

The Government did not deny that the applicant had strong ties with the Netherlands, but noted that he had chosen not to opt for Dutch nationality even though he had been eligible to do so since 1987. They took the view that, having come to the Netherlands at the age of twelve, he must still have some ties with his native Turkey. There were, in addition, no insurmountable obstacles to the applicant's partner and children following him to Turkey, in particular as the children were still very young — much younger in fact than the applicant had been when he first moved to the Netherlands.

Finally, the exclusion order was not of a permanent nature and would be lifted after ten years at the applicant's request, provided he had not been convicted of further criminal offences and had resided outside the Netherlands for ten years. The applicant would then be able to gain re-admission to the Netherlands if he complied with the relevant requirements, namely having sufficient means of existence (120% of the monthly minimum wage) and being able to prove the effectiveness of his family life in the Netherlands.

In their comments submitted under Article 36 § 2 of the Convention and Rule 44 § 2 (a) of the Rules of Court the intervening party, the Government of Germany (see paragraph 10 above), pointed out in the first place that the possibility for a State to expel individual aliens — on whom the Convention did not confer a right not to be expelled — was a necessary means by which a State could effectively fulfil its core tasks, namely maintaining and guaranteeing public safety and the protection of its nationals and other aliens residing on its territory. The fact that an alien had been living on the State's territory for a long time, had perhaps even been born there, and had started a family there did not put him or her on a par with the State's nationals in terms of rights of residence.

The German Government were further of the view that Article 8 of the Convention did not contain a general requirement that exclusion orders be limited in time. It was for the State to decide when and whether to exclude a foreign national from its territory for ever or for a specific period, so long as it abided by the principles of the rule of law and human rights. Moreover, an expulsion ordered in administrative proceedings following a criminal conviction did not constitute a double punishment, either for the purposes of Article 4 of Protocol No. 7 or ‘in the humane sense of the term’. Whereas the primary aim of a criminal penalty was to punish a previous criminal wrong, an expulsion order was aimed at guaranteeing public safety in the future without the intention of inflicting a punishment.

The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997-VI, p. 2264, § 42). 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 paragraph 1 of Article 8, 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 pursued (see Dalia v. France, judgment of 19 February 1998, Reports 1998-I, p. 91, § 52; Mehemi v. France, judgment of 26 September 1997, Reports 1997-VI, p. 1971, § 34; Boultif v. Switzerland, cited above, § 46; and Slivenko v. Latvia [GC], no. 48321/99, ECHR 2003-X, § 113).

The Court considers that these principles apply regardless of whether an alien entered the host country as an adult or at a very young age, or was perhaps even born there. In this context the Court refers to Recommendation 1504 (2001) on the non-expulsion of long-term immigrants, in which the Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers invite member States, inter alia, to guarantee that long-term migrants who were born or raised in the host country cannot be expelled under any circumstances (see paragraph 37 above). While a number of Contracting States have enacted legislation or adopted policy rules to the effect that long-term immigrants who were born in those States or who arrived there during early childhood cannot be expelled on the basis of their criminal record (see paragraph 39 above), such an absolute right not to be expelled cannot, however, be derived from Article 8 of the Convention, couched, as paragraph 2 of that provision is, in terms which clearly allow for exceptions to be made to the general rights guaranteed in the first paragraph.

The aforementioned Parliamentary Assembly Recommendation also advocates that long-term immigrants, with the exception of the category referred to in paragraph 55 above, who have committed a criminal offence should be subjected to the same ordinary-law procedures and penalties as are applied to nationals and that the ‘sanction’ of expulsion should be applied only to particularly serious offences affecting state security of which they have been found guilty (see paragraph 37 above). The Court considers nevertheless that, even if a non-national holds a very strong residence status and has attained a high degree of integration, his or her position cannot be equated with that of a national when it comes to the above-mentioned power of the Contracting States to expel aliens (see Moustaquim v. Belgium, judgment of 18 May 1991, Series A no. 193, p. 20, § 49) for one or more of the reasons set out in paragraph 2 of Article 8 of the Convention. It is, moreover, of the view that a decision to revoke a residence permit and/or to impose an exclusion order on a settled migrant following a criminal conviction in respect of which that migrant has been sentenced to a criminal-law penalty does not constitute a double punishment, either for the purposes of Article 4 of Protocol No. 7 or more generally. Contracting States are entitled to take measures in relation to persons who have been convicted of criminal offences in order to protect society — provided, of course that, to the extent that those measures interfere with the rights guaranteed by Article 8 paragraph 1 of the Convention, they are necessary in a democratic society and proportionate to the aim pursued. Such administrative measures are to be seen as preventive rather than punitive in nature (see Maaouia v. France, cited above, § 39).

Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court's case-law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, the judgments in Moustaquim v. Belgium, Beldjoudi v. France and Boultif v. Switzerland, cited above; see also Amrollahi v. Denmark, no. 56811/00, 11 July 2002; Yilmaz v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27 October 2005). In the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in paragraph 40 of the Chamber judgment in the present case, are the following:

The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:

As to the first point, the Court notes that this is already reflected in its existing case law (see, for example, Sen v. the Netherlands, no. 31465/96, § 40, 21 December 2001, Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 47, 1 December 2005) and is in line with the Committee of Ministers' Recommendation Rec(2002)4 on the legal status of persons admitted for family reunification (see paragraph 38 above).

As to the second point, it is to be noted that, although the applicant in the case of Boultif was already an adult when he entered Switzerland, the Court has held the ‘Boultif criteria’ to apply all the more so (à plus forte raison) to cases concerning applicants who were born in the host country or who moved there at an early age (see Mokrani v. France, no. 52206/99, § 31, 15 July 2003). Indeed, the rationale behind making the duration of a person's stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be. Seen against that background, it is self-evident that the Court will have regard to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there.

The Court considered itself called upon to establish ‘guiding principles’ in the Boultif case because it had ‘only a limited number of decided cases where the main obstacle to expulsion was that it would entail difficulties for the spouses to stay together and, in particular, for one of them and/or the children to live in the other's country of origin’ (op. cit., § 48). It is to be noted, however, that the first three guiding principles do not, as such, relate to family life. This leads the Court to consider whether the ‘Boultif criteria’ are sufficiently comprehensive to render them suitable for application in all cases concerning the expulsion and/or exclusion of settled migrants following a criminal conviction. It observes in this context that not all such migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy ‘family life’ there within the meaning of Article 8. However, as Article 8 also protects the right to establish and develop relationships with other human beings and the outside world (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III) and can sometimes embrace aspects of an individual's social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I), it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of ‘private life’ within the meaning of Article 8. Regardless of the existence or otherwise of a ‘family life’, therefore, the Court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the ‘family life’ rather than the ‘private life’ aspect.

In the light of the foregoing, the Court concludes that all the above factors (see paragraphs 57–59) should be taken into account in all cases concerning settled migrants who are to be expelled and/or excluded following a criminal conviction.

The Court has no difficulty in accepting that the impugned measures constituted interference with the applicant's right to respect for his family life, that that 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. It follows from paragraph 59 above that these measures also amounted to interference with the applicant's right to respect for his private life. Even so, having regard to the particular issues at stake in the present case and the positions taken by the parties, the Court will pay specific attention to the applicant's right to respect for his family life.

The Court considers at the outset that the applicant lived for a considerable length of time in the Netherlands, the country that he moved to at the age of twelve together with his mother and brothers in order to join his father, and where he held a permanent residence status. Moreover, he subsequently went on to found a family there. In these circumstances, the Court does not doubt that the applicant had strong ties with the Netherlands. That said, it cannot overlook the fact that the applicant lived with his partner and first-born son for a relatively short period only, that he saw fit to put an end to the co-habitation, and that he never lived together with his second son. As the Chamber put it in paragraph 46 of its judgment, ‘… the disruption of their family life would not have the same impact as it would have had if they had been living together as a family for a much longer time.’ Moreover, while it is true that the applicant came to the Netherlands at a relatively young age, the Court is not prepared to accept that he had spent so little time in Turkey that, at the time he was returned to that country, he no longer had any social or cultural (including linguistic) ties with Turkish society.

As to the criminal conviction which led to the impugned measures, the Court is of the view that the offences of manslaughter and assault committed by the applicant were of a very serious nature. While the applicant claimed that he had acted in self-defence — a claim that was in any event rejected by the trial courts — (see paragraphs 44 and 50 above), the fact remained that he had two loaded guns on his person. Taking his previous convictions into account (see paragraphs 14 and 16 above), the Court finds that the applicant may be said to have displayed criminal propensities. Having regard to Dutch law and practice relating to early release (see paragraph 34 above), the Court is, furthermore, not inclined to attach particular weight to the fact that the applicant was released after having served two-thirds of his sentence.

The Court concurs with the Chamber in its finding that at the time the exclusion order became final, the applicant's children were still very young — six and one and a half years old respectively — and thus of an adaptable age (see paragraph 46 of the Chamber judgment). Given that they have Dutch nationality, they would — if they followed their father to Turkey — be able to return to the Netherlands regularly to visit other family members residing there.

Even though it would not wish to underestimate the practical difficulties entailed for his Dutch partner in following the applicant to Turkey, the Court considers that in the particular circumstances of the case, the family's interests were outweighed by the other considerations set out above (see paragraphs 62 and 63).

The Court appreciates that the exclusion order imposed on the applicant has even more far-reaching consequences than the withdrawal of his permanent residence permit, as it renders even short visits to the Netherlands impossible for as long as the order is in place. However, having regard to the nature and the seriousness of the offences committed by the applicant, and bearing in mind that the exclusion order is limited to ten years, the Court cannot find that the respondent State assigned too much weight to its own interests when it decided to impose that measure. In this context, the Court notes that the applicant, provided he complied with a number of requirements, would be able to return to the Netherlands once the exclusion order had been lifted (see paragraphs 32 and 51 above).

Finally, the Court notes that the applicant also complained of the fact that after his conviction a period of three years elapsed before the authorities decided to withdraw his residence permit and impose an exclusion order. The Government have explained this delay with reference to domestic law and practice in this area. The Court considers that it does not have to take a stance on this issue, but notes that the applicant was still serving his sentence when the impugned measures were taken (cf. Sezen v. the Netherlands, no. 50252/99, §§ 44 and 48, 31 January 2006). Moreover, in adopting the latter measures, the authorities addressed all relevant considerations militating for or against the denial of residence and use of an exclusion order.

In the light of the above, the Court finds that a fair balance was struck in this case in that the applicant's expulsion and exclusion from the Netherlands were proportionate to the aims pursued and therefore necessary in a democratic society.

Accordingly, there has been no violation of Article 8 of the Convention.