EHRM, 02-04-2015, nr. 27945/10

The Government argued that the Independent Administrative Panel had carefully examined and balanced all relevant factors and had rightfully come to the conclusion that the public interest in maintaining public order and security prevailed over the first applicant's private interests.

Insofar as the first applicant referred to her parents and adult daughter as family members in Austria, the Government pointed out that according to the Court's jurisprudence (A.W. Khan v. the United Kingdom, no. 47486/06, 12 January 2010), relationships between adult children and their parents normally did not fall within the notion of family life of Article 8 of the Convention, unless there were special elements of mutual dependence. The first applicant, however, did not mention such elements in her application to the Court. Insofar as she stated that her parents were in need of nursing care, she herself is to blame for not having been able to assist them because she was in prison.

The Government submitted that the duration of the first applicant's stay in Austria, namely nineteen years until the issue of the exclusion order, was considerably impaired by the fact that she had committed her first offence as early as in 1993, only three years after she had taken up residence in Austria. Her criminal activities extended over her entire stay in Austria. Particularly striking were the short intervals between the offences. The large number of criminally relevant acts, committed on a commercial basis, clearly showed the first applicant's disregard for the Austrian Penal Code. Public order and safety were not only endangered by the commission of serious offences against property, causing considerable financial damage to the Republic of Austria, but also by her repeatedly causing bodily harm.

Insofar as the applicants maintained that the first applicant was no longer a threat to public order and security, as she was under an obligation to care for her child, and because of her good conduct in prison, the Government held that neither her marriage nor the birth of the second applicant had prevented her from committing further criminal offences. The crime of which she had been convicted in 2003 had even been committed together with her former husband. The first applicant must also have been aware of her precarious residence status if she were to be convicted again, after she had been formally warned in that respect by the Aliens Police in their letter dated 29 September 1994.

The Government argued that the first applicant herself had contributed to the intensity of the reduction of her family life by having to serve her prison sentence. In any event, the applicants could maintain their family life in Slovakia, as there are at least two trains per hour between Vienna and Bratislava, the journey time being only one hour. Referring to the case Antwi and Others v. Norway (no. 26940/10, 14 February 2012), the Government submitted that it would be possible for the first applicant to take up residence in Slovakia, as he spoke the Slovak language a little and had been of an adaptable age of seven years at the time of the issue of the Independent Administrative Panel's decision of 6 April 2009. Because of the short distance between the two capitals, he could even live in Slovakia with his mother and continue his education in Vienna.

The Government concluded that in the light of the above arguments, the interference with the applicants' family life was proportionate to the aims pursued and the exclusion order therefore did not violate their right to respect for their private and family life.

In the Convention case-law relating to expulsion and extradition measures, the main emphasis has consistently been placed on the ‘family life’ aspect, which has been interpreted as encompassing the effective ‘family life’ established in the territory of a Contracting State by aliens lawfully resident there, it being understood that ‘family life’ in this sense is normally limited to the core family (Slivenko v. Latvia, [GC], no. 48321/99, § 94, ECHR 2003-X; see also, mutatis mutandis, Marckx v. Belgium, 13 June 1979, Series A no. 31, p. 21, § 45). In contrast, the existence of family life could not be relied on concerning adults who have not substantiated a particular dependency between them (see Slivenko v. Latvia, [GC], cited above, § 97). Such relationships may be protected under the notion of ‘private life’ for the purposes of Article 8, depending on the degree of social integration of the persons concerned (see, for example, Dalia v. France, 19 February 1998, Reports 1998-I, pp. 88–89, §§ 42–45).

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, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuit 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 Mehemi v. France, 26 September 1997, § 34, Reports 1997-VI; Dalia v. France, 19 February 1998, § 52, Reports 1998-I; Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001-IX; and Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X).

In Üner v. the Netherlands [GC] (no. 46410/99, §§ 57–58, ECHR 2006-XII), the Grand Chamber has summarised the relevant criteria to be applied in determining whether interference, in the form of expulsion, is necessary in a democratic society:

Moreover, where children are involved, their best interests must be taken into account (see Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 44, 1 December 2005; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010; mutatis mutandis, Popov v. France, nos. 39472/07 and 39474/07, §§ 139–140, 19 January 2012; and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see Neulinger and Shuruk v. Switzerland, cited above, § 135, and X v. Latvia, cited above, § 96). Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014). In this context, reference is made to Article 3 of the UN Convention on the Rights of the Child, in accordance with which the best interests of the child shall be a primary consideration in all actions taken by public authorities concerning children (see Neulinger and Shuruk v. Switzerland, cited above, § 135, and Nunez v. Norway, no. 55597/09, § 84, 28 June 2011).

Lastly, the Court has also consistently held that the Contracting States have a certain margin of appreciation in assessing the need for interference, but it goes hand in hand with European supervision. The Court's task consists in ascertaining whether the impugned measures struck a fair balance between the relevant interests, namely the individual's rights protected by the Convention on the one hand and the community's interests on the other (see Boultif v. Switzerland, cited above, § 47, and Slivenko v. Latvia, cited above, § 113).

At the outset, the Court finds it clear that the relationships between the applicants constituted ‘family life’ for the purposes of Article 8 of the Convention, which provision is therefore applicable to the instant case. In contrast, the first applicant has not substantiated any particular dependence between her and her other family members living in Austria.

The Court further notes that the exclusion order against the first applicant constituted an interference with both applicants' right to respect for their family life under Article 8 of the Convention. This interference was based on the law and served a legitimate aim in accordance with paragraph 2 of that provision. This was undisputed by the parties. It remains therefore to be examined whether the measures taken against the first applicant were also proportionate to the aims pursued, in particular with a view to the separation from her son.

The first criterion to be considered is the nature and seriousness of the offences committed by the first applicant. The Court notes that her criminal record shows seven convictions, most of them for aggravated fraud, but also for bodily harm, assault and damage to private property. The most severe sanction imposed on her was a three-year prison sentence. Between her conviction in 2002 and her last conviction in 2008, there was no significant period during which she was not involved in criminal activities. In particular, the last conviction must be considered serious. The Court observes in that context that the first applicant's offences became increasingly serious over time. It appears, however, that she did not reoffend after her release from prison in December 2010.

The Court further considers that at the time of the commission of her last offence, the first applicant must have been aware that another criminal conviction could result in her expulsion, as she had been warned to that effect by the authorities as early as in 1994 (see paragraph 19 above). In that context, the Court notes that the exclusion order was issued in September 2008 and will cease to be in force in September 2016, irrespective of whether the first applicant actually left the country (see paragraph 29 above). Because the first applicant was not expelled until December 2012, the exclusion order factually only affects the applicants for less than four years.

Turning to the length of stay of the first applicant, the Court observes that she entered Austrian territory in 1990 as an adult at the age of 24 and was lawfully residing there until the issue of the exclusion order against her. Altogether, she had lived in Austria for some 22 years.

With regard to the first applicant's family situation, it is undisputed that she has close family and social ties in Austria, with her son as well as other family members living there, while she does not seem to have any social links left in Slovakia. However, she speaks the language and spent the formative years of her childhood and adolescence there. Also, Slovakia is a neighbouring state of Austria and a fellow Member State of the European Union, and there are frequent public transport connections between Vienna, where her family lives, and Bratislava, where she was expelled to. This proximity allows her family to visit her often and without much effort, as there are no travel restrictions or visa requirements between the two countries.

The Court accepts that it would have been in the best interest of the second applicant to be able to continue his life in Vienna with his mother present. In that context, the Court notes that the Austrian authorities in their assessment have made ample reference to the applicants' family situation, but came to the conclusion that because of the seriousness of the criminal offences committed by her, the public interest in the first applicant's expulsion outweighed the applicants' personal interest in continuing their family life on Austrian territory.

When it comes to the relationship between the applicants, the Court observes that, according their own statements, which were corroborated by the medical evidence they submitted (see paragraphs 31–33 above), a significant disruption of their family life had already occurred when the first applicant had to start serving her prison sentence in 2007. The separation of mother and child at that time appears to have caused both of them severe psychological problems. The first applicant's expulsion in 2012 without doubt caused another disruption of their family life. However, after her release from prison, the first applicant could not have reasonably expected to be granted further leave to remain in Austria and continue her family life with her son there, as the exclusion order against her had already been legally binding at that time.

In the light of the above considerations, having regard to the serious and repetitive nature of the criminal offences committed by the first applicant and the fact that she was warned by the authorities in 1994 already that further criminal offences could lead to her expulsion; the fact that the first applicant entered Austria as an adult and still has at least cultural ties with Slovakia; the proximity of the country to which she was expelled, which allows her family members to visit her frequently; and the fact that the exclusion order was limited in time and will expire in September 2016, hence less than four years after the first applicant's expulsion, the Court is satisfied that the Austrian authorities have not overstepped their margin of appreciation when assessing the proportionality of the measures taken in accordance with Article 8 § 2 of the Convention.

There has accordingly been no violation of Article 8 of the Convention.