EHRM, 23-10-2018, nr. 7841/14

The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicant submitted that the Danish court had failed to take relevant circumstances into account in the balancing test, notably that he only had ties to Denmark. He had his whole family and his girlfriend there. He had had jobs and he was equally well integrated as lots of other Danish nationals with convictions. Moreover, the crimes committed were not particularly serious. The courts had also failed to take relevant EU legislation into account.

The Government submitted that the expulsion order was ‘in accordance with the law’ and pursued the legitimate aim of preventing disorder and crime. As to the question of whether the interference was ‘necessary in a democratic society’, the Government emphasised that the Danish courts had struck a fair balance between the opposing interests and carefully assessed the applicant's personal circumstances in accordance with Article 8 and the Court's case-law, including Maslov v. Austria, cited above. In making an overall assessment, they had attached significant weight to the two robberies committed, one in a private home and one a bank robbery, and to the circumstance that the applicant had prior convictions for robberies, including two convictions after he had attained the age of 18 (see also Boujlifa v. France, 21 October 1997, Reports of Judgments and Decisions 1997-VI). Having regard to the subsidiarity principle, the Court should therefore be reluctant to disregard the outcome of the assessment made by the national courts.

The third party intervener, the European Roma Rights Centre (ERRC), submitted that national courts have to carry out the test in Articlesf9 27 and 28 of EU Directive 2004/38, which offers more protection than Article 8 of the Convention, and that it would require a very intensive level of EU law analysis to determine that an EU citizen, especially one with long residence and family ties in the host member State, did not have any EU law protection from expulsion. They also referred to so-called anti-gypsyism in Denmark in recent years and its link to the entry, stay, and expulsion of Roma, and found it crucial for the Court to be particularly alert to stereotypes about Roma, notably if domestic authorities and courts have failed to recognise the right of a Roma as an EU citizen.

The Court reaffirms 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, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, cited above, § 42). 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 Dalia v. France, 19 February 1998, § 52, Reports 1998-I; Mehemi v. France, 26 September 1997, § 34, Reports 1997-VI; Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001-IX; and Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X).

Article 8 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 therefore be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of ‘private life’ within the meaning of Article 8. Indeed, it will be a rare case where a settled migrant is unable to demonstrate that his or her deportation would interfere with his or her private life as guaranteed by Article 8 (see Miah v. the United Kingdom (dec.), no. 53080/07, § 17, 27 April 2010).

The Court has previously held that there will be no family life between parents and adult children or between adult siblings unless they can demonstrate additional elements of dependence (Slivenko v. Latvia [GC], cited above, § 97; Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000). 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 (see Üner v. the Netherlands [GC], no. 46410/99, § 59, 5 July 2005).

In order to assess whether an expulsion order and the refusal of a residence permit were necessary in a democratic society and proportionate to the legitimate aim pursued under Article 8 of the Convention, the Court has laid down the relevant criteria in its case-law (see Üner, cited above, §§ 57-58, and Maslov v. Austria, cited above, §§ 68–76). In Üner, the Court summarised those criteria as follows:

In a case like the present one, where the person to be expelled has not yet founded a family of his own, the relevant criteria are

Lastly, the Court has also consistently held that the Contracting States have a certain margin of appreciation in assessing the need for an 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 Slivenko and Others, cited above, § 113, and Boultif, cited above, § 47).

The Court considers it established that there was an interference with the applicant's right to respect for his private life within the meaning of Article 8, that the expulsion order was ‘in accordance with the law’, and that it pursued the legitimate aim of preventing disorder and crime (see also, for example, Salem v. Denmark, no. 77036/11, § 61, 1 December 2016).

As to the question of whether the interference was ‘necessary in a democratic society’, the Court notes that the Danish courts' legal point of departure was the relevant sections of the Aliens Act, the Penal Code, and notably the criteria to be applied in the proportionality assessment by virtue of Article 8 of the Convention and the Court's case-law.

As flows from the Court's case-law (see paragraph 33), the point of departure for the Court's analysis under Article 8 of the Convention in the present case is the fact that an alien does not have a Convention right to reside in a particular country, a rule which applies to settled migrants like the applicant. However, if a Member State's decision to expel a settled migrant, lawfully residing in the State in question, interferes with his or her family or privacy rights, protected by paragraph 1 of Article 8, the national authorities are under a duty, provided by paragraph 2 of the same provision, to evaluate the individual situation of the migrant in accordance with the criteria set out in the Court's case-law (see paragraph 36 above). In the application of these criteria, the Court has not qualified the relative weight to be accorded to each criteria in the individual assessment, as this analysis is, in the first place, for the national authorities subject to European supervision. However, in Maslov (cited above, § 75), the Court made clear that when a case concerns a settled migrant, who has lawfully spent all or major part of his or her childhood and youth in the host country, ‘very serious reasons are required to justify expulsion’. It is clear that in the light of the facts in the present case, the Court is called upon to examine whether such ‘very serious reasons’ were adequately adduced by the national authorities when assessing the applicant's case and, if so, whether the Court considers itself in a position to substitute its view for that of the domestic courts.

The Court recognises that the City Court made a thorough assessment of the applicant's personal circumstances, carefully balanced the competing interests and explicitly took into account the criteria set out in the Court's case-law (see paragraph 19 above). It was fully aware that very strong reasons are required to justify the deportation of settled migrants (see Maslov, cited above, § 75). It found, making an overall assessment, that although the applicant had no ties to Croatia, due to his criminal past, which included two convictions for three robberies committed when he was an adult, the nature and seriousness of the crimes committed, namely a robbery in a private home and an armed bank robbery, both committed during the probation period for the most recent suspended expulsion order, and the fact that the applicant had twice violated the conditions for suspended expulsion orders, there were such very serious reasons justifying expulsion.

That balancing and proportionality test was approved by the High Court in its judgment of 26 August 2013.

Thus assessing whether the national authorities adduced relevant and sufficient reasons for expelling the applicant, the Court observes that after entering adulthood, the applicant has been convicted twice for robbery which by the very nature of the crime in question is a serious act including elements of violence or the threat of violence. He has also been convicted of other offences against property. In the Court's view, when assessing the ‘nature and seriousness’ of the offences committed by the applicant, the national authorities were thus entitled to take the view that they attained a level of gravity warranting expulsion unless other counterbalancing criteria militated against imposing that measure in the light of the Court's case-law. In this regard, the Court attaches particular weight to the fact that the expulsion of the applicant did not interfere with his family rights as he is an adult and has not made any arguments to the effect that there are additional elements of dependence between himself and his parents or siblings (see paragraph 35 above). Therefore, the interference with the applicant's Article 8 rights was limited to his right to privacy. Furthermore, the applicant has no children, thus obviating the need to take into account weighty reasons directed at protecting a child's best interests. Moreover, and importantly, the Court recalls that under its case-law, the evaluation of the applicant's ‘social’ and ‘cultural ties’ with the host country, here Denmark, is a criteria to be included in the analysis (see paragraph 36 above). On this basis, the Court considers it of importance that the City Court examined the particular situation of the applicant and found that although he has lived most of his life in Denmark he ‘must be considered very poorly integrated into Danish society’. In fact, it can be readily deduced from the file that the applicant has primarily lived a life of crime and consistently demonstrated a lack of will to comply with Danish law. The Court makes clear that unlike in Maslov (cited above), the national authorities based their decision to expel the applicant not on crimes perpetrated when the applicant was a juvenile.

In the light of the above, the Court reiterates that in the interpretation and application of Article 8 of the Convention in cases of the kind in question, emphasis must be placed on securing a fair balance between the public interest and the Article 8 rights of aliens residing in the Member States. Ascertaining whether ‘very weighty reasons’ justify the expulsion of a settled migrant, like the applicant, who has lived almost all his life in the host country, must inevitably require a delicate and holistic assessment of all the criteria flowing from the Court's case-law, an assessment that must be carried out by the national authorities under the final supervision of the Court. Taking account of all of the elements described above, the Court concludes that the interference with the applicant's private life was supported by relevant and sufficient reasons. There are no indications whatsoever that the domestic authorities may have based their decisions on stereotypes about Roma, as it appears to be alleged by the third party intervener, and the applicant never made such a complaint. The Court is also satisfied that the applicant's expulsion was not disproportionate given all the circumstances of the case. It notes that the City Court and the High Court explicitly assessed whether the expulsion order could be deemed to be contrary to Denmark's international obligations. The Court points out in this respect that, although opinions may differ on the outcome of a judgment, ‘where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court's case-law, the Court would require strong reasons to substitute its view for that of the domestic courts’ (see, Ndidi v. the United Kingdom (no. 41215/14, § 76, 14 September 2017; and, mutatis mutandis, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012 and Axel Springer AG v. Germany [GC], no. 39954/08, § 88, 7 February 2012).

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