Now I would like to present you an example of a list of criteria to determine whether an expulsion is necessary and proportionate in a democratic society. We find such a list in the case Amrollahi v. Denmark [1] concerning the expulsion of a refugee. The facts of this case are as follows: The applicant, an Iranian national, obtained first a temporary and then a permanent residence permit in Denmark, after he had deserted the army during the Iran-Iraq war and fled to Denmark to seek asylum. He settled with a Danish woman, whom he subsequently married and with whom he had two children. He was later sentenced to three years’ imprisonment for drug dealing and the courts sought to expel him permanently from Denmark.

The relevant paragraph in this judgement states: The European Court of Human Rights (ECtHR) will consider
the nature and seriousness of the offence committed by the applicant;
the length of the applicant’s stay in the country from which he is going to be expelled;
the time elapsed since the offence was committed and the applicant’s conduct during that period;
the nationalities of the various persons concerned;
the applicant’s family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couple’s family life;
whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age.
Not least, the Court will also consider the difficulties which the spouse of the applicant is likely to encounter in the country of the applicant’s origin.

In this case, the Court recognised on the one hand that drug dealing was indeed a serious offence and that the applicant maintained strong links with his country of origin. On the other hand, it also determined that the relationship he had with his wife was effective, that it would be difficult for her to settle in Iran and impossible for them to settle elsewhere. The Court concluded: In the light of the above elements, the Court considers that the expulsion of the applicant to Iran would be disproportionate to the aims pursued. The implementation of the expulsion would accordingly be in breach of Art. 8 of the Convention.

Although the ECtHR jurisprudence is very casuistic, one can say that the Court distinguishes between three groups of persons:
immigrants of the second and third generation
other foreigners entitled to stay in the host country and
rejected asylumseekers

I would like to compare two judgements handling rejected asylumseekers with one judgement, where the applicant was an immigrant. In this comparison we will see the restrictive approach of the Court towards rejected asylumseekers.

First case: Nnyanzi v. UK [2]

What were the circumstances of the case? The applicant is from Uganda. She is the daughter of a high-ranking politician of the Democratic Party in Uganda. In 1998 the applicant, who was 33 years old at that time, claimed asylum in the United Kingdom on the basis of her father’s political activities in Uganda. In 1999 her application for asylum was refused, in 2000 her appeals were refused. In 2001 the applicant claimed that her removal from the United Kingdom would be a breach of the obligations under Articles 3, 5, 8, 9 and 10 of the Convention and the Human Rights Act. These representations were rejected in 2001. In 2005 her human rights appeal was refused. In 2006 she lodged in an application with the ECtHR and submitted that she had established a private life in the United Kingdom which involved close ties with her church. She had a boyfriend and hoped that the relationship would develop. She also claimed that the state was responsible for the delay of her asylum procedure and subsequent human rights appeal, which made her case exceptional. She had been living in the United Kingdom for almost ten years.
In this case, the Court did not consider it necessary to determine whether the applicant’s involvement with her church and friendship with a man during her stay of almost ten years constitute private life within the meaning of Art. 8 § 1 of the Convention. Even assuming this to be the case, it found that her proposed removal to Uganda was “in accordance with the law” and was motivated by a legitimate aim, namely the maintenance and enforcement of immigration control. The applicant was not a settled migrant and had never been granted a right to remain in the respondent State. Her stay in the United Kingdom had at all times been precarious and her removal was not rendered disproportionate.

The second case is Omoregie v. Norway [3]

This case features a family, consisting of a Nigerian husband, Mr. Omoregie, his Norwegian wife and their daughter. He was expelled to Nigeria in 2007, his wife and daughter still live in Norway. The applicants pointed out that his expulsion split the family, which would amount to a disproportionate interference with the applicants’ right to respect for private and family life.

The ECtHR decided there has been no violation of Art. 8 of the Convention. The Court said that when Mr. Omoregie arrived and applied for asylum in Norway in 2001, he was an adult and had no links to Norway. He met his wife later that year. Already from the beginning of their relationship it must have been clear to them that their prospects of being able to settle as a couple in Norway were precarious. Because of his three brothers in Nigeria, to whom Mr. Omoregie still had contact and the fact that he had lived in Nigeria until the age of 22 the European Court of Human Rights considered his links to Nigeria particularly strong, his links to Norway were comparatively weak, apart from the family bounds he had formed there during his pending proceedings. The Court ruled that this family could live in Nigeria. The wife would probably experience some difficulties and inconveniences in settling in Nigeria. However, the Court did not find these insurmountable, for example English is an official language in Nigeria. In any event, nothing should prevent the wife and daughter from visiting Mr. Omoregie for periods in Nigeria.

This is why the Court found that the interference was “necessary” within the meaning of Art. 8 § 2 of the Convention.

Contrary to these two judgements we find a more liberal approach in Keles v. Germany [4]

The general background of the case is that in 1972 the Turkish applicant, aged ten years, entered German territory in order to live there with his parents and his brother. In 1984 the applicant married a Turkish national in Turkey. In 1986 a son was born to the couple. In March 1988 he was granted a permanent residence permit. In 1989 the applicant’s wife and son followed him to Germany. The couple had three more sons in the following years. The applicant’s wife is in possession of a permanent residence permit; all family members are Turkish nationals. Between 1989 and 1999 the applicant was convicted eight times of criminal offences, four of which relating to traffic offences. In 1999 the Freiburg Regional Government ordered the applicant’s expulsion to Turkey or to another State willing to accept him and issued an unlimited exclusion from the German territory.

The ECtHR had to determine whether the interference was “necessary in a democratic society”. Therefore, the Court’s task was to ascertain whether the expulsion order in the present case struck a fair balance between the relevant interests, namely on the one hand the applicant’s right to respect for his family life, and on the other hand the interests of public safety and the prevention of disorder and crime. The Court considered that the applicant’s expulsion as such was possible. Given however the circumstances of this specific case, in particular the nature of the applicant’s offences, the 27 years of his lawful stay in Germany, the fact that he had been in possession of a permanent residence permit, and the difficulties which the applicant’s children could be expected to face if they followed him to Turkey, the Court considered that an unlimited exclusion from the German territory violates the applicant’s rights to the enjoyment of his private and family life. There had accordingly been a violation of Art. 8 of the Convention.

In the discussion of the problems of the right to remain I would finally like to point out that the ECtHR does not indicate how long the stay of an asylumseeker in the host country has to be so that his expulsion would contradict Art. 8 ECHR.

An analysis of the jurisprudence of the Austrian Administrative Court shows that according to its view asylumseekers who stayed in Austria 10 years or more cannot be expelled even if there are no serious family or other links to Austria [5]. The Administrative Court also considers whether the applicant is responsible for the long duration of the asylum procedure. In the case of an asylumseeker who had strong professional and social links to Austria, a stay of 7 years was sufficient for the court to rule that an expulsion would be unlawful [6].

That was a quick overview over current jurisprudence concerning Art. 8 ECHR.