Judgement 31434/21

Applicant name SHARIFI
Applicant typeNatural person (immigrant)
Number of applicants 1
Application no. 31434/21
Date 05/09/2023
Judges Gabriele Kucsko-Stadlmayer, President,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Branko Lubarda,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins,
 Anne Louise Bormann
Institution Court
Type Judgment
Outcome Art. 8 Violation
Type of privacy Procedural privacy; relational privacy
Keywords Expulsion; disproportionate
Facts of the caseThe applicant was born in 1992 and in 2001, when the applicant was 9 years old, he entered Denmark together with his parents and siblings. In 2003 they were granted a residence permit. The applicant has a criminal past. When he was a minor, he was convicted of violence and witness tampering and sentenced to six months’ imprisonment, suspended, of theft, use of a motor vehicle belonging to someone else and violations of the Weapons and Explosives Act and the Controlled Substances Act, and of taking a motor vehicle without the owner’s consent. As an adult, the applicant was convicted of repeated violence and for a violation of the Controlled Substances Act. This led to his expulsion combined with twelve-year re-entry ban following convictions for serious offences
AnalysisThere was an interference with the applicant’s right to respect for his private life, the expulsion order and the re-entry ban were “in accordance with the law” and pursued the legitimate aim of preventing disorder and crime. It is interesting that the ECtHR explicitly notes that it doubts whether the family life of applicant was affected, because he only recently met his girlfriend, they had never livid together and because the child was conceived when the applicant was in pre-trial. ‘Family life was thus created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. In such a situation, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8. In addition, the applicant has not pointed to any obstacles of maintaining contact, for example via the telephone or the internet (§31).’ This is interesting, because on many other occasions, the ECtHR emphasizes that future family life and the right to establish and have family ties flourish is protected under Article 8 ECHR.
As to the question of necessity, the Court needs to examine whether “very serious reasons” existed to expel the applicant. On this point, the Court finds that the domestic authorities adequately assessed all relevant factors. The Court notes, however, that, prior to the case at hand, apart from the three offences committed as a minor, as an adult the applicant was convicted on two occasions, but that during the following six years he had no further convictions. Accordingly, it cannot be said that in general during this period he posed a threat to public order. Interestingly, this point is raised by the Court not under the question whether a legitimate interest existed for imposing the measures, but whether these were necessary. The ECtHR concludes that the measures were disproportionate.
Other Article violation?
Damage awarded
Documents Judgment