Judgement 35740/21

Applicant nameAL-MASUDI
Applicant type Natural person (immigrant)
Number of applicants 1
Application no.35740/21
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 No violation
Reason Necessary in a democratic society (prevention crime and disorder)
Type of privacy Private life; relational privacy
Keywords Expulsion; criminal; immigrant; private life; family life
Facts of the caseThe applicant was born in Iraq in 1994. In 1998, he entered Denmark on the basis of family reunion and was granted a permanent residence permit in 2002.  When he was a minor, he was convicted of theft and a violation of the Weapons and Explosives Act, and sentenced to imprisonment for thirty days, of robbery and ordered to undergo structured, controlled socio-educational treatment subject to defined conditions and for a violation of the Controlled Substances Act. As an adult, he was convicted of violence and a violation of the Controlled Substances Act, of aggravated violence and sentenced to six months’ imprisonment, and issued with a suspended expulsion order with a probation period of two years, of violence and a violation of the Controlled Substances Act, for which he was sentenced to six months’ imprisonment and cautioned about the risk of expulsion; and for violations of the Act on Controlled Substances. When he was sentenced for being in possession of 57.1 grams of MDMA and 12.1 grams of amphetamine for the purpose of distribution and for keeping a sawn-off shotgun and spare cartridges in an unlocked cabinet in his living room at home, he was sentenced to two years and nine months’ imprisonment, and expelled from Denmark with a lifelong ban on returning.
AnalysisThe ECtHR is quick to establish that there was an interference with applicant’s private life, that the interference was prescribed for by law and served the legitimate aim of preventing disorder and crime. As to the necessity question, the Court recognises that very serious reasons were required to justify the expulsion of the applicant, a settled migrant who had entered Denmark at the age of three and had lawfully spent most of his childhood and youth in the host country. The ECtHR finds that there was and that the domestic courts attached adequate weight to all the criteria relevant to the case.

The Court adds that it is doubtful that there has been an interference with the applicant’s right to respect for family life; that life consisted of his having met his girlfriend, a Danish national, a few days before he was detained on remand. Their child had been conceived while the applicant was in pre-trial detention. Accordingly, this information did not have any impact on the high court’s decision to uphold the expulsion order. The couple never lived together. The Court than uses an even if reasoning, stressing that even if such a relationship would be sufficient for establishing a “family life”, its disruption would not have the same impact as it would have had if they had been living together as a family for a long time. ‘Moreover, the applicant never lived with his child, who was conceived while he was in detention. 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 to maintaining contact, for example via the telephone or the Internet (§32).’ This reasoning is a bit difficult to follow. Was there a family life or not? If so, there is either an interference or there is not, but the Court again seems unclear whether this was the case. The most likely interpretation is that the ECtHR here finds that there were weak family ties that could be continued at a same level as before through telephone and/or video calls. That means, however, the applicant and the mother of this child could not develop closer family ties and that the child would have difficult establishing a close bond with his father. This seems to deprive the child of an important part of a normal upbringing.
Other Article violation?
Damage awarded
Documents Judgment