FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 26832/02
by Ivan ANGELOV
against Finland
The European Court of Human Rights (Fourth Section), sitting on 5 September 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrM. Pellonpää,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
Having regard to the above application lodged on 14 June 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ivan Angelov, is a Bulgarian national who was born in 1969. He is represented before the Court by Mr Mihail Ekimajiev, a lawyer practising in Plovdiv, Bulgaria. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
In February 1997 the applicant arrived in Finland. On 20 August 1998 he was granted a residence permit on the grounds that he lived with a Finnish woman and they had had a child, born on 22 October 1997. The residence permit was valid until 20 August 1999. On an unspecified date the applicant and his partner separated. The applicant and his former partner agreed on access arrangements.
On 4 February 2000 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) rejected the applicant’s application to renew his residence and work permit on the ground that he had repeatedly committed offences. He unsuccessfully appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) of Vaasa.
On 27 April 2000 the Directorate of Immigration ordered the applicant to be deported as he was staying in Finland without the required residence permit. He was further made subject to a two years prohibition on entry into Finland. He appealed to the Administrative Court, requesting that the decision be rescinded. He stated that he had lived in Finland for four and a half years and that he had a child who had a right to visit his father. In Bulgaria he allegedly had no home or close relatives apart from a brother.
On 8 June 2000 the access arrangements as previously agreed by the parents were confirmed by the Social Welfare Authority (sosiaalivirasto, socialbyrån) of Vaasa, and the following day by the Social Welfare Board (sosiaalilautakunta, socialnämnden). The applicant was granted a right to visit his child every other weekend and during holidays.
On 27 June 2000 the Administrative Court rejected his appeal against the refusal of a residence permit. On 2 November 2000 the Supreme Administrative Court refused leave to appeal.
On 10 November 2000 the Administrative Court rejected his appeal against the deportation order. It referred to Article 8 § 2 of the Convention and reasoned, inter alia, that the deportation of the applicant did not amount to an interference with his right to family life, and did not affect the rights of his child contrary to the Convention on the Rights of the Child. It concluded that when balancing the interests for and against his expulsion, and taking into account the reasons why his residence permit was not renewed, the applicant could be deported to Bulgaria.
He applied for leave to appeal to the Supreme Administrative Court, claiming, inter alia, that he had not committed any recent offences and was capable of supporting himself and his child.
On 5 March 2001 he married a woman who had a permanent residence permit in Finland.
On 8 January 2002 the Supreme Administrative Court refused leave to appeal. In its written submissions to the Supreme Administrative Court the Directorate of Immigration noted that the applicant had been ordered to be deported as he had committed 10 petty offences. After the deportation order he had committed a further three offences, namely driving a motor-vehicle without a licence and was further suspected of misleading an official by using a false identity.
According to the information provided by the Government, which was not denied by the applicant, the applicant re-entered Finland in May 2002. Subsequently he applied twice for a new residence permit on the basis of his new marriage, his son and his family ties. His applications were rejected. In its decision of 17 December 2002 the Directorate of Immigration found that the applicant endangered public order and security and considered that his marriage was a sham. On 17 December 2003 the Administrative Court agreed, noting, furthermore, that the spouses’ divorce was pending. Further, according to that information, the applicant’s prohibition on entry into Finland remains in force until 6 November 2006.
B. Relevant domestic law and practice
Domestic law
Section 1, subsection 4 (179/1998) of the Aliens Act (ulkomaalaislaki, utlänningslagen; 378/1991, “the Act”), as in force at the relevant time, provided that the application of the Act should not restrict aliens’ rights any more than necessary.
Section 40, subsection 1 (1) of the Act provided that an alien could be deported if he resided in Finland without the required passport or a residence permit. According to subsection 1 (3) an alien could be deported, inter alia, if he or she had committed an offence for which the minimum penalty was more than one year’s imprisonment, or if he or she had repeatedly committed criminal offences.
Section 41 of the Act provided that circumstances such as the length of the alien’s stay in Finland, the existence of a parent-child relationship, family and other ties with Finland, or, in connection with section 40, subsection 1(3) of the Act, the nature of the offence or offences committed, had to be taken into account as a whole when deportation was being considered.
Section 42 (154/1995) of the Act provided that an expulsion may be ordered by the Directorate of Immigration if so requested by the police. The Directorate of Immigration could in certain exceptional circumstances order an expulsion even if the measure had not been requested by the police. The person concerned had to be heard.
Section 43 (154/1995) of the Act provided that an alien could be prohibited from entry into Finland for a maximum of five years or until further notice in a decision concerning deportation or in a decision concerning refusal of entry made by the Directorate of Immigration. Such an order could be revoked by the Directorate of Immigration, either entirely or for a limited period, owing to changed circumstances or for an important personal reason.
Domestic practice
The Government referred to the following decisions of the Supreme Administrative Court.
KHO 1992 A 59: The applicant had repeatedly committed offences. After being informed of a deportation order, he had married a Finnish citizen. He had a child with another Finnish citizen. He also studied at a university. Considering all the facts of the case, the circumstances as a whole and especially the type of the offence, the applicant’s deportation did not violate his right.
KHO 1992 A 63: The court found no sufficient reasons for deporting the applicant family from Finland on the ground that they had no visa or residence permits, given their long stay in Finland and their other circumstances and ties with the Finnish society.
KHO 1993 A 26: The court did not find grounds for deporting the applicant, given his ties with Finland, including his marriage-like relationship with a Finnish citizen of the same sex.
KHO 1997 A 96: The court did not find sufficient grounds for deporting the family, given the children’s interests and the family’s circumstances as a whole. In that case, the applicant had been granted a residence permit for his studies at a university. The residence permits of the applicant and his family members were not extended because the applicant had not pursued his studies. The Supreme Administrative Court found that the family had lived together in Finland more than six years, during which it had integrated into Finnish society and its way of life. The elder child went to a Finnish school and the younger child was at a kindergarten. The family members spoke Finnish and had relatives in Finland. The parents carried on business in Finland, and therefore their subsistence was secured at least partly.
Decision No. 3103 of 27 November 2002: The court found no sufficient grounds for deporting the applicant, who had immigrated to Finland together with his mother in 1985 at the age of seven. The court stated, inter alia, that the then Finnish husband of the applicant’s mother had adopted him abroad in 1985. He had a child with a Finnish citizen, and they had joint custody of the child. He did not live together with the child or the child’s mother. The applicant had committed a number of offences, including an aggravated narcotics offence. He had also undergone narcotics detoxification. However, the applicant had a permanent residence permit for Finland since 7 October 1993. At the time of the court’s ruling he had lived in Finland for some 17 years. In the overall assessment of the case, the court paid particular attention to his long stay in Finland and to the fact that he had received his school education in Finland. He had integrated into Finnish society and had no ties with his home country.
KHO 2004:124: The court found that the facts speaking against deportation of the applicant had more weight than the two aggravated narcotics offences, consisting of the smuggling of a large amount of hashish, which he had committed in 1996 and 1997. The court took into account, inter alia, the applicant’s family life with a Finnish citizen and their four children, the problems they would have if they had to settle in the applicant’s home country, the length of time taken to process the case and the fact that the applicant had not committed any other offences.
COMPLAINTS
1. The applicant complained under Article 8 of the Convention that the deportation order of 27 April 2000 violated his right to respect for his family life as it threatened his relations with his child, and that the deportation order was not made in accordance with the law.
2. In his submissions of 16 January 2006 he also complained that the new prohibition on entry valid until 6 November 2006 aggravated the violation of Article 8 as it broke his ties with his son.
THE LAW
1. The applicant complained that his deportation from Finland and the prohibition on entry into Finland amounted to a disproportionate interference with his rights under Article 8, which provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. Was there "family life" within the meaning of Article 8?
(a)The parties’ submissions
The Government observed that the applicant had failed to show that he had close and real ties with his son. He had never officially lived together with the child’s mother or the child. In any event, their cohabitation had ended by the beginning of 1998. The applicant did not have custody of his son, nor had he met with him on a regular basis when he lived in Finland, despite his visiting rights. Further, he had not documented any contributions to his son’s maintenance.
The applicant contested the Government’s assertion. He referred to the case of Berrehab v. the Netherlands (judgment of 21 June 1988, Series A no. 138, § 21), stressing that his son was born during his cohabitation with the son’s mother. Their life together lasted more than a year. After the parents had separated, he continued to visit his son regularly, as acknowledged by the Directorate of Immigration. He also contacted him by phone and sent presents. Moreover, in her submissions to the Directorate of Immigration the mother had objected to his deportation because of their child.
(b)The Court’s assessment
The Court recalls that the concept of family life on which Article 8 is based embraces, even where there is no cohabitation, the tie between a parent and his or her child, regardless of whether or not the latter is legitimate (see, Boughanemi v. France, judgment of 24 April 1996, Reports of Judgments and Decisions 1996‑II, § 35, Berrehab v. the Netherlands, cited above, § 21). Although that tie may be broken by subsequent events, this can only happen in exceptional circumstances (see Gül v. Switzerland, judgment of 19 February 1996, Reports 1996-I, § 38). The parties disagree on how long the applicant lived together with his son’s mother and the son. In any event, the cohabitation lasted some months or a year. After that, the applicant met with his son, although not on a regular basis. The Court does not find any exceptional circumstances to suggest that the bond of “family life” between the two has been broken. Article 8 § 1 applies.
2. Was the deportation order an unjustified interference with that family life?
(a)The parties’ submissions
The Government observed that even if the applicant’s deportation would constitute interference with his family life, it was in accordance with the law and was a proportionate measure which pursued a legitimate aim, namely that of the economic well-being of the country and/or the prevention of disorder and crime.
As to the assessment of the necessity to deport the applicant, the Government stressed that the domestic courts had made an overall assessment as required by the domestic law: the applicant’s repeated commission of offences, the changed grounds for his entry into and residence in Finland as well as his ties with Finland, and especially those with his child, were all taken into account.
In the Government’s view the applicant’s ties with Finland were not particularly strong. At the time of the deportation order, he had been in Finland for slightly more than three years. Furthermore, apart from the child, he had no relatives there. Referring to the case of Jakupovic v. Austria (no. 36757/97, §§ 19 (in fine), 28 and 31, 6 February 2003) they emphasised that the applicant’s cohabitation with his child’s mother had only lasted a relatively short time. He had not met with his child on a regular basis when living in Finland, nor had he documented any contribution to his maintenance.
Further, as to the applicant’s second marriage, the Directorate of Immigration had grounds to presume that it was a sham. In any event, his family life with that spouse can be deemed to have ended, since the latter had applied for divorce on 8 April 2003.
In addition, sufficient contacts between the applicant and his child would be possible outside Finland during the prohibition on the applicant’s entry into Finland until 6 November 2006, and thereafter during the applicant’s visits to Finland or in his home country.
Furthermore, during his stay in Finland, the applicant had repeatedly committed offences. During the period from 14 February 1998 to 20 March 1999, he had committed eight petty thefts and was sentenced to fines for each of these (8 to 15 day-fines). He was also sentenced to 60 and 50 day-fines, respectively, for assaults committed on 23 August 1998 and 22 May 1999. He had also been sentenced twice (on 23 August 1998 and 22 May 1999) for assault. The applicant had also committed offences after the deportation order had been made. These offences were not serious enough to justify imprisonment but, being repeated, they showed that he was indifferent to the prohibitions and orders imposed by law.
In the applicant’s opinion the domestic decisions were not “in accordance with the law” as the courts had failed to observe section 40 of the Aliens Act in assessing the arguments pro and contra his deportation. In any event, his deportation could not be seen as necessary in a democratic society. The domestic decisions in this respect were fragmentary, consisting of abstract and speculative phrases and failing to balance the conflicting interests at stake. The refusal to allow him to stay in Finland and its impact on contacts with his son for five years had not been proportionate.
While admitting that the cohabitation with his son’s mother did not last very long, he emphasised that he continued to meet with his son, who had, moreover, also stayed at the applicant’s home. Although he did not meet with his son regularly, this was only because he lived far away. He referred to the case of Berrehab v. the Netherlands (cited above, § 22-23), arguing that he could not meet with his son outside Finland. He further contested the Government’s assertion that his second marriage was a sham, finding that opinion to be speculative.
Finally, he stressed that the offences were committed long before his deportation. His life had later stabilised. As regards the comparatively petty offences committed about two years before the deportation, he stated that he had paid the fines imposed on him.
(b)The Court’s assessment
As to the question whether the deportation in issue was "in accordance with the law", the Court finds that the deportation had a basis in the Aliens Act, as in force at the relevant time. Further, it pursued one or more of the legitimate aims listed in Article 8 § 2, namely that of the economic well-being of the country and the prevention of disorder and crime.
As regards the question whether the expulsion order was “necessary in a democratic society” in pursuit of the above-mentioned aim, the Court recalls that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. Nevertheless, the expulsion of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life guaranteed by Article 8 § 1 of the Convention (see, among other authorities, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 18, § 36).
The Court reiterates that when deciding on the deportation of an alien the State must strike a fair balance between the competing interests of the individual and of the community as a whole. However, the State enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see Gül v. Switzerland, cited above, § 38). Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g. a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration will also be whether family life was 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 (see Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 39, ECHR 2006‑...).
Under the Court’s well-established case law, the Contracting States have the power to deport aliens convicted of criminal offences in order to maintain public order. 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 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, inter alia, Boultif v. Switzerland, judgment of 2 November 2001, Reports 2001-IX, p. 130, § 46; and Jakupovic v. Austria, cited above, § 25).
Turning to the present case the Court notes that the applicant arrived in Finland in February 1997. At the time of the deportation order the applicant had not been in Finland for a long time – some three years only. His connection with Finland was based mainly on the fact that his son lived there. His cohabitation with his son’s mother has ended and he married another woman after the Administrative Court’s decision ordering his deportation. Apparently the marriage has ended. It does not appear that he has established any other link with the country. In fact, he complained to the Court only in so far as the deportation allegedly interfered with his relationship with his son.
Although the closeness of the relationship between the applicant and his son was contested by the Government, the Court notes that the applicant was granted a right to visit his son every other weekend and during holidays. It also appears that they did have some contacts, although the applicant did not visit his son on a regular basis. His son cannot be expected to settle in Bulgaria and it might be difficult, economically and otherwise, for the son to make frequent visits to the applicant. However, to the extent that their financial situation would allow it, there does not seem to be any obstacle for the son to visit the applicant in Bulgaria or in a third country. In this respect the Court notes that the applicant was prohibited from entering Finland for a limited period. The prohibition is not of an indefinite or even lengthy duration.
As to the reasons for which the deportation decision was issued, the Court notes that the applicant was granted his first residence permit on the ground that he was cohabiting with a Finnish citizen and that they had a child. In February 2000, however, the Directorate of Immigration refused to renew his residence permit, having found that the applicant had continuously committed offences. By that time, the applicant’s cohabitation with his son’s mother had ended. The decision was upheld by the appellate courts. The Court notes that the applicant had committed some thirteen offences during his stay in Finland, both before and after the deportation order. As submitted by the Government, the offences were not very serious as such but, being repeated, they tended to show the applicant’s clear inclination to disobey the law.
In these circumstances, and taking into account the margin of appreciation left to the Contracting States, the Court concludes that the national authorities did strike a fair balance between the applicant’s rights on the one hand and the legitimate interests of the Contracting State on the other. Thus, his deportation may reasonably be considered “necessary” within the meaning of Article 8 § 2 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. As to his complaint that the prohibition on entry until 6 November 2006 aggravates the interference with his right to respect for family life, the Court notes that the applicant has failed to provide the Court with information on whether he sought leave to appeal from the Supreme Administrative Court against the decision of the Administrative Court of 17 December 2003. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy