Communicated on 25 August 2016
SECOND SECTION
Application no. 25593/14
Ahmad ASSEM HASSAN ALI
against Denmark
lodged on 27 March 2014
STATEMENT OF FACTS
The applicant, Mr Ahmad Assem Hassan Ali, is a Jordanian national of Palestinian origin, who was born in 1977. Currently he lives in Denmark. He is represented before the Court by Mr Lars Thousig Jensen, a lawyer practising in Viborg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In July 1997, when the applicant was 20 years old, he requested a residence permit in Denmark, via the Danish Embassy in Amman, on the grounds of his marriage in 1997 to a Stateless Palestinian woman from Lebanon who lived in Denmark and had obtained Danish nationality. His request was granted and he has been registered as legally residing person in Denmark since November 1997.
Between 1997 and 2001, the spouses had three children together. When they divorced, the applicant maintained contact with the children and his ex‑wife.
In 2002, under Islamic law, the applicant married an Iraqi woman of Kurdish origin. Between 2003 and 2009, the couple had three children together.
The applicant has a criminal record which includes, inter alia, a conviction in June 2006 for assault, threats and drug offences, for which he was sentenced to imprisonment for one year.
By a judgment of 11 March 2009 the City Court in Århus (Retten i Århus) found him guilty, jointly with others, of drug trafficking relating to 1 kg of cocaine from Holland to Denmark, contrary to Article 191 of the Criminal Code. The applicant was convicted and sentenced to five years’ imprisonment.
In addition, the City Court ordered the applicant’s expulsion with a permanent ban on his return. In this decision, it took into account a statement of August 2008 by the Aliens Service (Udlændingeservice) about the applicant’s personal circumstances. It set out, inter alia, that the applicant had resided in Denmark for more than nine years. He spoke Arabic and only a little Danish. An interpreter had been used during his interview with the Aliens Service. He had never had a job in Denmark. The applicant’s parents and siblings remained in Jordan, where the applicant had visited them a couple of years before. Having regard thereto and to the seriousness of the crime, the City Court found that an expulsion order would not breach the applicant’s rights under Article 8 of the Convention.
On appeal, by a judgment of 25 November 2009 the High Court of Western Denmark (Vestre Landsret), henceforth the High Court, upheld the conviction and sentence, although the latter was to include 122 days remaining from his conviction in 2006. The expulsion order was upheld.
The applicant did not request leave to appeal to the Supreme Court (Højesteret).
While serving his sentence, the applicant requested asylum. In support thereof he maintained that he would risk double punishment upon return to Jordan. He also stated that he would lose contact with his three children from his first marriage, since they would not be able to afford to visit him more than once a year. Moreover, his oldest son was mentally disabled and would need special assistance to travel.
The Ministry of Foreign Affairs was consulted. It submitted that double punishment was illegal under Jordanian law, unless the security of the State was at stake, and that it had no knowledge of any case concerning drug offences in which the issue of double punishment had occurred.
On 28 June 2011, the applicant’s request for asylum was refused by the Aliens Service, a decision which was upheld on appeal by the Refugee Appeal Board (Flygtningenævnet) on 31 October 2011.
On 15 August 2012 the applicant had served two-thirds of his sentence and was due to be released on parole. Since he did not consent to the release on parole, he was brought before the City Court which, on 23 August 2012, by virtue of section 50, subsection 2, of the Aliens Act (Udlændingeloven) upheld his detention until a decision was passed as to whether to revoke the deportation order. To this effect, relying on section 50, subsection 1, of the Aliens Act, the applicant claimed that material changes had occurred in his circumstances. He stated, among other things, that he had strong links to his six children, his wife and his ex‑wife, that they had all visited him in prison, and that he would lose contact with them upon return. His wife and her family had stayed illegally as refugees in Jordan and had been fined therefor, so she would not be allowed entry. After his mother had died, he had not had much contact with his family in Jordan.
The applicant’s ex-wife was heard. She stated that the children were now 14, 12 and 11 years old. In her view it would be “catastrophic” if they were separated permanently from their father. They would risk breaking down psychologically if the deportation order were implemented.
The applicant’s wife under Islamic law explained that she spoke Arabic and Sorani. She understood Danish to a certain degree, but had difficulties in speaking the language. The children were now 9, 8 and 7 years old. She lived in Jordan with her parents for five years. When she left in 2000, she was ordered to pay some money and was told that because she could not pay, she could not return to Jordan. She had no documents to this effect. Moreover, she did not want her children to be raised in Jordan and she would not follow the applicant if he were expelled thereto. Her mother and sibling lived in Denmark. Her father had passed away. The children were well, but the applicant’s expulsion would have a very negative effect on them.
By decision of 3 June 2013 the City Court refused to revoke the expulsion order. It noted that the applicant had been convicted of a very serious crime, which had an organised and professional character, and that he had failed to point to material changes, or information, which had not been known at the time of the expulsion order. The City Court did not find any indication that the applicant’s wife under Islamic law could not return to Jordan. Finally, it dismissed the applicant’s allegation that the risk of double punishment had increased.
The applicant filed an appeal against the decision with the High Court, before which the applicant and his ex-wife were heard, and the Ministry of Foreign Affairs was consulted anew. The latter had asked a new legal source, which confirmed the information obtained during the asylum procedure.
The applicant submitted that in May 2013, thus before the above City Court’s decision of 3 June 2013, he had divorced his wife according to Islamic law. He and his ex-wife had talked about marrying again but they would await the outcome of the case at issue. It has not been decided whether she would follow him to Jordan in case of expulsion. There would be no help in Jordan for his disabled son. He broke off contact with his father and his eight siblings in Jordan in 2005. He maintained contact with all his children.
The applicant’s ex-wife stated that it would not be possible for her to follow the applicant to Jordan due to the son’s disability.
On 27 January 2014, the High Court upheld the decision not to revoke the expulsion order.
The applicant’s request for leave to appeal to the Supreme Court was refused on 20 March 2014 by the appeals Permission Board (Procesbevillingsnævnet).
The implementation of the deportation order was scheduled to take place on 8 April 2014.
B. Relevant domestic law
Section 50, subsection 1, of the Aliens Act provides:
“If expulsion under section 49 (1) has not been enforced, an alien claiming that a material change in his circumstances has occurred, cf. section 26, may demand that the public prosecutor bring before the court the question of revocation of the expulsion order. Such a petition may be submitted not less than six months and no later than two months before the date when enforcement of the expulsion can be expected. If a petition is submitted at a later date, the court may decide to examine the case if it deems it to be excusable that the time-limit has been exceeded.”
COMPLAINTS
The applicant complains that it would be in breach of Article 8 of the Convention to expel him from Denmark as he would be separated from his six children.
QUESTION TO THE PARTIES
Was the expulsion of the applicant from Denmark in breach of Article 8 of the Convention?
Full & Egal Universal Law Academy