Information Note on the Court’s case-law No. 110
July 2008
Darren Omoregie and Others v. Norway - 265/07
Judgment 31.7.2008 [Section I]
Article 8
Article 8-1
Respect for family life
Decisions to expel and impose an exclusion order on an illegal immigrant who had married a national of the respondent State and fathered her child: no violation
Facts: The first applicant, a Nigerian national, entered Norway in 2001 and applied for asylum. His request was turned down in May 2002. Pending his appeal against that decision, he was granted a temporary work permit and a stay of execution, but at no time was he granted lawful residence in Norway. He met the second applicant, a Norwegian national, in October 2001 and the couple started cohabiting in March 2002. In September 2002 the Immigration Appeals Board rejected his appeal and he was required to leave the country by the end of the month. From that point on, his continued stay in Norway was unlawful. In February 2003 the first applicant married the second applicant, and applied for a right to stay on that ground. However, that request was also rejected. In August 2003 the Directorate of Immigration issued an expulsion order accompanied by a five-year exclusion order on the first applicant for overstaying and working without a permit. He nevertheless continued to live with the second applicant in Norway and in September 2006 the couple had a child, the third applicant. In March 2007 the first applicant was expelled to Nigeria.
Law: The interference with the applicants’ right to respect for their family life was in accordance with the law and pursued the legitimate aims of preventing disorder or crime and protecting the economic well-being of the country. As to the necessity of the measures, the Court noted that the first applicant was an adult when he first arrived in Norway and his links to the second and third applicants were formed only later. The basic condition for expelling him – serious and repeated violations of the immigration rules – had been fulfilled. As to his relationship with the second applicant, the couple could at no stage prior to their marriage have reasonably held any expectation that the first applicant would be granted leave to remain in Norway and they were not entitled to expect that any right of residence would be conferred upon him by confronting the Norwegian authorities with his presence in the country as a fait accompli. Like considerations applied to the third applicant’s birth, which could not of itself give rise to any such entitlement. Whereas the first applicant’s links to Nigeria were particularly strong, his links to Norway were comparatively weak, apart from the family bonds he had formed there with the second and third applicants pending the proceedings. The third applicant was still of an adaptable age and while the second applicant would probably experience some difficulties and inconvenience in settling in Nigeria, there were no insurmountable obstacles in the way of the applicants’ developing family life there, if only through periodic visits by the second and third applicants. As to the five-year exclusion order, its purpose was to ensure that resilient immigrants did not undermine the effective implementation of rules on immigration control. Moreover, it was open to the first applicant to apply for re-entry after two years. In sum, the national authorities had not acted arbitrarily or otherwise transgressed their margin of appreciation.
Conclusion: no violation (five votes to two).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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