Information Note on the Court’s case-law No. 136
December 2010
Gezginci v. Switzerland - 16327/05
Judgment 9.12.2010 [Section I]
Article 8
Expulsion
Deportation order against long-term illegal immigrant: deportation would constitute a violation
Facts – The applicant is a Turkish national who has lived in Switzerland since 1978, on the basis of residence permits from 1980 to 1998 and unlawfully during the remaining periods. In 1997 the national authorities decided not to renew his residence permit. A few months later they set March 1999 as the deadline for his deportation from Switzerland. However, the applicant did not leave the country. In 2003, after a serious work-related accident, he applied for a residence permit on humanitarian grounds. The authorities refused the application. Shortly afterwards his wife disappeared without trace, leaving him to care for their eleven-year-old daughter. The applicant lodged several unsuccessful appeals against the deportation order, which is still in force.
Law – Article 8: In view of the applicant’s very long-standing residence in Switzerland, the refusal to grant him a residence permit on humanitarian grounds amounted to interference with his right to respect for his private life. That interference had been in accordance with the law and had pursued the legitimate aims of ensuring the economic well-being of the country, preventing disorder or crime and protecting the rights and freedoms of others. In order to determine whether it had been necessary in a democratic society, a number of factors had to be taken into consideration. First of all, the applicant’s convictions between 1982 and 1992 had not been very serious and since 1993 his conduct did not appear to have been open to criticism from a purely criminal-law standpoint. Next, the applicant had lived in Switzerland for approximately thirty years, not counting periods spent abroad, thanks to the considerable tolerance shown by the authorities since 1999. Furthermore, some members of the applicant’s family still lived in Turkey and would be able to help him resettle there and find work; he also spoke Turkish fluently. Similar considerations would apply were he to opt for Romania, a country which he knew from visits, where his wife lived and his daughter had spent much of her life, and where he appeared to have been in gainful employment. Furthermore, it was clear from his attitude that he was unable and unwilling to find employment in Switzerland. As to his daughter, given that she had spent most of her life in Romania and Turkey, was a citizen of both countries and probably spoke both languages, she could reasonably be expected to be able to adjust if she returned there. Lastly, the applicant’s health was not liable to significantly hinder his integration in Turkey, given that he would have access there to the necessary medicines and treatment and would undoubtedly receive an invalidity pension. Accordingly, regard being had in particular to the fact that the applicant had been residing unlawfully in Switzerland since 1997, his lack of willingness to integrate there, his failure to abide by the rules of the country and the fact that his ties with his country of origin did not appear to have been completely severed, the respondent State could be said to have struck a fair balance between the interests of the applicant and his daughter on the one hand and its own interest in controlling immigration on the other.
Conclusion: the applicant’s deportation would not amount to a 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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