FIFTH SECTION
Application no. 38030/12
Farida Kathoon KHAN
against Germany
lodged on 19 June 2012
STATEMENT OF FACTS
The applicant, Ms Farida Kathoon Khan, is a Pakistani national, who was born in 1963 and lives in sheltered accomodation in Haina. She is represented before the Court by Ms E. Gabsa, a lawyer practising in Giessen.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1990 the applicant married in Pakistan and converted to her husband’s faith, that of the Ahmadi religious group. As a result, her family split with her.
The applicant and her husband went to Germany in 1991. The husband was granted refugee status but the applicant’s own application for asylum was refused. As the spouse of a refugee, she received a temporary residence permit on 16 June 1994.
On 11 February 1995 she gave birth to her son.
In 1998 the applicant and her husband separated. The son stayed with the applicant. The applicant worked and did not rely on social benefits.
On 7 September 2001 the applicant received an indefinite residence permit.
In March 2004 the applicant became unemployed due to changed behaviour and psychological problems.
On 31 May 2004 the applicant killed a neighbour in a state of acute psychosis by strangling her and throwing her down the staircase.
On 15 July 2004 the applicant was committed to a psychiatric hospital (Vitos Klinik für forensische Psychiatrie).
On 22 June 2004 the applicant and her husband divorced and custody rights over the minor son were transferred to the former husband.
On 13 July 2005 Giessen Regional Court ordered her committal to a psychiatric hospital as she had committed manslaughter in a state of mental incapacity.
On 4 June 2009 the administrative authority Waldeck-Frankenthal ordered the applicant’s deportation. The authority held that, given the applicant’s committal to a psychiatric hospital, she posed an imminent danger for the public. If she were to remain in Germany, public safety would be endangered. The personal circumstances of the case, her long stay in Germany, her residence status and her family relations, were considered, but did not reduce the discretion of the authority to order her deportation.
The authority further noted that the applicant was not integrated and was not able to communicate in German. The remaining family in Pakistan could help her. Medical care was available in Pakistan.
From November 2009 on the applicant had extensive privileges in the forensic hospital, e.g. she was granted 31 days of “vacation” per quarter, which had not given rise to any complaints. She also worked full-time in the laundry department of the clinic.
On 1 March 2011 the Kassel Administrative Court dismissed the applicant’s appeal. Invoking section 56 of the Residence Act it noted that the applicant could only be deported where there were serious grounds and where there was an increased probability of reoffending as she had held an indefinite residence permit and been lawfully resident in Germany for more than 5 years. The court held that there was still a significant risk that the applicant would re-offend, as her committal order had not been lifted and she was not integrated into German society. In the opinion of the court Article 8 of the Convention was not applicable as the applicant had no significant family relations. As the applicant received a small pension she had access to medical treatment in Pakistan, furthermore her family would most likely support her although they had declined to do so when asked by the German embassy. The religion of the applicant would not expose her to further threats.
On 23 May 2011 the application for leave to appeal was dismissed by Hessen Administrative Court of Appeal.
The applicant complained in vain about the right to be heard (Gehörsrüge). She argued that her submissions on her improved state of health and the privileges she had been granted had not been taken into proper consideration.
On 24 November 2011 the Marburg Regional Court lifted the hospital treatment order on the recommendation of a medical expert report and released the applicant on probation for 5 years. It ordered the applicant to live in sheltered accommodation (betreutes Wohnen) close to the forensic clinic. It held that the danger of the applicant’s re-offending had become so insignificant due to the treatment in the clinic and the regulated and structured living accommodation that any residual risk had to be tolerated.
On 13 December 2011 the applicant’s constitutional complaint against the deportation order was not admitted for review by the Federal Constitutional Court.
The applicant was notified on 19 September 2013 that a petition to the parliament of Hessen was not successful.
B. Relevant domestic law and practice
Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (Aufenthaltsgesetz)
“Section 55
Discretionary expulsion
(1) A foreigner may be expelled if his or her stay is detrimental to public safety and law and order or other substantial interests of the Federal Republic of Germany.
(2) (...)
(3) In reaching the decision on expulsion, due consideration shall be accorded to
1. the duration of lawful residence and the foreigner’s legitimate personal, economic and other ties in the Federal territory,
2. the consequences of the expulsion for the foreigner’s dependents or partner who is/are lawfully resident in the Federal territory and who lives/live with the foreigner as part of a family unit or cohabits with the foreigner as his or her partner in life,
3. the conditions specified in Section 60 (2) and (2b) for the suspension of deportation.
Section 56
Special protection from expulsion
(1) A foreigner who
1. possesses a settlement permit and has lawfully resided in the Federal territory for at least five years,
(...)
shall enjoy special protection from expulsion. He or she shall only be expelled on serious grounds pertaining to public security and law and order. Serious grounds pertaining to public security and law and order generally apply in cases covered by Section 53 and Section 54, nos. 5 to 5b and 7. If the conditions specified in Section 53 apply, the foreigner shall generally be expelled. If the conditions specified in Section 54 apply, a discretionary decision shall be reached on his or her expulsion. “
C. Council of Europe Instruments
Recommendation Rec(2000)15 of the Committee of Ministers of the Council of Europe to member States concerning the security of residence of long-term migrants states, inter alia:
“4. As regards the protection against expulsion
a. Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria:
– the personal behaviour of the immigrant;
– the duration of residence;
– the consequences for both the immigrant and his or her family;
– existing links of the immigrant and his or her family to his or her country of origin.
b. In application of the principle of proportionality as stated in paragraph 4.a, member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled:
– after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension;
– after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension.
After twenty years of residence, a long-term immigrant should no longer be expellable.
c. Long-term immigrants born on the territory of the member state or admitted to the member state before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen.
Long-term immigrants who are minors may in principle not be expelled.
d. In any case, each member state should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.”
COMPLAINTS
The applicant complains under Article 8 of the Convention about a deportation order to Pakistan. She alleges that the deportation order was disproportionate taking into account her 23 years of legal residence, her prior economic independence and her law abidance. She had only once and in a state of mental incapacity committed a serious illegal act. However, according to the 2011 psychiatric prognosis she no longer represents a danger to the general public. She complies with every condition of the probation order set up by the Marburg Regional Court. For these reason her long legal stay as well as the resident status she enjoyed in Germany far outbalance the possible interest of the public to have her deported. If she were to be deported, family contacts with her adult son in Germany would be disrupted. She claims that she has had regular contacts with her son during her stay in the forensic hospital.
Referring to Article 2 of the Convention the applicant alleges that after deportation her life and her health in Pakistan would be seriously endangered as she would not have effective access to medical facilities and treatment in Pakistan as even the respondent Government via its embassy in Pakistan had conceded. Her life and her health, however, depend on access to psychiatric care and medicine. In addition, she would be particularly vulnerable in Pakistan not only because of her illness, but also because of her low social status as a divorced female convert.
QUESTION TO THE PARTIES
Would the expulsion of the applicant constitute a violation of the applicant’s right to respect for her private and/or family life contrary to Article 8 of the Convention given, in particular, the length of the applicant’s lawful residence in Germany, her mental state, and the facts that she has not been convicted of a criminal offence, and that she is no longer detained?
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