Information Note on the Court’s case-law No. 146
November 2011
Mallah v. France - 29681/08
Judgment 10.11.2011 [Section V]
Article 8
Article 8-1
Respect for family life
Conviction with absolute discharge for assisting illegal immigrant: no violation
Facts – The applicant is a Moroccan national who has been lawfully resident in France for more than thirty years, together with his wife and their five children. In August 2003 his daughter married B.A., a Moroccan national who lived in Morocco. They applied for B.A. to be allowed to join his wife in France under the rules on family reunion. In December 2005 B.A. entered France lawfully on a three-month visa and stayed with his father-in-law, the applicant. In March 2006, after the visa had expired, B.A. remained in France with his wife, who was now pregnant. In April 2006 the border police received an anonymous letter reporting the presence of an illegal immigrant at the applicant’s home. The police subsequently carried out a search as part of a preliminary investigation by the public prosecutor, and took B.A. and the applicant into custody. After refusing a settlement proposed under the agreed penalty scheme, the applicant was summoned by the public prosecutor to appear before the criminal court in July 2006 for facilitating the unauthorised residence of an alien. In August 2006 B.A. and his wife applied for family reunion. On 30 August 2006 the public prosecutor informed the applicant that he had decided to discontinue the proceedings against him. He found that the applicant’s alleged offence of facilitating the unauthorised residence of his son-in-law no longer appeared to be made out, in view of the new information brought to his attention concerning B.A.’s immigration status. However, in September 2006 the criminal court, ruling on the basis of the public prosecutor’s summons of July 2006, found the applicant guilty of facilitating the unauthorised residence of an alien. In the same judgment the court granted the applicant an absolute discharge because the effects of the offence had ceased. In October 2006 the application by B.A. and his wife for family reunion was granted. In April 2007 the court of appeal upheld the criminal court’s judgment, finding that the applicant’s conduct had been guided solely by generosity towards his son-in-law. The applicant appealed to the Court of Cassation, arguing that the judgment amounted to a violation of Article 8 of the Convention. In December 2007 the Court of Cassation dismissed his appeal.
Law – Article 8
(a) Applicability – Given that the son-in-law was living in the applicant’s family home – the fact forming the subject matter of the case – that he had been married to the applicant’s daughter for two years and that the couple had applied to the authorities for family reunion and were expecting a child, the existence of a family tie between the applicant and his son-in-law was established.
Conclusion: admissible (unanimously).
(b) Merits – After noting that the applicant had taken in his son-in-law despite being aware that he was an illegal immigrant, the domestic courts had found him guilty of facilitating the unauthorised residence of an alien, although it had granted an absolute discharge. The applicant’s conviction had amounted to interference within the meaning of Article 8; the interference had been in accordance with the law and had pursued a legitimate aim, namely the prevention of disorder or crime.
In making it an offence to assist aliens in unlawfully entering, moving about and remaining in France, the legislature had intended to tackle illegal immigration and organised networks such as smugglers. Statutory provision was made for immunity from prosecution for an illegal immigrant’s closest family members, namely ascendants, descendants, brothers, sisters and spouse or cohabitee in a de facto marital relationship. However, the applicant had not fallen into the category of relatives to whom the law referred and had therefore not been entitled to immunity from prosecution. Since the offence had been made out in accordance with the law, which, moreover, was sufficiently clear and foreseeable in its application, the domestic courts could not have reached any other decision than to find the applicant guilty. However, taking into account the special circumstances of the present case and the applicant’s conduct, which had been guided solely by generosity, the courts had granted him an absolute discharge when convicting him. Accordingly, the authorities had struck a fair balance between the various competing interests, namely the need to prevent disorder and crime and the need to protect the applicant’s right to respect for his family life. The measure taken against him had therefore not interfered disproportionately with his right to respect for his family life. Furthermore, it had had only limited consequences in terms of his criminal record.
Conclusion: no violation (six votes to one).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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