Information Note on the Court’s case-law 52
April 2003
Mehemi v. France (no. 2) - 53470/99
Judgment 10.4.2003 [Section III]
Article 8
Article 8-1
Respect for family life
Permanent exclusion order commuted to 10 years following a judgment of the Court followed by return and admission to country: no violation
Facts: The applicant is an Algerian national who was born in France. He lived In France with all his family from his birth in 1962 until his deportation in February 1995 under a permanent exclusion order. In 1986 he married an Italian national – who subsequently acquired French nationality – with whom he had three children who are French nationals. In 1991 he was found guilty of drug-trafficking and sentenced to six-years' imprisonment. That sentence was upheld by the court of appeal, which also made a permanent exclusion order. An application by the applicant to have the exclusion order lifted was dismissed by the court of appeal and the Court of Cassation. The applicant was deported in February 1995. He lodged an application with the Convention institutions and on 26 September 1997 the Court delivered a judgment in which it held that had been a violation of Article 8, since the permanent exclusion order was disproportionate to the aims pursued. In October 1997, relying on the Court's judgment, the applicant made a further application to have the exclusion order lifted. In March 1998 the court of appeal reduced the term of the exclusion order to ten years. The applicant appealed to the Court of Cassation without success. In the meantime, in October 1997, he sought a pardon, but this was ultimately refused; his lawyer sent a letter to the Minister of Foreign Affairs enquiring what he proposed to do following the Court's judgment of 26 September 1997. In a letter in reply of November 1997 the Minister of Foreign Affairs indicated that the Government were prepared to allow the applicant to return to France immediately. He added that the applicant would be subject to a compulsory residence requirement until either the exclusion order was lifted or he had obtained a pardon. The applicant was granted a special visa in February 1998 and returned to France. He was required to reside in a specified district in Lyons and to report to the local police station twice monthly. He was issued with a temporary six-month residence permit in April 1998 that stated that he was authorised to work and required to reside in the département of Rhône. The residence permit was systematically renewed until September 2001. In October 2001 the compulsory residence requirement imposed in 1998 was relaxed and the permanent exclusion order made in July 1991, which had subsequently been reduced to ten years, was deemed to have been running from that latter date. The applicant was thereafter entitled to apply for a one-year residence permit endorsed: “worker”.
Law: Article 8 – (a) The applicant's position from the date of the Court's judgment until his return to France: in its judgment, the Court had found that the applicant had family ties in France and that his deportation to a country with which he had no connections other than his nationality constituted an unjustified interference with his private and family life. In the proceedings now before the Court, the Government had not produced any fresh evidence calling those findings into question. In the circumstances, implicit in the notion of “respect” for the applicant's “private and family life” was a requirement for the State to bring the applicant's exile to an end by taking measures to enable him to be reunited with his family in France. Furthermore, the interests at stake and the fact that by then the applicant had been separated from his family and exiled in a country with which he had no connections for more than three years meant that the measures should have been implemented with particular expedition. A certain period was required for residence permits to be processed and delivered. In the case before the Court, there had been delays attributable to the authorities during the three and a half months that had elapsed between the initial moves by the applicant's lawyer following the Court's judgment and the decision to issue a special visa. However, delays of a maximum of three and a half months could not be regarded as being so unreasonable as to interfere with the applicant's right to respect for his private and family life, even in the special circumstances of the case in which administrative considerations had necessarily to play a secondary role. The authorities had used reasonable endeavours to facilitate the applicant's rapid return and, therefore, had not violated his right to respect for his private and family life.
Conclusion: no violation (unanimously).
(b) The applicant's situation since his return to France: since the end of February 1998 the applicant had thus no longer been required to reside in a country with which he had no connections other than his nationality and had been able to renew his links with his family. The authorities had subsequently issued him with residence permits authorising him to work. While the exclusion order remained effective, the permits were subject to a compulsory residence requirement. Those circumstances, and in particular, the compulsory residence requirement, had deprived the exclusion order of all legal effect. Accordingly, while subject to the exclusion order the applicant had been in no danger of proximate or immediate deportation. Once the exclusion order had lapsed the risk had disappeared altogether. As the Contracting States retained an unfettered discretion to control the entry of aliens and the length of their stay subject only to their complying with the provisions of the Convention and in particular Article 8 thereof, the applicant could not lay claim to any special immigration status in France. Moreover, he had been authorised to carry on a professional activity.
Conclusion: no violation (unanimously).
The Court held unanimously that no separate issue arose under Article 2 to Protocol No. 4.
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This summary by the Registry does not bind the Court.
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