AS TO THE ADMISSIBILITY OF
Application No. 31049/96
by Pedro and Marielle NAKUNZI
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 March 1996 by
Pedro and Marielle NAKUNZI against Sweden and registered on 18 April
1996 under file No. 31049/96;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 15 May 1997 and the observations in reply submitted by
the applicants on 8 July 1997;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is an Angolan citizen born in 1962. The
second applicant is a Swedish citizen born in 1966. They reside in
Sundbyberg, Sweden. Before the Commission they are represented by
Mrs. Madelaine Seidlitz, a lawyer practising in Stockholm.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The first applicant came to Sweden and applied for asylum on
6 March 1991. In April 1991 he met the second applicant. They moved
in with each other in July 1991 and later married. On 2 May 1992 the
second applicant gave birth to the their first daughter, E.
After the National Immigration Board (Statens invandrarverk) had
rejected the first applicant's application, the Aliens Appeals Board
(Utlänningsnämnden), by decision of 2 December 1992, granted him a
temporary residence permit on account of his family ties. The permit
was later prolonged, eventually until 14 August 1994.
On 17 November 1993 the District Court (tingsrätten) of Solna
found the first applicant guilty of fraudulent use of a document
(missbruk av urkund) and sentenced him to sixty day fines.
On 21 July 1994 the District Court of Stockholm convicted the
first applicant on several counts of aggravated fraud and attempted
aggravated fraud by means of forgery of documents (grovt bedrägeri och
försök till grovt bedrägeri medelst urkundsförfalskning). The court
found that, between November 1992 and February 1993, the first
applicant in collaboration with others had used false bank giro forms
to induce foreign banks to transfer large amounts of money from
accounts in the respective banks to accounts in Swedish banks which had
been opened by the perpetrators under false names. By means of false
documents and signatures, they had later withdrawn or tried to withdraw
the amounts from the Swedish accounts. Furthermore, using forged
foreign bank cheques, they had induced or attempted to induce Swedish
banks to cash the cheques and deposit the amounts on their accounts.
The amounts involved in the crimes in which the first applicant was
implicated totalled approximately 1.5 million Swedish crowns (SEK).
The first applicant was sentenced to four years' imprisonment. The
public prosecutor did not request that he be expelled, nor did the
court raise the issue on its own motion.
The applicants' second daughter, C, was born on 13 October 1994.
On 2 January 1995 the Svea Court of Appeal (Svea hovrätt) upheld
the District Court's judgment of 21 July 1994. The appellate court's
judgment later gained legal force.
On 7 February 1995 the National Immigration Board rejected the
first applicant's application for a permanent residence permit or a
prolongation of his temporary permit and ordered his deportation. In
view of the above convictions, the Board considered that he was not
entitled to a residence permit despite his family ties.
The first applicant started to serve his prison sentence at
Skänninge Prison on 26 August 1995.
The first applicant appealed against the National Immigration
Board's decision to the Aliens Appeals Board. He stated that he had
not engaged in any criminal activities after February 1993 and that he
had never committed any acts of violence. He also pointed out that he
had not been detained during the criminal proceedings and that the
courts apparently had not found any reason to order his deportation.
He also referred to his children's need of their father and claimed
that, due to the general situation in Angola and the youngest
daughter's allergy to certain foods, it was not possible for the other
family members to follow him to Angola. Invoking the judgment of the
European Court of Human Rights in the case of Beldjoudi v. France
(judgment of 26 March 1992, Series A no. 234-A), he maintained that his
deportation would violate Article 8 of the Convention.
On 4 September 1995 the Aliens Appeals Board rejected the
applicant's appeal. The Board had regard to the Beldjoudi case but
considered that it was considerably different from the first
applicant's. It further found that, due to the first applicant's
previous criminal activities, there were reasons to call into question
his future conduct. Thus, notwithstanding his family ties and the
interests of his children, he could not be granted a residence permit.
The first applicant later lodged a new application with the
Aliens Appeals Board. He claimed, inter alia, that his eldest daughter
had suffered from anxiety, nightmares and stomach pains since he
started to serve his prison sentence. He submitted a psychologist's
statement, according to which it was of decisive importance for the
children's development that the family would reunite as soon as
possible, and invoked the United Nations Convention on the Rights of
the Child.
On 17 January 1996 the Aliens Appeals Board rejected the new
application, finding that no essential new facts had been invoked.
In an opinion of 18 March 1997, concerning the first applicant's
possible probationary release, the Prison and Probation Administration
(kriminalvården) at Skänninge Prison considered that there was no clear
risk that he would commit further serious crimes. According to his
contact person at the prison, the prospects of his re-integration into
society were good. The contact person thus recommended that he be
released on probation after having served half the prison sentence.
On 25 August 1997, following a further application for a
residence permit, the Aliens Appeals Board decided to stay the
enforcement of the first applicant's expulsion until further notice.
This application is presently pending before the Board. In support of
the application, the applicants have submitted a medical certificate
of 20 August 1997 concerning their two daughters, issued by a child
psychiatrist and a psychologist at the Children's Psychiatric Clinic
(Psykiska Barna- och Ungdomsvården) in Solna. According to the
certificate, the first applicant's expulsion is likely to entail
serious consequences for the children's mental health and development.
On 26 August 1997 the first applicant was released on probation
after having served half his prison sentence.
COMPLAINTS
The applicants complain that the deportation of the first
applicant to Angola would constitute a violation of their right to
respect for their family life under Article 8 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 March 1996 and registered on
18 April 1996.
On 15 January 1997 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48 para.
2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 15 May
1997, after an extension of the time-limit fixed for that purpose. The
applicants replied on 8 July 1997.
On 22 August 1997 the applicants requested the Commission to
petition the respondent Government to stay the first applicant's
expulsion until the Commission had decided on the admissibility of the
application. On 25 August the President of the Commission decided not
to indicate to the Government, pursuant to Rule 36 of the Commission's
Rules of Procedure, the measure suggested by the applicants.
THE LAW
The applicants complain that the deportation of the first
applicant to Angola would constitute a violation of their right to
respect for their family life. They invoke Article 8 (Art. 8) of the
Convention, which reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The respondent Government submit that it could be argued that the
first applicant's expulsion will entail no interference with his right
to respect for his family life as, at the time of the applicants'
marriage, he did not have a permanent residence permit and thus was
well aware that his continued stay in Sweden was uncertain. Moreover,
the applicants might be able to settle in Angola or a third country.
Should, however, the Commission find that the expulsion would entail
an interference with the above right, the Government maintain that the
interference would be justified under Article 8 para. 2 (Art. 8-2) of
the Convention. In this respect, the Government refer to the first
applicant's conviction for several serious crimes and to the legitimate
aim of preventing disorder and crime. Furthermore, considering that,
at the time of marriage, the first applicant only had a temporary
residence permit, it is natural to assume that the applicants were
prepared to settle in another country. According to the Government,
no difficulties to take up residence in a third country have been
brought forward by the applicants. Finally, should the other family
members not join the first applicant when he is expelled, he can be
given special permission by the National Immigration Board to pay short
visits to Sweden to see his family.
The applicants submit that the first applicant's expulsion would
not be proportionate to the aim of preventing crime. Claiming that
there is no risk that he will commit further criminal offences, they
refer to the opinion of the Prison and Probation Administration of
18 March 1997. The applicants further submit that residence permits
given on account of family ties have to be renewed every six months
until, after a two year period, a permanent residence permit is
granted. When the first applicant received his first permit, the
applicants had been living together for a long time, were married and
had had their first daughter. The second applicant and the two
children, who are Swedish citizens, cannot, for reasons of language,
culture and education, follow the first applicant to Angola, where the
family would not be able to find housing or work. Moreover, the
youngest daughter is allergic to penicillin and certain foods,
including milk and eggs, and would be in great danger in Angola. The
separation of the children from their father could lead to irreparable
psychological problems for the children. The first applicant no longer
has any relatives in Angola, as they live as refugees in other parts
of the world. Regard should also be had to his long stay - more than
six years - in Sweden. Further, the possibility of the first applicant
paying short visits to his family in Sweden is, according to the
applicants, not economically feasible.
The Commission recalls that no right of an alien to enter or to
reside in a particular country is as such guaranteed by the Convention.
However, the expulsion of a person from a country in which close
members of his family live may amount to an unjustified interference
with his right to respect for his family life as guaranteed by Article
8 (Art. 8) of the Convention (cf., e.g., Eur. Court HR, Moustaquim v.
Belgium judgment of 18 February 1991, Series A no. 193, pp. 19-20,
paras. 43-46).
The Commission notes that the applicants have lived together
since July 1991, that they married in May 1992 and that they have two
daughters. Finding that the first applicant's expulsion would
jeopardise the applicants' continued family life, the Commission
considers that the expulsion could be considered as an interference
with their right to respect for their family life under Article 8
para. 1 (Art. 8-1). It is therefore necessary to ascertain whether the
expulsion would satisfy the conditions of Article 8 para. 2 (Art. 8-2).
It has not been contested that the expulsion order was issued "in
accordance with the law". Further, notwithstanding the opinion of the
Prison and Probation Administration at Skänninge Prison of 18 March
1997, the Commission considers, in view of the crimes of which the
first applicant has been convicted, that the enforcement of the
expulsion order would pursue the legitimate aim of preventing disorder
and crime.
The Commission recalls that it is for the Contracting States to
maintain public order in particular by exercising their right, as a
matter of well-established international law and subject to their
treaty obligations, to control the entry and residence of aliens. For
that purpose they are entitled to order the expulsion of aliens
convicted of criminal offences. However, their decisions in this field
must, in so far as they may interfere with a right protected under
para. 1 of Article 8 (Art. 8-1), be "necessary in a democratic
society", that is to say, justified by a pressing social need and, in
particular, proportionate to the legitimate aim pursued. In this
regard, a margin of appreciation is left to the Contracting States.
The task of the Commission is to determine whether the expulsion in
issue would strike a fair balance between the relevant interests,
namely the applicants' right to respect for their family life, on the
one hand, and the prevention of disorder and crime, on the other (cf.,
e.g., Eur. Court HR, Boughanemi v. France judgment of 24 April 1996,
Reports 1996-II,
No. 8, pp. 609-610, paras. 41-42, and Bouchelkia v. France judgment of
29 January 1997, Reports 1997-I, No. 28, paras. 48-49).
The Commission notes that the first applicant has lived in Sweden
for more than six years, almost all the time with the second applicant.
Their family life was established at a time when the first applicant
had no permit to reside in Sweden. When he was later given such a
permit, it was valid for a limited period of time. It is true that it
was renewed and that the first applicant was likely to receive a
permanent residence permit after a few years. However, the applicants'
continued family life in Sweden has all the time been an unsettled
question. Their situation is not comparable to the case of Beldjoudi
v. France, invoked by the applicants, as the person to be deported in
that case, Mr. Beldjoudi, was born in France, had spent his whole
life - over forty years - there and had been married to Mrs. Beldjoudi,
a French woman, for more than twenty years (ibid., p. 28, paras. 76-
77).
Of particular importance in the present case is the first
applicant's conviction, on 21 July 1994, of serious offences of fraud.
For this - his second conviction - he received a four year prison
sentence. The crimes were committed less than two years after his
arrival in Sweden, some of them before he received his first temporary
residence permit.
The Commission does not overlook the difficulties faced by the
other family members in the event of the first applicant's expulsion
from Sweden, in particular the hardship suffered by the children if
they are separated from their father and the youngest daughter's
allergy problems if the family would follow the first applicant to
Angola. However, taking into account the first applicant's conviction,
the circumstances under which the crimes were committed and the margin
of appreciation left to the Contracting States, the Commission
considers that the Swedish authorities have not failed to fulfil their
obligation to strike a fair balance between the relevant interests.
Thus, the interference with the applicants' right to respect for their
family life would be justified under Article 8 para. 2 (Art. 8-2) of
the Convention in that it can reasonably be considered necessary for
the prevention of disorder and crime.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy