FIFTH SECTION
DECISION
Application no. 30984/13
Duc Huy NGUYEN
against Norway
The European Court of Human Rights (Fifth Section), sitting on 26 January 2016 as a Committee composed of:
Yonko Grozev, President,
Erik Møse,
Mārtiņš Mits, judges,
and Milan Blasko, Deputy Section Registrar,
Having regard to the above application lodged on 14 May 2013,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Duc Huy Nguyen, is a Vietnamese national who was born in 1987 and lives in Oslo. He was represented before the Court by Mr P. Henriksen, a lawyer practising in Oslo.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In 2004 the applicant arrived in Norway to reunite with his mother and sister after being granted a work permit. His mother had married a Norwegian citizen in 2002 and for that reason had been granted a residence permit in Norway. The applicant’s permit was thereafter renewed on a yearly basis. In April 2007 the applicant was granted a permanent residence permit in Norway and, in March 2009, he lodged an application with the Directorate of Immigration (Utlendingsdirektoratet) requesting Norwegian citizenship.
4. On 18 May 2010 the Directorate of Immigration revoked the residence permit of the applicant’s mother on the ground that her marriage was fictitious. This decision was upheld by the Immigration Appeals Board (Utlendingsnemnda) on 17 November 2011.
5. In the meantime, on 9 September 2010 the Directorate of Immigration revoked the applicant’s residence permit. The Directorate found that the permit had been granted on false grounds, since his mother had provided the authorities with incorrect information about her marriage and that this constituted a ground to revoke his permit. Moreover, the Directorate found that the applicant had not established such links to Norway that he could be granted a residence permit.
6. On 10 September 2010, the Directorate of Immigration rejected the applicant’s request for Norwegian citizenship.
7. The applicant appealed against the decisions to the Immigration Appeals Board, requesting it to quash the decisions and grant him Norwegian citizenship. He claimed, inter alia, that he had not known that his mother’s marriage was fictitious and submitted that he had been living in Norway for seven years, had a job and was well integrated in society.
8. On 28 November 2011 the Immigration Appeals Board rejected the appeals. The Board initially found that the applicant had been granted a residence permit on false grounds and that, according to Norwegian law, his residence permit should therefore be revoked. Moreover, the Board considered that he had not yet established such links to Norway that he could be granted a residence permit on that ground. It stressed, in particular, that the applicant had arrived in Norway when he was 17 years old and thus he had only been living there for seven years, whereas he had spent his whole childhood in Vietnam where he still had close family ties. The Board further noted that the applicant, in May 2011, had married a Norwegian citizen and that, as his sister had done before him, he could lodge an application for family reunification from abroad. Lastly, the Board underlined that States have a right to control the entry of aliens into their territory and their residence there, and that States are not obliged to respect the immigrants’ choice of the country of their residence or authorise family reunification in their territory. The Board concluded that the decision to revoke the applicant’s permit did not violate Article 8 of the Convention.
9. The applicant applied for judicial review before the Oslo City Court (tingrett), requesting it to declare the Immigration Appeals Board’s decision void and grant him a temporary residence permit for the duration of the proceedings. He maintained his claims and added that, contrary to what the Board had found, he had established the required links to Norway since he had been living there for eight years, had married a Norwegian citizen, had a permanent job in Norway and spoke Norwegian fluently. He also claimed that if he were to be sent back to Vietnam, it would interfere with his family and private life.
10. On 22 December 2011 the applicant also lodged an application with the Directorate of Immigration, requesting a temporary residence permit for family reunification purposes. On 25 January 2012 the Directorate rejected the application, finding that the applicant’s wife did not meet the economic requirements established by law in family reunification cases and that there were no other grounds to grant him a residence permit.
11. On 28 December 2012 the City Court, following the applicant’s request for interim measures (midlertidig forføyning) granted the applicant a temporary residence permit for the duration of the judicial review proceedings. Upon appeal by the Directorate of Immigration, however, the Borgarting High Court (lagmannsrett), on 3 April 2013, quashed the City Court’s decision and refused the applicant such a permit. On 30 April 2013 the Supreme Court (Høyesterett) refused leave to appeal.
12. Following this decision, in May 2013, the applicant returned to Vietnam.
13. On 24 September 2013 the applicant lodged an application with the Norwegian Embassy in Hanoi, Vietnam, for a residence permit in order to reunite with his wife in Norway.
14. On 1 October 2014 the City Court rendered its judgment in the judicial review proceedings. It found that the applicant had been granted a residence permit on false grounds and that the decision to revoke the permit was thus in accordance with Norwegian law and the general administrative principles governing the matter. The court also considered that the decision was not unreasonable and that the authorities had not abused their powers. As regards the applicant’s links to Norway and Vietnam, the court stressed that the applicant was a Vietnamese citizen who had lived in Vietnam until he was 17 years old, that he had spent almost his whole childhood in Vietnam, and that he was working for a Norwegian company importing products from Vietnam and other Asian countries. It further noted that the applicant had married a Norwegian citizen and that they were expecting a child. However, even if the applicant had married before the residence permit was finally revoked by the Immigration Appeals Board, the applicant’s child had been conceived after this point and the court could not take that circumstance into account when assessing the matter. It also noted that the applicant, for the second time, had applied to the Directorate of Immigration for a residence permit for family reunification purposes. Since the previous application had been refused because his wife did not meet the economic requirements to grant him a residence permit and she now had an income, the court found that it was plausible that the Directorate would grant him a residence permit this time.
15. As regards a possible violation of Article 8 of the Convention, the court considered that the decision to revoke the applicant’s residence permit had not been disproportionate, even if the measure was burdensome for the applicant. The permit had been granted on false grounds, the applicant had established his family life in Norway at a point when he knew that his immigration status was uncertain, and he had links and close family ties in Vietnam. Taking all of this into consideration, the court concluded that the Immigration Appeals Board’s decision was in accordance with Norwegian law and the Convention and thus valid.
16. The applicant appealed to the High Court, maintaining his claims.
17. However, on 24 April 2015, the Directorate of Immigration granted the applicant a temporary residence permit to reunite with his wife and child in Norway. The Directorate found that there were strong humanitarian grounds to grant the permit, taking into account that the applicant and his wife had lived together from 2010 until he left in 2013, that they had married in 2011 and that they had a child in 2014, who was a Norwegian citizen. In the decision it was noted that the applicant had a right to have the residence permit extended, as long as the legal conditions were still met.
18. As a consequence of the Directorate’s decision, the applicant’s case before the High Court was struck out of its list of cases on 15 May 2015.
B. Relevant domestic law
19. Section 40 of the Immigration Act (Act of 24 June 1988 No. 64, Lov om utlendingers adgang til riket og deres opphold her – utlendingsloven) governs the matter of family reunification and states, inter alia, that an applicant who is a spouse of a Norwegian or Nordic national who is resident, or intends to establish residence, in the realm or a foreign national with a permanent residence permit, shall be granted a residence permit if certain criteria are fulfilled.
20. An application for a residence permit shall, according to Section 56 of the Immigration Act, be issued prior to entry into the realm. If the applicant does not satisfy this condition, the application shall, as a general rule, be refused.
21. A residence permit may be revoked in accordance with Section 63, paragraph 1, of the Immigration Act if the foreign national knowingly provided the authorities with incorrect information or failed to disclose information of significant importance for the decision, or if it follows from general rules of administrative law.
COMPLAINT
22. The applicant complained that his right to family life under Article 8 of the Convention had been violated since he had been forced to return to Vietnam and apply for a residence permit from there, thereby being forcibly separated from his wife and child.
THE LAW
23. The applicant complained under Article 8, which in relevant parts reads as follows:
“1. Everyone has the right to respect for his private and family life, ....
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 wellbeing 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.”
24. At the outset, the Court finds it clear that the relationship between the applicant and his wife and child constitutes “family life” for the purposes of Article 8 of the Convention and that the domestic authorities’ decision to revoke the applicant’s residence permit interfered with their right to respect for their family life.
25. As to the further question of whether the interference was justified under Article 8 § 2, the Court is satisfied that the decision was in accordance with Norwegian law and pursued a legitimate aim, notably the economic well‑being of the country and the effective implementation of immigration control. It remains for the Court to examine whether the expulsion order was necessary in a democratic society within the meaning of Article 8 § 2 of the Convention.
26. In this assessment, the Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 100-101, 3 October 2014, and Butt v. Norway, no. 47017/09, § 77, 4 December 2012).
27. Moreover, Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion on its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see Gül v. Switzerland, judgment of 19 February 1996, Reports 1996-I, pp. 174-75, § 38, and Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 39, ECHR 2006‑I). Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see, among others, Rodrigues da Silva and Hoogkamer, cited above, ibid., and Solomon v. the Netherlands (dec.), no. 44328/98, 5 September 2000).
28. Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. Where this is the case the removal of the non-national family member would be incompatible with Article 8 only in exceptional circumstances (see Jeunesse, cited above, §§ 107-108 with further references).
29. The Court also reiterates that, in principle, Contracting States have the right to require aliens seeking residence on their territory to make the appropriate request from abroad. They are thus under no obligation to allow foreign nationals to await the outcome of immigration proceedings on their territory (see Jeunesse, cited above, §§ 100-101 and Nunez v. Norway, no. 55597/09, § 66, 28 June 2011).
30. Turning to the circumstances of the present case, the Court observes that the applicant was granted a permit to reside in Norway in 2004 but that it was revoked in September 2010 since it had emerged that the permit had been granted on false grounds. The Court also notes that the applicant married his wife in May 2011, which was after the Directorate of Immigration’s decision to revoke his permit, and that he left Norway in May 2013 and travelled to Vietnam, where he remained until he was granted a residence permit for family reunification purposes in April 2015.
31. It follows from the above that the applicant was aware that his immigration status in Norway was uncertain when he married, and that the persistence of his family life in Norway would be precarious. In this situation, the Court notes that the applicant’s removal would be incompatible with Article 8 of the Convention only in exceptional circumstances. Here, the Court would also note that the applicant’s child was conceived and born while the applicant was residing in Vietnam, which shows that he and his wife continued their family life during this period, and that it was thus not completely ruptured.
32. The Court further observes that the applicant’s links to Norway and Vietnam were both strong at the time when he left Norway, since he had lived permanently for a long period of time in both countries, had relatives and family links in both countries, spoke both languages fluently and was working for a Norwegian company importing products from Vietnam. In the light of this, the Court finds that the applicant would not have had any significant problems reintegrating in Vietnam. Furthermore, upon arrival in Vietnam in May 2013, the applicant could already have applied to the Norwegian authorities for a residence permit for family reunification purposes. However, he only did so in September 2013, four months later.
33. The Norwegian authorities granted the applicant’s request for a residence permit in April 2015 on the ground that his wife and child, who were Norwegian citizens, were living in Norway. Thus, the domestic authorities took into account the applicant’s family life and, in particular, that he had a child who was a Norwegian citizen – something that they could not have included in their previous decisions, as the child had not yet been born at that time.
34. The Court would further add that the applicant has not provided the Court with any information about his child or how their relationship was actually affected by the fact that the applicant was not in Norway during the first six months of the child’s life. Indeed, the applicant has not claimed that his family was unable to keep in contact with him, visit him or even reside with him in Vietnam during the period in question.
35. In the light of all of the above, the Court finds that the applicant’s temporary removal from Norway cannot be considered to be incompatible with Article 8 of the Convention.
36. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 18 February 2016.
Milan BlaškoYonko Grozev
Deputy RegistrarPresident
Full & Egal Universal Law Academy