6.  On 18 August 2001, the first applicant, under a false identity and claiming that he was born in 1983, was sentenced by an Austrian court (the Jugendgerichtshof in Vienna) to a suspended term of four months’ imprisonment for a drugs offence relating to the possession of a small quantity of cocaine. 7.  He entered Switzerland in November 2001. On 18 January 2002 the competent Swiss authorities declared inadmissible his asylum application, which had been lodged under a false identity. He left Switzerland at an unknown date but returned there on 2 September 2003. 8.  On 1 November 2003 the first applicant married a Swiss national who had shortly before given birth to their twin daughters (the third and fourth applicants). By virtue of his marriage he was granted leave to remain in Switzerland (the couple have since got divorced, see paragraph 19 below). 9.  On 6 August 2006 the first applicant was arrested in Germany for drug trafficking and sentenced to 42 months’ imprisonment (judgment of the District Court of Cleves (Germany) of 24 November 2006). The competent authorities considered it established that he had attempted to import 55 doses of pure cocaine, with a total weight of 257 grammes, by swallowing the drug (bodypacking). 10.  In a decision of 23 August 2007, the Office of Migration for the Canton of Basle-Rural found that the first applicant’s leave to remain had become null and void as, having been held in a German prison where he was serving his sentence, he had been outside Switzerland for over six months. In addition, the Office of Migration took the view that he should not be re-issued with a permit, as the fact that he had been convicted and his family were living on benefits constituted grounds for his removal. 11.  Both the first applicant and his wife, in their own names and on behalf of their children, challenged that decision first before the cantonal government, which rejected their appeals, and then before the Basle-Rural Cantonal Court, which also dismissed their appeals in a decision of 14 May 2008. 12.  On 5 May 2008 the first applicant was granted early release from the German prison where he had been serving his sentence. 13.  In a judgment of 8 January 2009 the Federal Court dismissed an appeal by the applicants at last instance. It pointed out that the first applicant had twice been convicted of drugs offences. It found that the offence of which he had been convicted in Germany carried sufficient weight for it not to be relevant that a sentence imposed in Switzerland might have been slightly less harsh. It further observed that the trafficking in question, concerning more than 18 grammes of pure cocaine, constituted a serious case within the meaning of section 19(2) of the Federal Narcotics and Psychotropic Substances Act, punishable by at least one year’s imprisonment. It further found that the fact that the first applicant had offended on only two occasions was of little relevance for the examination of the case.
The court nevertheless admitted that the applicants had been at pains to overcome their reliance on benefits, but also observed that in the meantime they had, on that basis, received a sum which totalled 165,000 Swiss francs (CHF) (about 137,500 euros (EUR)). In addition, it noted that the first applicant had been living with his family in Switzerland only since October 2003 and that he had no real professional activity, even though this was probably connected to the fact that he had tuberculosis.
Moreover, the Federal Court took the view that, having regard to the first applicant’s bleak job prospects, re-offending could not be ruled out. It further considered that, as he did not speak German very well and mainly socialised with migrants from his own country, he had not integrated in Switzerland.
However, the Federal Court did not deny that the applicants enjoyed a real and close family life. It found that the refusal to grant the first applicant a residence permit would probably affect them badly, especially as they could not be obliged to follow him to Nigeria. As far as the first applicant was concerned, the court took the view that he still had an unbroken family network in that country and that he would be able to re-integrate there quite easily. 14.  In a letter of 26 January 2009, the Office of Migration for the Canton of Basle-Rural informed the first applicant that he had to leave Switzerland by 31 March 2009. 15.  In a decision of 10 March 2009 the President of the First Section rejected a request for interim measures under Rule 39 of the Rules of Court. 16.  Between 15 and 17 September 2009 the first applicant was placed in detention pending his removal. 17.  On 23 April 2010 the first applicant was officially declared to have disappeared. On 25 September 2010 he was arrested by the authorities of the Canton of Basle-Rural. In a decision of 28 September 2010 the competent court of that Canton confirmed his detention pending removal until 24 November 2010. In the meantime he separated from his wife. The applicant nevertheless allegedly maintained some contact with his children. The detention was subsequently extended. He was released on 25 January 2011. 18. On 25 January 2011 the Federal Office of Migration banned the first applicant from entering Switzerland with effect until 26 January 2020. It was possible for the ban to be temporarily suspended further to a reasoned request and should it be deemed necessary (see paragraph 21 below). In a letter of 21 August 2012 the first applicant’s representatives informed the Court that the decision of 25 January 2011 had become final. They added that the first applicant was still living in Switzerland, but had separated from his wife. They alleged that he did his best to maintain regular contact with his children. 19.  In a letter of 31 December 2012 one of the first applicant’s two lawyers informed the Court that he and his Swiss wife had got divorced. The lawyer also explained that he had a third child, a daughter born on 21 August 2012 from a relationship with another Swiss national. He was now living with her and wanted to marry her as quickly as possible.
The lawyer attached a copy of a divorce-related judgment from the Liestal District Court dated 27 September 2012, notified to the first applicant’s other lawyer on 2 October 2012. It showed that custody had been awarded to the mother but that the first applicant had access rights in respect of his first two children, limited to one afternoon at least every two weeks.
This new information was duly communicated to the parties and they were invited to submit observations (see paragraphs 28 and 36 below).