CASE OF BUTT v. NORWAY
Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Pakistan);Pecuniary and non-pecuniary damage - award
Anatoly Kovler;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
5. The first and second applicants, who are sister and brother, were born in Pakistan in 1985 and 1986 respectively and live in Oslo. 6. In 1989 the applicants arrived in Norway with their mother and were in view of the children’s particular situation granted a residence permit on 28 February 1992 on the ground of strong humanitarian considerations (section 8(2) of the former 1988 Immigration Act, see paragraph 45 below). 7. During the summer of 1992 the mother returned with the children to Pakistan, where the children first lived with their grandparents and then with their father and his wife. There they stayed until the turn of the year 19951996, when the mother resettled in Norway with the children. In the meantime, on 2 August 1995 the Directorate of Immigration had granted them a settlement permit, while being ignorant about their stay in Pakistan from 1992. 8. In 1996 the applicants’ father applied for family reunification. His application, which was refused, prompted an investigation by the immigration authorities which revealed that for most of the period from 1992 to early 1996 the applicants and their mother had lived in Pakistan. The authorities further observed that the applicants had strong attachment to Pakistan since they had lived and gone to school in that country from 1992 to early 1996 and because their father still lived there. On 23 January 1999 the Directorate of Immigration decided to withdraw the applicants’ and their mothers’ settlement permit, on the ground that the permit had been granted on the basis of false information provided by the mother about her and the children’s residence in Norway. It was also decided to refuse them further residence in Norway. 9. On 23 August 1999 the Ministry of Justice upheld the Directorate’s decision. Several successive requests for reconsideration were rejected. In May 2001 the children were apprehended with a view to being deported to Pakistan. However, the police decided not to do so, based on their information that they had no contact with the mother or with the family in Pakistan. The police considered that it would be inappropriate to expel them without their mother who had disappeared around the turn of the year 20002001. The applicants had no contacts with their mother until she was hospitalised in Norway in 2004. During this period they lived with an uncle and aunt in Oslo. 10. On 24 November 2003 the second applicant was convicted for unprovoked aggravated physical assault, having hit another person with his fist causing a fracture to the victim’s nose and a two centimetres scar on his eyelid that had to be stitched. For this and certain other offences (withdrawal of 4,600 Norwegian Krone (NOK) from cash points by using another person’s credit card; driving a stolen moped and the possession of 0.2 gram of hashish) he was sentenced to seventy-five days’ imprisonment. 11. In the light of these offences, the Immigration Appeals Board decided on 31 May 2005 to expel him indefinitely, with reference to section 29(1)(c) of the 1988 Immigration Act, as he had been convicted for an offence that was punishable by more than three months’ imprisonment. 12. In June 2005 the applicants sought to challenge the validity of the decision of 23 August 1999 and, as regards the second applicant, that of 31 May 2005. By a judgment of 13 October 2005 the Oslo City Court upheld their action. 13. In September 2005 the mother was expelled to Pakistan, in compliance with the immigration authorities’ decision (see paragraph 8 above). She died in August 2007. 14. On 13 October 2006 the Borgarting High Court found against the applicants. It was observed that when the settlement permit was revoked in 1999, the applicants had in reality resided unlawfully in Norway for three years. At that time they had close relatives in Pakistan, including their father, with whom they had lived for periods a few years before. Nor did the High Court find that the decision of 13 October 2005 regarding the second applicant was disproportionate. 15. On 16 January 2007 the Appeals Leave Committee of the Supreme Court refused the applicants leave to appeal. 16. On 7 January 2008 the applicants lodged a previous application (no. 565/08) under the Convention, complaining that their deportation to Pakistan would constitute a violation of Articles 3 and 8 of the Convention. They also requested an interim measure to stay their deportation under Rule 39 of the Rules of Court. On 8 January 2008 the request was refused. The applicants did not pursue their application. On 6 February 2008, a Committee of three judges decided to strike it out of the Court’s list of cases (Article 37 § 1 of the Convention). 17. In the meantime, on 31 August 2007 the Immigration Appeals Board, in two separate decisions, rejected the applicants’ requests for modification of the decision of 23 August 1999 revoking their settlement (and residence) permit and, as regards the second applicant, the Board’s decision of 31 May 2005 to expel him indefinitely from Norway. The Board observed that such modification was not warranted either by strong humanitarian considerations or a strong attachment to Norway (section 8 (2) of the former 1988 Immigration Act). 18. As regards the first applicant the Board had regard to the fact that she had not had a residence permit since 23 August 1999 and that any links established after this date ought to carry little weight. Furthermore, all of the first applicant’s closest family lived in Pakistan and her brother, the second applicant, had been ordered to leave Norway indefinitely. 19. As regards the second applicant the Board quoted from its decision of 31 May 2005 and maintained its previous view: “As to the [second applicant’s] attachment to Norway, the Board has attached particular weight to the fact that during the period from 1992 to 1995, when he had a residence permit in Norway, he had essentially lived in Pakistan. By the Ministry of Justice’s decision of 23 August 1999 his settlement permit was finally revoked. He does not have a residence permit and is obliged to leave the country. In practice, links that are established during unlawful residence carry little weight. Reference is also made to the fact that [the second applicant’s] mother and sister do not hold a residence permit and are obliged to leave the country. In addition, the applicant has close family in his home country. He therefore ought to be seen as having relatively strong attachment to his home country. The Board cannot see that the [second applicant’s] current situation has been significantly changed since the situation considered in the decision of 31 May 2005.” 20. In respect of both applicants the Board also referred to the reasoning and conclusions in earlier decisions and judgments and emphasised that its conclusions in the present decisions ought to be viewed in the context of those. 21. In September 2007 the applicants challenged that decision before the courts. In this connection they both requested an interlocutory injunction to stop their deportation. These requests were rejected by the City Court on 5 October 2007 and the High Court on 15 November 2007. 22. By a judgment of 4 February 2008, the Oslo City Court quashed the Immigration Appeals Board’s decision of 31 August 2007, disagreeing with the Board’s assessment that the applicants lacked special attachment to Norway. 23. The City Court observed that the applicants, respectively twenty-one and twenty-two years old, had lived in Norway for sixteen and a half years during major parts of their childhood and the entirety of their adolescence. The question was what weight should be attached to their residence in Norway since they had been obliged to leave the country in 1999. 24. It had not been possible for the applicants to obtain the necessary travel documents before they reached the age of majority in 2003 and 2004, respectively. In such a situation the unlawful character of their sojourn had to be disregarded. There was little reason to emphasise their mother’s lack of cooperation in leaving the country. Nor could the applicants be said to have escaped implementation of the deportation, either before May 2001 or thereafter, as it had been decided on 3 May 2001 not to implement the deportation. With the exception of May 2001, no active steps had been taken to implement the decision to expel the applicants and no attempts had been made to this effect pending the judicial proceedings, until the autumn of 2007. Therefore, the applicants’ residence in Norway since 1999 ought to carry a not insignificant weight in the assessment of whether they had special attachment to Norway. 25. The City Court further observed that in Norway the applicants had close relatives – uncles and aunts – and had lived with these since 2001. The applicants had gone to school in Norway, had friends and acquaintances there and were mastering the Norwegian language, both oral and written. Whilst the Immigration Appeals Board had found that the applicants had relatively strong links to Pakistan, the City Court found that these had almost ceased. They had not had contact with their father since 1996 and did not wish to have any contact with him. Their mother had died and it was uncertain whether they had other relatives in the country. They were able to speak Urdu and to understand the language in oral form but could not read or write it. 26. In view of the applicants’ longstanding residence in and attachment to Norway and their little or no connection to Pakistan, the City Court considered that they had special ties to Norway. Accordingly, the Immigration Appeals Board’s decisions of 31 August 2007 were to be quashed. In making a new assessment the Board ought to take as a premise that the applicants had strong attachment to Norway and that it was empowered under the Immigration Act to grant them a residence permit. 27. The State appealed to the Borgarting High Court, which overturned the City Court’s ruling by a judgment of 14 November 2008 and upheld the Immigration Appeals Board’s refusal of 31 August 2007 as being lawful. 28. The High Court found it clear that the refusal to grant residence permits constituted an interference with the applicants’ rights under paragraph 1 of Article 8 of the Convention. In considering whether the interference was justified under paragraph 2, the central question was whether the measure was “necessary in a democratic society”. The High Court had regard to the consideration that where family life has been 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 the removal of the non-national family member would be incompatible with Article 8 only in exceptional circumstances (Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, §§ 38 and 39, ECHR 2006I) and Darren Omoregie and Others v. Norway, no. 265/07, § 57, 31 July 2008). 29. In balancing the competing interests the High Court considered it important when the applicants had become aware that their sojourn in Norway was unauthorised. It was clear that at the latest when they had been apprehended in early May 2001 they had understood that they did not possess a residence permit. Their explanation that they had been unaware until then of their residence status was reliable. At that time they had been sixteen and fifteen years, respectively. 30. The applicants had further stated that their mother had gone under ground at around the turn of the year 2000-2001, and that she had stayed in hiding until the summer of 2005, without theirs having any contact with her or being aware of her whereabouts. However, in 2003 the police had found her handbag with her passport at her brother’s home. The High Court found it hardly probable that the applicants had no contacts with their mother and had no knowledge of her whereabouts from 2001 until the summer of 2005. The authorities’ omission to implement “the refusal of residence” (“oppholdsnektelsen”) ought to be seen in the light of the fact that the police had been unable to get hold of their mother. 31. Nonetheless, there was reason to assume that during the years after 2001 the police did not in practice expect the applicants to leave the country on their own and that they would not be deported without their mother. In any event, the applicants could reasonably perceive the situation in this manner. Shortly after their arrest in May 2001 the applicants had been released because their mother could not be found and it was deemed unfortunate to deport them without her. It had further been clear that the applicants had not possessed Pakistani passports and that the police had done nothing to arrange for them to obtain such passports. Until passing the age of majority in 2003 and 2004, respectively, the applicants had been dependent on the assistance of the Norwegian authorities to obtain passports. 32. The reason why the applicants had not been deported together with their mother when she was expelled on 3 September 2005 was that the main hearing in the applicants’ case had been scheduled for 19 September 2005 and that the immigration authorities had found it correct to give them the opportunity to attend the hearing. 33. Since the applicants could reasonably perceive the authorities to mean that they were not expected to travel to Pakistan on their own, it was difficult to ascribe any responsibility to the applicants for not having taken any steps to leave the country while the mother had gone into hiding from the police. However, after reaching the age of majority, the applicants’ choice to stay in Norway had been something for which they ought to bear the risk and responsibility. 34. There were generally speaking strong immigration policy considerations in favour of identifying children with the conduct of their parents. If it were to be otherwise, there would be a great risk that parents exploited the situation of their children to secure a residence permit for themselves and for the children. However, in the present case there had been no such risk as the applicants had reached the age of majority and their mother was dead. 35. The applicants had developed a strong personal and social attachment to Norway. They had received the essential part of their education and upbringing there, they mastered the language to the full and their education had been adapted to the Norwegian job market. The applicants had until 2005 lived with their uncle and aunt (their mother’s brother and sister) with family in Oslo. They were therefore presumed to have close emotional links to this part of the family. This was also where they had their friends and social network. The first applicant had completed high school and education as a lawyer’s secretary and was currently working in a media monitoring bureau. The second applicant had been pursuing high school as a private candidate. 36. As regards the applicants’ links to Pakistan, these had since their mother’s death in 2007 first and foremost related to their father. They had not seen him after they had returned to Norway in 1996 at the age of eleven and ten, respectively. An uncle (a brother of their late mother) living in the same area of Lahore as the father had met the applicants when visiting his siblings in Oslo the year before. Moreover, the deceased mother had left a house in a well-off area of Lahore, in the vicinity of where the uncle lived. The father occupied parts of the house and let out the remainder. According to Pakistani inheritance rules, the applicants and the father were entitled to three quarter and one quarter, respectively, of the house. Moreover, the applicants had stated that they were unable to write in Urdu and were speaking a “childish” Urdu. They both mastered English well, which was an official language in Pakistan. Thus, in the High Court’s view, the applicants still had certain links to their country of origin, though they might encounter social and professional difficulties upon return. 37. It also observed that in the experience of the Immigration Appeals Board, it was rare that one was confronted with cases where the duration of the unlawful stay had been nearly as long as in the present case. One could therefore question whether general immigration policy considerations, which normally carried weight in cases of unlawful residence, would be sufficiently weighty to regard the refusal of residence as being “necessary in a democratic society”. 38. The High Court, nonetheless, with doubt, arrived at the conclusion that the refusal of residence had not been unlawful as being contrary to Article 8 of the Convention. It attached decisive weight to the fact that the applicants’ strong attachment to Norway had been established during unlawful residence, that they still had links to their home place in Pakistan and that they as adults had relatively good possibilities for settling in Pakistan. The special circumstances pointed to above regarding the background to the applicants’ continuing residence in Norway for so many years could not be regarded as “exceptional circumstances” in the sense that this criterion had been applied by the European Court in its case-law. No new circumstances had occurred between the two decisions of 31 May 2005 and 31 August 2007 (see paragraphs 11 and 17 above) that could warrant a different conclusion than that reached by the High Court in its judgment of 13 October 2006 (see paragraph 14 above). 39. On 25 February 2009 the Appeals Leave Committee of the Supreme Court refused the applicants leave to appeal finding that such leave was not warranted by the importance of the decision for other cases or by other considerations. 40. On 27 December 2007 an article published by the newspaper Dagbladet, which included an interview with the applicants, stated that they lived at an undisclosed address. 41. On 4 January 2008 the police arrested the applicants at an apartment in Y Street, belonging to their maternal uncle and aunt in Oslo. The City Court ordered the applicants’ detention for a period of two weeks. Before the City Court the first applicant said that she had all the time lived at the apartment of her maternal uncle in X Street. She had occasionally gone to the flat in Y Street where her aunt lived in order to fetch things. According to information contained in the City Court’s order of the same date to detain the second applicant for two weeks, he had first cohabited with a girlfriend in a studio outside Oslo from May to October 2006. Before and after, he had lived at his uncle and aunt’s apartment in X Street. 42. During his ensuing detention, the police sought to have him detained on account of a separate matter, namely on suspicion of threats committed against his girlfriend. An indictment was issued on 7 January 2008. The second applicant denied the accusations in the main. The police dropped the charges concerning threats on 23 January 2008. No further information has been submitted in respect of these criminal proceedings. 43. According to the applicants during the summer of 2009 they took refuge in Holmlia Church, Oslo. 44. On 29 June 2010 the Immigration Appeals Board decided to stay the implementation of the applicants’ deportation to Pakistan. 45. The disputed decisions taken by the Immigration Appeals Board on 31 August 2007 in the present case relied notably on section 8, second subparagraph, of the 1988 Immigration Act (subsequently replaced by a new Immigration Act in 2008, which entered into force on 1 January 2010). Section 8 read: “Any foreign national has on application the right to a work permit or a residence permit in accordance with the following rules: 1) Subsistence and housing must be ensured in accordance with further rules laid down in regulations issued by the King. 2) The conditions for work and residence permits laid down in regulations pursuant to section 5, second paragraph, must be fulfilled. 3) There must not be circumstances which would constitute a ground pursuant to other provisions of this Act for refusing the foreign national leave to enter the realm, to reside or to work there. Even if these requirements are not fulfilled a work or a residence permit may be granted if warranted by strong humanitarian considerations, or if a foreign national has a special attachment to Norway. The King may issue regulations containing further rules.”