CASE OF KAPLAN AND OTHERS v. NORWAY
Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Turkey)
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The first applicant currently lives in Turkey and the second to fifth applicants live in Stavanger, Norway. 6. The first applicant, a mechanics and a professional driver, is of Kurdish ethnic origin coming from south-east Turkey. He was not a member of any political party but like many other members of his family sympathised with the PKK (Kurdistan Workers Party). During the violent conflicts between Turkish authorities and Kurdish people in 1992 and 1993 he lived in the City of Sirnak. The first applicant stated that he had assisted the PKK and that because of several occurrences he felt persecuted by Turkish authorities. Fearing for his life he found it necessary to flee in March 1993. 7. The second applicant, Mrs Naime Kaplan, married the first applicant in the early 1990s. She and the third applicant, their son Azat (born in 1993), continued to live with the first applicant’s parents in Sirnak. After the latter’s house was set on fire, she and the son spent a period as refugees in Iraq. 8. Over a period of more than a year and a half, the first applicant sojourned at several locations in Turkey. He had some contact with his wife and son and applied for visa to visit Denmark, where his older brother had obtained asylum (in 1988). Only the first applicant obtained a visa. In February 1995 he arrived in Denmark and applied for asylum. His wife and son went back to Sirnak, where she gave birth to the couple’s second son, Cemsit, in August 1995 (the fourth applicant). 9. The first applicant’s asylum application in Denmark was refused. He then stayed in several European countries and returned to Denmark where his second asylum application was refused in September 1998. 10. On 23 October 1998 he applied for asylum in Norway. The Directorate of Immigration rejected the application on 30 September 1999. His appeal to the Ministry of Justice was rejected by a decision of 21 January 2000, according to which he was under a duty to leave the country and measures were to be taken to implement this decision. 11. On 7 December 1999 the Sunnhordaland District Court (tingrett) convicted the first applicant on charges of aggravated assault and sentenced him to 90 days’ imprisonment, of which 60 days were suspended. He was found guilty of having inflicted with a kitchen knife a cut in the shoulder of another man which had been mended with three stiches. Even though the extent of the injury was not considerable, the offence was deemed very serious and could easily have had great consequences for the victim. In mitigation, the District Court had regard to its finding that, whilst it was uncertain who had started the row, the victim had gone further than the applicant and had provoked him by hitting his face with his palm and by uttering serious insults against his family. The victim had also withdrawn his criminal complaint against the applicant. The judgment was transmitted to the Directorate of Immigration for consideration of whether there was a ground for ordering his expulsion. 12. On 5 May 2000 the Ministry of Justice refused to revise its earlier rejection (of 21 January 2000) of the first applicant’s asylum application and asked the Stavanger Police to implement the decision. It contained no mention of the judgment of 7 December 1999, but on 5 May 2000 the Ministry also forwarded a copy to the Directorate of Immigration requesting it to assess whether there was a basis for expulsion. The applicant did not leave the country, and the authorities took no specific measures to deport him until he received a warning to this effect issued on 31 October 2006. 13. In 2003 the applicant was fined for driving too fast, and in 2005 and 2006 for driving without a license. 14. The second applicant arrived in Norway with the couple’s two sons and applied for asylum on 24 May 2003, which the Directorate of Immigration rejected on 30 December 2003. The Immigration Appeals Board upheld the rejection on 25 February 2005, stating that unless they left the country voluntarily, the expulsion was to be forcibly implemented, if possible in coordination with that of the first applicant. 15. On 4 August 2005 a daughter of the couple, Rojin, was born (the fifth applicant). 16. Pending amendments to the Immigration Regulations, the Directorate of Immigration decided on 19 September 2006 to stay the implementation of the decision of 25 February 2005 regarding the wife and the sons but in a separate decision, referring inter alia to his conviction of 1999, rejected the first applicant’s request to stay the implementation of the refusal of 5 may 2000 to grant him asylum. 17. Following the warning of 31 October 2006, the first applicant was on 1 November 2006 arrested and detained for two weeks with a view to deportation. On 2 November 2006 the Directorate of Immigration decided, under section 29 of the Immigration Act 1988, to order his expulsion and to prohibit his re-entry in Norway for an indefinite duration. This was because of his criminal conviction and of his long illegal stay and work in Norway. On appeal, the decision was upheld by the Immigration Appeals Board on 2 March 2007. 18. In the meantime, on 1 November 2006, the first applicant requested the Oslo City Court (tingrett) to issue an order that he be granted a residence- and work permit and an interlocutory injunction to stay his deportation pending the outcome of the judicial proceedings. 19. Following a request by the first applicant to the Immigration Appeals Board, the latter granted him on 8 November 2006 a stay of implementation of his expulsion until the City Court had decided on his request for an interim measure to stay his deportation. 20. On 5 July 2007 the Immigration Appeals Board rejected a request to revise its earlier rejection (of 25 February 2005) as there were not sufficient reasons to grant the wife and the children a residence permit on humanitarian grounds. 21. In an appeal of 18 December 2007 the applicants’ lawyer challenged the lawfulness of the decision of 5 July 2007 on the ground that Rojin had been diagnosed as suffering from child autism and had special needs. 22. In the light of this information the parties agreed before the City Court that the immigration authorities should consider the matter anew for all the family members. 23. After having decided on 3 January 2008 not to implement the expulsion with respect to the wife and the children, the Immigration Appeals Board on 28 February 2008 decided (with two votes to one) to alter its decision of 5 July 2007 and granted the second applicant, with the children, a residence- and work-permit under section 8(2) of the Immigration Act 1988 (according to which such a permit could be granted if warranted by weighty humanitarian considerations or particular links to the country, see paragraph 49 below). The majority attached decisive weight to the new information concerning the daughter’s health together with the length of the children’s residence in Norway (four years and nine months in the case of the sons). It also had regard to more recent practice of the Board. The permit was granted for a period of one year and could on certain conditions be renewed, constitute a ground for settlement permit and for family reunification. A prerequisite for the permit was that the wife continued to live in Norway. 24. On 7 April 2008 the Immigration Appeals Board carried out a new assessment of the first applicant’s immigration status. It did not alter its decision of 2 March 2007 upholding the Directorate’s decision of 2 November 2006 to order his expulsion, stating inter alia the following reasons. 25. In the Board’s view, the Directorate could in principle have responded more rapidly with regard to the question of expulsion in connection with the applicant’s conviction. The Directorate had had an occasion to bring this matter up as early as in May 2000, when the Ministry of Justice by a letter of 5 May 2000 forwarded a copy of the judgment with a request for assessment of the question of expulsion (see paragraph 12 above). By the fact that counsel for the applicant was sent a copy of the Ministry’s letter, the applicant had been made aware that the offence could constitute a ground for expulsion. The specific procedural rules concerning expulsion of convicted foreign nationals indicated in principle that a decision to expel should be made as soon as possible after conviction with no further right of appeal or after the serving of a sentence had been commenced (section 126 of the Immigration Regulations of 1990). 26. There was nevertheless nothing to prevent that the offence be taken into account at a later date together with any other factors militating in favour of expulsion in a global assessment. In the Board’s view, it could not be decisive for the applicant’s expulsion from the country pursuant to section 29 (c) of the Immigration Act that his 1999 conviction had not been raised until 2006. In this connection, it referred to the fact that at the date of the Directorate’s expulsion decision the applicant had resided unlawfully in Norway for over six years and had in addition worked without a work permit for large parts of this period. In addition, since his conviction in 1999, he had on three occasions been fined for violation of the Road Traffic Act (on the latter two occasions for driving without a driving license, see paragraph 13 above). Whilst these offences were regarded individually and on principle as being relatively minor, they ought to be viewed in connection with the applicant’s previous conviction for bodily harm, in addition to his failure to respond to the order to leave the country as well as his prolonged unlawful residence and employment throughout several years. These offences, when considered as a whole, indicated a lack of respect for Norwegian law and for Norwegian authorities’ decisions. The Board further observed that intentional or negligent violations of the Immigration Act of 1988 of the nature involved in the instant case in principle constituted a criminal offence (section 47(1)(a) of the Immigration Act of 1988). It reiterated that the legislative bill to Parliament (Ot.prp.nr. 75 (2006-2007)) stated inter alia the following with regard to expulsion on the grounds of violations of the Immigration Act (page 289): “Although such violations [i.e. gross violations of the Immigration Act] normally also may lead to criminal liability, in terms of prosecution costs, it would be advantageous if an expulsion order could be made without requiring a legally enforceable criminal judgment.” 27. On the other hand, the Board altered its decision of 2 March 2007 prohibiting the first applicant to return to Norway indefinitely and limited the prohibition to five years. A decisive consideration for this change was that his spouse and children had been granted a residence permit. The Board observed that as a starting point the first applicant’s expulsion would mean that the family would be split. However, the right of the other family members to reside in Norway did not imply any corresponding duty to do so. The whole family originated from Turkey, where the older children had been born and lived during their childhood. Their family life could in principle be secured either by the whole family moving to Turkey or through the visits of the wife and children of the husband in Turkey. His expulsion was of limited duration and at the expiry of the period it would be possible to apply for a residence permit on family reunification ground. Whether such a permit would be granted would depend on future circumstances. However, an expulsion for five years did not imply a permanent splitting of the family. 28. The Board had particular regard to the daughter’s situation, which was followed up and was to be the subject of measures in Norway, and to the scarcity and low quality of public assistance in Turkey to children suffering from handicaps and other types of illnesses affecting their functional capacities, where assistance to children suffering from autism and their parents was provided primarily by private institutions. Bearing in mind especially the daughter’s interests, the Board had understanding for the fact that the family as a whole did not prefer to return to Turkey. 29. In the light of the above, the City Court discontinued, by decisions of 23 April and 20 November 2008, the proceedings in so far as the spouse and the children were concerned. As regards the first applicant, the City Court found for the Immigration Appeals Board and rejected his request for an interlocutory injunction to stay his deportation, by a judgment and a decision of 23 April 2009. 30. On 10 July 2009 the Borgarting High Court (lagmannsrett) rejected the first applicant’s appeal against the City Court’s decision not to grant an interlocutory injunction, as did the Supreme Court on 1 September 2009. 31. On the other hand, the High Court, by a judgment of 1 March 2010, quashed the Immigration Appeals Board’s decision of 7 April 2008 as being unlawful. 32. The High Court had no doubt, nor was it disputed, that the objective conditions set out in section 29(1)(a) and (c) of the 1988 Immigration Act for ordering the first applicant’s deportation had been fulfilled; the only question was whether the measure would be proportionate as required by section 29(2). In this regard, the High Court observed that his conviction in 1999 for having caused physical injury to a third party with a knife was serious, even though there had been mitigating circumstances and the sentence (90 days of which 60 were suspended) had been relatively short. General considerations of crime prevention suggested that one ought to react to violence of this character. 33. However, the expulsion of a convicted person ought to be effected as soon as possible after the criminal judgment had become enforceable. The fact that more than six years had elapsed before concrete measures had been taken to expel him, which could hardly be due to anything else than a lack of coordination on the part of the immigration authorities, weakened the significance of the judgment. 34. On the other hand, the fact that the first applicant for a number of years had stayed and worked unlawfully in Norway was very serious and was not altered by the authorities’ passiveness. The Board had not incorrectly assessed his attachment to Norway and lack of legitimate expectations of being able to stay there. The fact that his spouse and children had been granted a residence permit would not hinder his expulsion, as this would not in the circumstances be a disproportionate measure vis-à-vis him. Another question was whether his four and half year daughter Rojin with her special care needs ought to be viewed as such extraordinary circumstances as could warrant his being able to stay in Norway. 35. On the evidence the High Court found that Rojin’s chronic and very serious degree of child autism and need for follow-up would affect the other family members strongly in the years to come and entail a burden on them far beyond the normal level. Her functional incapacity meant that she would always be dependent on her parents’ resources. Her mother was exhausted and had a marginal level of functioning. It was the father who had activated Rojin on a daily basis and she was particularly attached to him. Should he be deported it was likely that the disturbance to her development would be aggravated and would cause a further burden to the mother, to the brothers and to others who assumed responsibilities for her. 36. The High Court concluded that the first applicant’s expulsion would expose Rojin to an extraordinary burden that would not be justified by general considerations of crime prevention or immigration policy and would constitute a disproportionate measure. In this context the High Court had regard to the importance of the fact that the residence permit to the mother and the children had so far been limited to one year at a time. 37. The High Court upheld the City Court’s findings that the first applicant had not made it sufficiently probable that he upon return to Turkey would risk such persecution as could justify granting him a refugee status or would otherwise face a real danger of loss of life or exposure to inhuman treatment. 38. Finally, the High Court dismissed the claim for a residence- and work permit from the courts. 39. The State appealed to the Supreme Court (Høyesterett) challenging the High Court’s proportionality assessment under section 29(2) of the 1988 Immigration Act. 40. In its judgment of 26 November 2010 (Norsk Retstidende) (Norwegian Supreme Court Law Reports – “Rt.” p. 1430) the Supreme Court observed inter alia that considerable time had elapsed from the rejection of his asylum application in 2000 until the expulsion decision of 2006 and further to the present review of the case by the Supreme Court. Throughout this time, the first applicant had resided in Norway unlawfully, of which he had also been aware. The time factor could thus not be given particular weight in the assessment. Whilst his residence had naturally resulted in strengthening his attachment to Norway, it had equally aggravated his violations of the Immigration Act. This point of view was particularly valid in a case such as the present one, where the applicant had been aware throughout that he was required to leave the country. 41. Nor had the first applicant had any legitimate expectation of being allowed to remain in the country. Also, his criminal conviction meant that an instruction of 31 August 2006 issued by the Ministry of Labour and Social Inclusion to put certain cases in abeyance, notably cases concerning applications for asylum or residence, involving or relating to children, made by persons who had resided in Norway for more than three years, did not apply to the first applicant. 42. The Supreme Court found it established that the first applicant had committed serious violations of the Immigration Act 1988 which of their own clearly constituted a sufficient ground for expulsion. An additional ground were the offences he had committed under Article 229, cf. Article 232, of the Penal Code and, albeit of lesser importance, under the Road Traffic Act. The Immigration Appeals Board had in its decision of 7 April 2008 pointed out that immigration policy considerations then ought to militate strongly in favour of upholding the expulsion order. Also the background – his unlawful stays in other European countries with unsuccessful asylum applications, including once under a false name – was a factor that to some extent went in the same direction. 43. The Supreme Court further observed that the first applicant lacked a legal basis for residing in Norway and therefore ought to leave the country in any event. What the likely outcome could be of an application for residence permit in the current situation could not enter into the consideration of the case. The disputed decision entailed the consequence for him that he would be expelled from the country for a period of five years and he could not apply for a residence- or work permit during this period. Norway’s participation in the Schengen cooperation meant as a rule that an expulsion from Norway also implied a prohibition to enter the entire Schengen Area. In the case of a foreigner, whose unlawful residence had been so extensive and so long and who had been convicted of violence, it could not be said that an expulsion in such circumstances would constitute an extraordinary burden. 44. The interests pertaining to his wife and his two eldest children could hardly speak in favour of making a different assessment than that which applied to the first applicant. They had for many years lived on their own in Turkey. That the first applicant in the event of an expulsion could not come for visit for a period of five years was a normal consequence of expulsion and did not constitute an extraordinary burden. The family life could be maintained by his wife and children travelling to Turkey for shorter or longer periods. 45. The Supreme Court also noted that, whilst the High Court had relied on the consideration that Rojin was suffering from a chronic and serious degree of child autism, the first applicant had submitted a medical statement of 27 October 2010 from which it appeared that her current diagnosis was “unspecified far-reaching developmental disturbance”. The expulsion applied for a period of five years during which the first applicant would not have the opportunity to help his daughter upon visits in the country. As already mentioned, the family contact would instead be maintained through visits in Turkey. Nor in this respect could there be a question of any extraordinary burden. 46. The Supreme Court, having regard the Court’s case-law, notably Darren Omoregie and Others v. Norway (no. 265/07, §§ 57 and 66, 31 July 2008) and the criteria of “exceptional circumstances” and “insurmountable obstacles” relied on there, concluded that the first applicant’s expulsion would not give rise to a violation of Article 8. His expulsion would not constitute a disproportionate measure vis-à-vis the other family members. 47. On 16 July 2011 the first applicant was expelled to Turkey. 48. The second to fifth applicants were granted Norwegian citizenship on 24 January 2012.