CASE OF PALANCI v. SWITZERLAND
No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Turkey)
András Sajó;Guido Raimondi;Helen Keller;Paul Lemmens;Peer Lorenzen;Robert Spano
7. The applicant, Mr Erol Palanci, is a Turkish national, who was born in 1971 and lives in Basel, Canton of Basel-Stadt (Basle Urban). 8. In 1989 he entered Switzerland for the first time and applied for asylum. He lived there, working in the gastronomic sector, until 1993, when his asylum request was dismissed. On 19 November 1993 he left Switzerland for Germany. On 10 February 1994 he married his current wife, a Turkish national with a residence permit for Switzerland, in Germany. 9. Because his wife had a residence permit for Switzerland, the applicant was able to re-enter the country on 15 July 1994, and he was given a residence permit on 28 July 1994. Three daughters were born to the couple in Switzerland in 1995, 1997 and 2000. Additionally, the wife’s eldest daughter from her first marriage, born in 1985, was also living with the couple. 10. In 1995 a criminal charge was brought against the applicant because he had been working without the requisite work permit. Furthermore, in 1997, having falsified his wife’s signature on an official document, he was warned for the first time by the Directorate for Residence Services of the Department for Security of the Canton of Basel-Stadt (Sicherheitsdepartement des Kantons Basel-Stadt, Dienste Aufenthalte - hereinafter “the cantonal immigration authorities”) that he would have to expect immigration measures to be taken if he did not improve his behaviour. 11. In August 1999 the applicant and his wife separated. The children remained with the applicant’s wife and he was ordered to pay maintenance by the Cantonal Civil Court of the Canton of Basel-Stadt. 12. On 1 December 1999 the applicant was sentenced by the Criminal Court of Basel-Stadt to a suspended custodial sentence of three months for multiple bodily assaults on his wife, in part committed with a dangerous object. 13. In view of his conviction, his considerable accumulation of debts and his dependence on social welfare, the cantonal immigration authorities issued a further warning to the applicant on 22 December 1999. 14. In March 2001 his wife filed for divorce. In September 2001 the cantonal immigration authorities again warned the applicant, since his debts had grown further and his entire family was living on social welfare. 15. Despite those warnings, the applicant’s debts grew further. In May 2002 they amounted to approximately 177,850 Swiss francs (CHF) (approximately 145,609 euros (EUR)). Additionally, he had failed to comply with his duty to pay maintenance for his family in the amount of CHF 46,150 (approximately EUR 37,783). In August 2002 the cantonal immigration authorities decided to extend the applicant’s residence permit for another six months. However, he was firmly advised to take steps to improve his financial situation. 16. In November 2002 the applicant’s wife withdrew her divorce petition. However, she did not wish to seek a reconciliation and the applicant was obliged to continue paying maintenance. 17. In March 2003 the applicant was sentenced to sixty days’ imprisonment for wilful neglect of his obligation to pay maintenance. 18. In December 2003 the cantonal immigration authorities warned the applicant for the last time that he must expect implementation of the most serious immigration measures if his situation did not improve and his debts grew further. They gave him until June 2004 to prove that his financial and professional situation had stabilised and that he had complied with his obligation to pay maintenance. 19. In March 2004 the applicant’s wife filed for divorce for the second time. She also brought another criminal charge against him for acts of aggression and threatening behaviour. 20. In August 2004 the applicant’s wife withdrew her criminal complaint against the applicant for domestic violence. 21. By letter dated 11 October 2004 the immigration authorities informed the applicant of their intention to expel him from Swiss territory and granted him a period of grace in which to make his submissions. 22. On 22 October 2004 the applicant’s wife withdrew her divorce action and from 25 October 2004 onwards the couple lived together again. 23. On 7 February 2005 the cantonal immigration authorities decided that the applicant’s residence permit would not be extended and that he had to leave Switzerland for an indeterminate period of time. They held that over the preceding years, owing to the applicant’s continuously accumulating debts and his failure to pay maintenance, his family had been dependent to a considerable degree on social welfare, and he had not proved that he was capable of observing public order and safety in Switzerland. In accordance with section 10 § 1 (b) and (d) of the Federal Act on the Temporary and Permanent Residence of Foreigners (hereinafter “the Foreigners’ Residence Act” - see paragraph 29 below) and section 16 of its Implementing Ordinance (see paragraph 30 below), he could therefore be expelled. They reasoned that since 1994, when the applicant had entered Switzerland for the second time, he had repeatedly been convicted of offences. Furthermore, despite the immigration authorities’ repeated warnings, his financial situation was serious and had continuously deteriorated. As at the date of the decision, his debts amounted to about CHF 352,890 (approximately EUR 288,918) and the outstanding maintenance payments to CHF 74,710 (EUR 61,166). In addition, from June 2004, he had worked as an associate of a company in the gastronomic sector without having previously applied for the necessary work permit. Although he had never paid maintenance or complied with the debt repayment agreements, he had invested capital of CHF 20,000 (approximately EUR 16,374) in that company. The cantonal immigration authorities therefore concluded that the applicant had not complied with the conditions previously set out by them for renewal of his residence permit. Furthermore, the fact that the applicant had resumed matrimonial life with his wife on 25 October 2004 did not alter those findings, since his wife had already filed for divorce twice and there had been incidents of domestic violence in the past. The applicant had, moreover, registered his residence at the family home only after he had been informed by the immigration authorities in October 2004 of their intention to expel him. However, he had spent many months between September 2004 and March 2005 in Turkey and it could therefore hardly be assumed that he had actually re-established family life. The applicant’s return to his country of origin – Turkey – was also feasible, because he had spent most of his life there and maintained close social and family ties with that country, as evidenced by his regular visits there. Additionally, even though he claimed that his relationship with his children was close, he had not paid maintenance for them since the separation from his wife. Lastly, the children were not prevented from visiting him in Turkey and the contact could be maintained at a distance. The applicant’s expulsion was therefore proportionate and he was required to leave Switzerland by 7 May 2005. 24. On 14 September 2005 the applicant was sentenced for the second time to a suspended custodial sentence of forty-five days for wilful neglect of his obligation to pay maintenance. 25. The applicant lodged an appeal against the decision of the cantonal immigration authorities with the director of the Department for Security of the Canton of Basel-Stadt (Vorsteher des Sicherheitsdepartement des Kantons Basel-Stadt – hereinafter “the director”), who dismissed the appeal on 16 January 2006. The director established that the applicant had met the criteria for expulsion under domestic law in several respects. To begin with, the applicant had been logged in the criminal register nineteen times since 1995. While the majority of the sentences had been for minor offences – mainly against the Road Traffic Act – three of them were serious convictions. These were: one for domestic violence in 1999, resulting in a suspended custodial sentence of three months’ imprisonment, and two others for wilful negligence of his obligation to pay maintenance, warranting sixty days’ imprisonment in 2003 and a suspended custodial sentence of forty-five days in 2005. Since the applicant had thus been found guilty of imprisonable offences (see paragraph 31 below), he fulfilled the criterion for expulsion as provided in section 10 § 1 (a) of the Foreigners’ Residence Act (see paragraph 29 below). Secondly, despite repeated warnings by the cantonal immigration authorities, the applicant’s financial situation had continuously deteriorated. In this regard the director held that, despite having had several jobs in the gastronomic sector, the applicant had repeatedly tried to start his own business and had frivolously invested money in projects with poor prospects. His debts were therefore self-imposed and, from an overall perspective, he had, continuously throughout the years, failed to show any willingness to observe public order and to integrate into the Swiss system. He therefore additionally fulfilled the condition for expulsion according to section 10 § 1 (b) of the Foreigners’ Residence Act (see paragraph 29 below) and section 16 of its Implementing Ordinance (see paragraph 30 below). By contrast, despite still not having paid back to the State all the maintenance received for his family, after 30 September 2004 the applicant’s family had no longer been dependent on social welfare. Therefore, section 10 § 1 (d) of the Foreigners’ Residence Act (see paragraph 29 below) no longer applied to the applicant. With regard to Article 8 of the Convention, the director further established that the applicant’s expulsion was a proportionate interference with his right to respect for family life. The applicant had maintained close ties with his home country, which he had visited on many occasions. The applicant’s wife had lived in her home country until the age of nineteen and she had visited Turkey, together with the children, on many occasions. Moreover, she had also accumulated debts amounting to CHF 134,830 (approximately EUR 110,388) and was receiving an invalidity pension. Lastly, the children were still relatively young (the oldest daughter being ten years old at the time of the decision) and they would therefore not encounter any serious difficulties if they returned to Turkey with the applicant. The public interest in expelling the applicant to Turkey therefore outweighed his personal interest in remaining in Switzerland. 26. On 21 March 2007 the Administrative Court of the Canton of Basel-Stadt (Appellationsgericht des Kantons Basel-Stadt – hereinafter “the Administrative Court”) dismissed the applicant’s appeal, a decision that was upheld by the Federal Supreme Court (hereinafter “the FSC”) on 24 October 2007. With particular regard to the applicant’s rights under Article 8 of the Convention, both courts held that, considered as a whole, his expulsion was proportionate. Even though the applicant had been living together with his wife again since October 2004, his matrimonial situation had not proved to be very stable in the past. Furthermore, despite having maintained a close relationship with his children, for many years ‒ until September 2004 ‒ he had completely neglected his obligation to pay them maintenance. Moreover, it would be possible to maintain a relationship with them at a distance without serious difficulty. The courts also found that the family would not encounter any major obstacles if they returned to Turkey with the applicant. The children were still at an age where they could easily adapt to a new environment and the Turkish language was their mother tongue. Furthermore, his wife had not proved to be particularly well integrated in Switzerland and was receiving an invalidity pension. The expulsion order against the applicant was therefore upheld. 27. The cantonal immigration authorities gave the applicant a deadline of 22 January 2008 for leaving Switzerland. The applicant left Switzerland alone. 28. In letters of 7 June 2013 and 28 June 2013, the applicant’s representative informed the Court that the applicant had been issued with a residence permit for Switzerland on 10 February 2013. He nevertheless wanted to maintain his application because between 2008 and 2013 he had been obliged to live in Turkey while his wife and children had remained in Switzerland. During this period he had not been able to support them financially but had visited them, at least once, in Switzerland. 29. Section 10 of the Federal Act on the Temporary and Permanent Residence of Foreigners of 16 March 1931, as in force at the material time, read as follows: “1 A foreign national can be expelled from Switzerland or one of its cantons only if: (a) he or she has been convicted by a judicial authority of a serious punishable offence [Verbrechen] or a less serious punishable offence [Vergehen]; (b) his or her behaviour, in its entirety, or his actions demonstrate an unwillingness to adapt to the order established in the country that offers him hospitality or he is not capable of so adapting; ... (d) if he or she, or a person he or she has to care for, is reliant on social welfare continuously and to a considerable degree... ” 30. Section 16 of the Implementing Ordinance to the Federal Act on the Temporary and Permanent Residence of Foreigners of 1 March 1949, as in force at the material time, read as follows: “ ... 2 An expulsion pursuant to section 10 § 1 (b) of the Foreign Nationals Act is in particular justified where there are serious and repeated infringements of norms or official orders; ... continuously malicious or dissolute non-observance of obligations under public or private law; other continued dissoluteness or work-shy behaviour ...” 31. Section 9 of the Swiss Criminal Code of 21 December 1937, as in force at the material time, read as follows: “1 Serious punishable offences [Verbrechen] are offences for which the custodial sentence is imprisonment in a penal institution [Zuchthaus]. 2 Less serious punishable offences [Vergehen] are offences for which the most severe sentence is detention in prison [Gefängnis]. “