CASE OF EJIMSON v. GERMANY
No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. The applicant was born in Nigeria in 1975 and lives in Zölling. 6. In Nigeria, the applicant completed eleven years of schooling and subsequently held various jobs in Lagos. After leaving the country, he lived in Spain from 1994 to 1997, living at first on social security and later working as a day-labourer on several farms. In 1997 he arrived in Germany, where he applied for asylum under a different identity. His application was finally rejected in July 1998. He left Germany for Italy with a German national with whom he had started a relationship. In January 1999 he moved on to Spain, where he worked as a cook and waiter in various restaurants. 7. In October 2000 the applicant re-entered Germany. On 21 October 2000 his daughter, from his above-mentioned relationship, was born. The applicant’s daughter is a German national. 8. In 2000 and 2001 the applicant and the child’s mother lived together. From the outset they had, and continue to have, joint custody. On 11 December 2000, the Authority of the City of Munich issued the applicant a residence permit based on family ties, valid until 1 December 2001. 9. On 18 July 2001 the applicant was arrested on suspicion of having committed an offence under the Narcotics Act (Betäubungsmittelgesetz). 10. On 28 May 2002 the Munich Regional Court sentenced him to eight years’ imprisonment for drug trafficking on a large scale. It observed that the applicant had recruited and instructed the child’s mother as a drugs runner for two separate consignments of cocaine from South America to Europe in summer 1998 and in late 1999/early 2000. It considered, in favour of the applicant, that this was his first criminal conviction, that the first delivery had failed (the drugs did not actually enter the distribution system), and that the applicant had been detained on remand since July 2001. The Regional Court held against the applicant that he had used as drugs runners two young women who were adolescents at the time the offences were committed, and who ran the risk of a lengthy prison sentence in South America; that he had exploited the naivety of his daughter’s mother; that a large amount of cocaine was meant to be smuggled in the first case and that four kilograms of cocaine were smuggled into Europe in the second case; and that the entire undertaking had been handled very professionally. In addition, the Regional Court considered that a conviction for a third case of drug smuggling could not be envisaged for the sole reason that the precise amount of cocaine transported in a suitcase from Peru to Spain could not be determined. 11. The applicant submitted that his daughter and her mother had visited him in prison from 2001 to 2003 and that he had sought a court ruling on contact with his daughter, when the child’s mother discontinued the visits. On 4 July 2006, the applicant and the child’s mother agreed before the Munich Family Court that supervised meetings between him and his daughter would take place as soon as he was released from prison. As of 31 January 2008, the daughter visited the applicant regularly in prison – every four weeks for two hours at a time – in the company of a priest. 12. On 3 July 2009 the applicant was released, after having served his entire sentence. He was placed under supervision of conduct (Führungsaufsicht) until 3 July 2013. 13. After his release, the applicant was granted exceptional leave to remain (Duldung) under Section 60a of the Residence Act – according to the information available to the Court this was granted most recently in January 2017 and would last until July 2017. It meant that enforcement of the expulsion order was temporarily suspended, being impossible to execute as the applicant did not have a valid passport (see paragraphs 28, 29 and 3642 below). He began occupational re-training as a management assistant in marketing communication in April 2010, which he successfully completed in June 2012, but was not allowed to engage in gainful employment since his release. 14. The applicant has not lived with his daughter and her mother since his release. Since 2012 they have been living in different cities, with distances between their homes varying between thirty and seventy kilometres and the travelling time varying between forty minutes and one hour. The applicant sees his daughter on a regular basis and maintains close contact with her. It is not disputed between the parties that she spends every other weekend with him. According to a social worker’s statement, he has become an important contact person for her. Both the applicant’s daughter and her mother explicitly wish the applicant’s contact with his child to continue. 15. Since his release, the applicant was convicted of three offences by the Munich District Court, of fraud in 2011 and of theft in 2015 and 2016. He was sentenced to twenty, thirty and ninety day-fines, respectively. By being present on German territory without having a passport, he committed an ongoing offence under the Residence Act. Criminal proceedings in this connection were discontinued by the public prosecutor in November 2013 because the applicant’s guilt was considered to be of a minor nature and because prosecution was not in the public interest. The matter was referred to the administrative authority for treatment as an administrative offence. 16. On 21 March 2003 the Authority of the City of Munich refused to renew the applicant’s residence permit and ordered his expulsion. It held that the applicant’s expulsion was mandatory pursuant to Section 47 § 1 of the Aliens Act (Ausländergesetz; since 2004: Section 53 of the Residence Act) which foresaw the mandatory expulsion of an alien if he or she were sentenced to either at least three years’ imprisonment for a criminal offence, or to any period of imprisonment (not on probation) for an offence under the Narcotics Act. The authority examined whether the applicant enjoyed special protection against expulsion because he was the father of a German child. It found that the applicant had lived with his daughter only for a short time prior to his imprisonment, she had thus experienced separation from the applicant and that, in the light of the applicant’s very serious criminal offences, the State’s interest in removing the applicant prevailed over his interest in enjoying family life with his daughter. He could remain in contact with her by letter or telephone and could apply for permission to enter Germany for specific periods of time (Betretenserlaubnis). It considered that the applicant’s expulsion was in conformity with Article 8 § 2 of the Convention. This decision, which also contained an unlimited re-entry ban and notice that he would be deported to Nigeria if he did not leave Germany voluntarily within four weeks after being released from prison, became final on 26 August 2003. 17. On 15 November 2006, after the applicant had served more than two thirds of his prison sentence, the authorities envisaged his expulsion as of 1 November 2007. 18. On 3 December 2007 the applicant introduced another asylum application (see paragraph 6 above). On 8 February 2008, the Federal Office for Migration and Refugees dismissed his application as manifestly illfounded under Section 30 § 3 of the Asylum Procedure Act (see paragraph 33 below) and, finding that there were no impediments to his return to his country of origin, ordered his expulsion. The decision again contained notice that he would be deported to Nigeria if he did not leave Germany voluntarily within one week after the decision became final. On 6 March 2008, the Munich Administrative Court granted suspensive effect to the applicant’s appeal in the asylum procedure. On 8 September 2009 it dismissed his appeal in the main procedure, also finding, inter alia, that the applicant’s ties to his daughter could not be taken into account in the asylum procedure. This decision became final on 1 December 2009. 19. On 10 September 2009 the applicant applied for a residence permit based on family ties. 20. On 9 February 2010 the Authority of the City of Munich rejected his application, holding that there was a final expulsion decision (of 21 March 2003) against the applicant, which precluded granting him a residence permit. No impediments arose from the fact that his daughter was a German national. The applicant could maintain contact with her through letters, telephone calls and occasional visits. His daughter was accustomed to a long-distance relationship with him. He was responsible for the renewed separation and the purpose of the expulsion order had not yet been achieved. At the same time, it reduced the re-entry ban to five years and ruled that the applicant could, starting one year after his actual expulsion, apply for permission to enter Germany twice a year for a total of four weeks. 21. On 14 April 2010 the Munich Administrative Court quashed that decision and ordered the administrative authority to issue a residence permit. It noted that the applicant met the requirements for a residence permit based on family ties, but that granting such a permit was precluded by the final expulsion decision. However, the applicant was entitled to a residence permit on humanitarian grounds in accordance with Section 25 § 5 of the Residence Act, with the margin of appreciation inherent in this provision being reduced to zero. Section 11 § 1 of the Residence Act was not applicable to this provision and the applicant’s departure was impossible in law due to his family life with his daughter, which was protected, inter alia, by Article 8 of the Convention. 22. The Administrative Court found that, despite the serious nature of the criminal offences the applicant had committed, there was no public interest that outweighed the child’s best interests and the applicant’s interest in having contact with his daughter. The relationship between the applicant and his daughter had the quality of a “family” and their ties were of benefit to the child. It considered that they could only live together in Germany, as the child could not be expected to relocate to Nigeria; that the applicant had committed the criminal offences prior to the birth of his daughter; that he had made considerable efforts as a father, as was also evidenced by his choice to remain imprisoned in Germany and to have supervised meetings with his daughter as of January 2008 rather than having his sentence suspended and being expelled as of 1 November 2007; that the latter event marked a turning point, which occurred after the expulsion order had become final in 2003 and which had not been taken into account by the administrative authorities; that the child had already been deprived of a relationship with her father for many years during his imprisonment; that the material assessment with a view to the applicant’s expulsion had been conducted on 21 March 2003, years before the developments in the fatherdaughter relationship and the moment the expulsion order would be enforced; and that the enforcement of the expulsion order in connection with a re-entry ban would deprive the child of the possibility of a normal father-daughter relationship for the remainder of her childhood. 23. On 27 June 2011 the Bavarian Administrative Court of Appeal overturned that judgment and denied the applicant’s right to a residence permit. It considered that his asylum application had been rejected as manifestly ill-founded under Section 30 § 3 of the Asylum Procedure Act and that, therefore, in accordance with Section 10 § 3, second sentence, of the Residence Act, he could not be granted a residence permit prior to leaving Germany (see paragraph 33 below). The exception to this rule, foreseen in the third sentence of this paragraph, was not applicable because the applicant did not have a claim to a residence permit within the meaning of that provision (see paragraph 34 below). 24. First, a claim to a residence permit based on family ties under Sections 27 et seq. of the Residence Act was precluded by Section 11 of the Residence Act due to the final expulsion order of 21 March 2003 (see paragraph 35 below). Second, a claim to a residence permit on humanitarian grounds under Section 25 § 5 of the Residence Act was proscribed because the applicant did not have a valid passport, which was a general requirement for the granting of a residence permit (see paragraph 32 below). As the decision to waive this requirement in cases concerning residence permits on humanitarian grounds was a discretionary one, the applicant did not have a claim to a residence permit within the meaning of Section 10 § 3, third sentence, of the Residence Act, not even if the margin of appreciation were reduced to zero (see paragraph 34 below). Third, the court found that the applicant could not base a claim to a residence permit on impediments to his return to his country of origin either, referring to the outcome of the asylum proceedings in 2008 and 2009 (see paragraph 18 above). The Court of Appeal concluded that, under these circumstances, it was not decisive whether the ties between the applicant and his daughter were such that the requirements for a residence permit on humanitarian grounds under Section 25 § 5 of the Residence Act were met, if the applicant’s asylum application had not been dismissed, and refrained from elaborating on this aspect. 25. On 12 September 2011 the applicant lodged an action to be granted leave to appeal on points of law, arguing that his case raised a matter of fundamental importance. He submitted that he should be granted a residence permit under Section 25 § 5 of the Residence Act because, as the father of a minor child of German nationality for whom he had joint custody, he did, in principle, have a claim to a residence permit based on family ties. The purpose of Section 10 § 3 of the Residence Act was to sanction abuse of the asylum procedure, but an abusive asylum application should not bear negative consequences where the foreigner had a claim, within the meaning of that provision, to a residence permit. In that regard, it should be decisive whether or not the substantive requirements of the respective provision for a residence permit were met, as in his case with regard to the permit based on family ties, and that the reason for the claim not being realised, in his case the final expulsion order against him, should not be relevant. 26. On 16 February 2012 the Federal Administrative Court rejected the applicant’s action. It noted that, according to the case-law of the domestic courts, the exception foreseen in Section 10 § 3, third sentence, of the Residence Act only applied to claims that followed directly from legislative provisions and in respect of which all requirements, general and specific, were met. A residence permit based on family ties was precluded because of the final expulsion order against the applicant. Under these circumstances, granting a residence permit on humanitarian grounds was to be considered. However, as the applicant did not have a valid passport, which was a general requirement for the granting of a residence permit from which derogations were, in cases concerning Section 25 § 5 of the Residence Act, possible only by way of a discretionary decision, the exception foreseen in Section 10 § 3, third sentence, of the Residence Act was not applicable. The decision was served on the applicant on 22 February 2012. 27. On 22 March 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging that the decisions of the Administrative Court of Appeal and of the Federal Administrative Court violated his right to respect for his family life with his daughter. On 18 July 2012 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint without providing reasons (no. 2 BvR 657/12). 28. After the Authority of the City of Munich, on 12 June 2012, had ordered the applicant to present himself to the Embassy of Nigeria in Germany so that a passport for the upcoming expulsion could be issued, the applicant refused to do so and filed an action against this order with the Munich Administrative Court. During the court hearing on 1 August 2012, the applicant and the immigration authorities agreed to the following: “- The effect of the re-entry ban will be limited to two and a half years after leaving Germany. - The immigration authorities will give their consent for a visa to enter Germany based on family reunion. If the applicant by then still has joint custody with the child’s mother, a residence permit on the grounds of family ties will be issued. If the applicant no longer has joint custody for his daughter, the immigration authority will use its discretion regarding the issue of a residence permit in favour of the applicant. - All of this applies only if the applicant can show that he has not committed further criminal offences and if no other reasons for his expulsion emerge. - A timelimit for leaving the country is set at 1 November 2012.” In the light of this agreement, the applicant withdrew his action, and the proceedings before the Munich Administrative Court were discontinued. 29. On 25 September 2012 the Embassy of Nigeria in Germany declared that it would not issue a passport to the applicant as long as the proceedings before this Court were pending. On 6 November 2012 the applicant informed the immigration authorities that he would not leave Germany, contrary to his initial plans and to his declaration before the Munich Administrative Court. As a result, the agreement concluded before that court became void.