HUSSAIN AND C. v. NORWAY
Inadmissible
The first applicant, Mr Shanawar Hussain, and the second applicant, his daughter C., are respectively Pakistani and Norwegian nationals born in 1960 and 1991 and living in Lahore, Pakistan, and Lørenskog, Norway. They are represented before the Court by Mr Knut Rognlien, a lawyer practising in Oslo. The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows. The first applicant arrived in Norway in 1976 and was granted a temporary residence permit for education purposes. In 1981 he was granted a residence permit for an indefinite duration. According to the first applicant he had met the second applicant’s mother at the end of 1983. They had established a relationship as from the autumn of 1984, had got engaged in 1985 and had planned to marry in July 1987, but this did not materialise as Mr Hussain was detained on remand in May 1987 on suspicion of drug offences. On 19 February 1988 the Eidsivating High Court (lagmannsrett) convicted the first applicant of the possession and attempted sale of approximately 1 kilo of heroin. It deemed the heroin to have been of a particularly high degree of purity and noted that one user had died. While the first applicant's replies to the charges had said little more than the bare minimum, the High Court did not find it established from where he had received the drugs or what role he had played in the importation and acquisition of the drugs. However, although he had submitted that he had been put under strong pressures and had reluctantly received the heroin in order to store it, the High Court did not find that his role had been as modest as he had claimed. He had failed to explain why, in defiance of what he described as an order, he decided to sell a large part of the drug to one of his co-accused and to keep another part. It was further noted that in connection with a delivery of heroin by the first applicant, one of his co-accused in the trial had come to the agreed place with one other co-accused as a bodyguard. In view of the particularly serious nature of the offence, the High Court sentenced the first applicant to 10 years' imprisonment. On 4 January 1989 the Oslo Police decided to expel the first applicant. On appeal, the latter decision was upheld by the Aliens Directorate (Utlenningsdirektoratet) on 5 May 1989. He subsequently requested that the expulsion order be altered, but the Aliens Directorate and the Ministry of Justice, in decisions dated respectively 16 December 1993 and 12 January 1994, refused the request. The first applicant and his wife were married at Ullersmo prison in June 1989, i.e. after the applicant's conviction and sentence to 10 years' imprisonment and the decision to expel him from Norway. Two daughters were born to them, the second applicant, born in 1991, and S., born in August 1995. While serving his prison sentence the first applicant had extensive contact with his wife and the second applicant. Following his release in January 1994, the first applicant lived with his family for 1 year until 12 January 1995, when he was expelled from Norway to Pakistan. His wife and the second applicant accompanied him to Pakistan, but returned after 1 month. The first applicant was twice granted a visa to enter Norway in order to attend the court proceedings, but was denied a visa in connection with S.'s birth. During the winter of 1995 to 1996, his wife and two children lived with him for 2 months in Pakistan. A medical certificate of 22 October 1996 issued by a paediatrician states that, since the second applicant was a baby, she had suffered from atopical eczema causing her nuisance particularly during spring, summer and autumn, and requiring that her entire body be treated with moistening cream every day and with oil baths. She was allergic to milk and was taking substitute milk products. She was also allergic to eggs and pollen. She had asthma and had experienced asthma fits serious enough nearly to require hospitalisation. According to certain statements dated 23 December 1994 and 23 February 1996 by personnel in charge of the second applicant's kindergarten, the first applicant had been present and actively took part in her care; she had said that she missed her father and there was a clear risk that her separation from him would have negative psychological consequences for her. On 8 November 1994 the City Court (byrett) rejected the first applicant's appeal against the Ministry's above-mentioned decision of 12 January 1994. He then appealed to the High Court, which, on 14 August 1995, upheld the City Court's judgment. He further appealed to the Supreme Court (Høyesterett) which, in a judgment of 26 November 1996, by 3 votes to 2, upheld the High Court's conclusion on the merits but overturned the lower courts' decisions ordering him to pay legal costs. In its judgment the Supreme Court considered, inter alia, whether the expulsion would be consistent with Norway's obligations under Article 8 of the Convention, as interpreted and applied in a number of cases by the Convention institutions, in particular whether the measure was necessary in a democratic society, which the first applicant disputed. Mr Justice Dolva stated on behalf of the majority: “The ground for the expulsion is the very serious drug offence of which Mr Hussain has been found guilty. ... Mr Hussain was convicted under Article 162 (3), cf. (1), of the Penal Code for serious narcotics offences relating to a very large quantity of drugs. The maximum penalty was 15 years' imprisonment, while the minimum was 3 years. It was thus a very serious offence of which he was found guilty and the penalty imposed was 10 years' imprisonment, of which 6 years and 8 months had been served. Mr Hussain was found guilty of the possession and attempted sale in respect of about 1 kilo of heroin of a high degree of purity. It is stated in the High Court’s judgment that each gram of the product could be divided into 30 to 40 doses; so that the substance posed a very great danger of being commercialised. ... … In the present case, there is no information to the effect that Mr Hussain has been involved in other criminal offences. This is relevant to the assessment but is overshadowed by the seriousness of the offence of which he has been found guilty. I now turn to the arguments submitted against expulsion. Even though it has been conceded that Mr Hussain’s own interests would not on their own suffice to make the expulsion incompatible with the Convention, it must be relevant that he has resided in Norway from the age of 16 and has received an education and worked here. Until his detention on remand he had lived here for 11 years. It may be mentioned that it was only after he was detained that he applied for Norwegian citizenship and that his application was refused. He has maintained links with his family in Pakistan during his visits to the country in 1979, 1982, 1986 and 1987. … The circumstances, which most strongly militate against expulsion, are those related to his family life with his spouse and two daughters. The marriage was concluded while Mr Hussain was serving his prison sentence and after the police had ordered the expulsion. Nevertheless, there is agreement that family life was established before he was detained on remand. The couple’s eldest child, [the second applicant], who is now 5½ years old, was born while her father was serving his sentence but, according to the information available, she has had contacts with him during visits and home-leave and the family lived together for 1 year from the applicant’s release until his expulsion was effected. As already mentioned, [the second applicant] has considerable health problems related to asthma and allergies. Like the High Court, I find it established that the maintenance of the expulsion order would split the family since, because of [the second applicant], it is not expected that the mother and the daughters will settle in Pakistan. The possibilities of visits will be limited - in Pakistan, because of [the second applicant’s] health - and in Norway, because Mr Hussain's expulsion is made permanent. It is evident that this will constitute a considerable burden to them all, in particular to [the mother] who will be alone in assuming the care of the daughters, one of whom is in particular need of care. It has been specifically claimed that in Pakistan it will not be possible to bring up the daughters in accordance with the mother’s Christian faith. Reference is made to Article 9 of the Convention, Article 2 of Protocol No. 1 and Article 18 §§ 1 and 2 of the International Covenant on Civil and Political Rights. I will not consider those matters more closely since I take it that it is not expected that the mother and the daughters will move to Pakistan. ... The appellant party has referred, inter alia, to the report recently given by the Commission in the case of Mehemi v. France and has submitted that to a high degree it supports his views. ... As regards this decision, I should like to point out that second generation immigrants often raise particular issues, whereas under Norwegian law expulsion may not be effected with respect to persons who are born in Norway and have lived there continuously. Mr Hussain was 16 years old when he came here for educational purposes and has maintained contacts with Pakistan. The way I interpret the existing case-law is that in cases of such serious narcotics offences as this, it falls within the State’s margin of appreciation to expel foreign nationals, even though it would seriously affect the person expelled and his family. … In the final assessment I cannot see that in the case under consideration the authorities’ decision to expel constitutes a disproportionate measure against the scourge of drug trafficking. This was clear in 1989 when the expulsion was decided by the police and the Aliens Directorate. The interest in protecting family life has nevertheless been given greater weight in the subsequent refusals to alter the expulsion order, the last refusal being issued by the Ministry of Justice on 12 January 1994. The matter was then considered on the basis of the relevant circumstances obtaining at that time. Nevertheless, having regard to the serious drug offence in respect of which Mr Hussain has been found guilty, I consider that the interest of protecting family life does not suggest that expulsion would be disproportionate and incompatible with the Convention, despite the considerable burden it entails. It is, however, a very difficult balancing of interest with which we are faced here.” In his dissenting opinion, Mr Justice Lund concluded on behalf of the minority that the expulsion order must be declared unlawful (ugyldig) as being disproportionate. His reasoning may be summarised as follows. Although the seriousness of the offence was a consideration that weighed heavily and the interests of Mr Hussain could not on their own justify declaring the expulsion order unlawful, the consequences for the family ought to be decisive in this case. The situation for the first applicant's wife and the consequences for their marriage were almost identical to those described in paragraphs 78 and 79 of the Beldjoudi v. France judgment of 26 March 1992 (Series A no. 234-A). In the present case the interests of minor children were also at stake. Because of the second applicant's illness it was excluded that the wife would move to Pakistan. There were great difficulties involved in maintaining family life by means of relatively short, occasional visits by the family to Pakistan. While it was very likely that the spouses sooner or later would be forced to divorce, the interest of avoiding divorce weighed more heavily when, as here, they had children. Moreover, there was obviously a greater risk than normal that the contacts between the father and the children would be damaged. A child in as much need of care as the second applicant would have a particular need for maintaining close contact with both parents. The mother, who alone assumed the responsibility for the two daughters, had a strong need for the father’s help in caring for the children.