MBENGEH v. FINLAND
Inadmissible
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Ousman Mbengeh, is a Gambian national who was born in 1971 and lived, at the time of lodging his application with the Court, in Helsinki. He is represented before the Court by Ms K. Heimonen, a lawyer practising in Espoo. and as they appear from the documents on the file, may be summarised as follows. The applicant arrived in Finland on an unspecified date. On 25 January 1995 he married a Finnish citizen, who gave birth to their son in 1996. The three of them lived together until the applicant’s deportation to his country of origin, Gambia, in 2006. In 1995 the applicant had obtained a temporary residence permit based on the marriage. In 1998 he was granted a permanent residence permit. On 25 April 2003 the Helsinki District Court (käräjäoikeus, tingsrätten) convicted the applicant of an aggravated narcotics offence for having dealt in heroin during the period from May 2002 to January 2003 and sentenced him to six years’ imprisonment. The conviction was upheld by the Helsinki Court of Appeal (hovioikeus, hovrätten) on 14 January 2004 although the sentence was reduced to four years’ imprisonment. On 27 January 2006 the Supreme Court (korkein oikeus, högsta domstolen) upheld the conviction and sentence. On 10 November 2004 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) decided to deport the applicant owing to his criminal activity and issued a five-year refusal of entry to the Schengen area. It considered that, through his criminal activity, he had endangered public order and safety. The Directorate of Immigration noted that, according to practice, aggravated offences usually resulted in the issuing of a refusal of entry which would normally remain in force until further notice. However, having regard to the applicant’s family ties to Finland, it considered that a refusal of entry for five years was appropriate. On 8 August 2005 the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) quashed the decision because of the applicant’s long stay in Finland and his family ties. The Directorate of Immigration appealed. On 20 October 2006 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), finding that the grounds for deportation were weightier than the applicant’s family ties and his eleven-year stay in Finland, quashed the Administrative Court’s decision and upheld the deportation order. The case turned on the fact that the applicant had been dealing in very dangerous drugs for monetary gain and in the circumstances, the deportation and refusal of entry would not be in breach of Article 8 of the Convention or Article 3 of the United Nations Convention on the Rights of the Child (1989; yleissopimus lapsen oikeuksista, konventionen om barnens rättigheter; SopS 60/1991). On 7 December 2006 the applicant was deported to his country of origin. Section 40(1) of the then Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 378/1991) provided, inter alia, that an alien convicted of a criminal offence which carried a sentence of one year or more or an alien who repeatedly committed offences could be deported. Section 41 provided that when deciding on deportation regard must be had to all the relevant facts and the circumstances as a whole such as the duration of the stay, the relationship between a child and its parent and family and other ties to Finland. The nature of the offence within the meaning of section 40(1) was also relevant. Under section 43 a refusal of entry could be issued for a maximum period of five years or until further notice.