AS TO THE ADMISSIBILITY OF

                      Application No. 31049/96

                      by Pedro and Marielle NAKUNZI

                      against Sweden

      The European Commission of Human Rights (Second Chamber) sitting

in private on 16 September 1997, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 A. ARABADJIEV

           Ms.   M.-T. SCHOEPFER, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 4 March 1996 by

Pedro and Marielle NAKUNZI against Sweden and registered on 18 April

1996 under file No. 31049/96;

      Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having regard to the observations submitted by the respondent

Government on 15 May 1997 and the observations in reply submitted by

the applicants on 8 July 1997;

      Having deliberated;

      Decides as follows:

THE FACTS

      The first applicant is an Angolan citizen born in 1962.  The

second applicant is a Swedish citizen born in 1966.  They reside in

Sundbyberg, Sweden.  Before the Commission they are represented by

Mrs. Madelaine Seidlitz, a lawyer practising in Stockholm.

      The facts of the case, as submitted by the applicants, may be

summarised as follows.

      The first applicant came to Sweden and applied for asylum on

6 March 1991.  In April 1991 he met the second applicant.  They moved

in with each other in July 1991 and later married.  On 2 May 1992 the

second applicant gave birth to the their first daughter, E.

      After the National Immigration Board (Statens invandrarverk) had

rejected the first applicant's application, the Aliens Appeals Board

(Utlänningsnämnden), by decision of 2 December 1992, granted him a

temporary residence permit on account of his family ties.  The permit

was later prolonged, eventually until 14 August 1994.

      On 17 November 1993 the District Court (tingsrätten) of Solna

found the first applicant guilty of fraudulent use of a document

(missbruk av urkund) and sentenced him to sixty day fines.

      On 21 July 1994 the District Court of Stockholm convicted the

first applicant on several counts of aggravated fraud and attempted

aggravated fraud by means of forgery of documents (grovt bedrägeri och

försök till grovt bedrägeri medelst urkundsförfalskning).  The court

found that, between November 1992 and February 1993, the first

applicant in collaboration with others had used false bank giro forms

to induce foreign banks to transfer large amounts of money from

accounts in the respective banks to accounts in Swedish banks which had

been opened by the perpetrators under false names.  By means of false

documents and signatures, they had later withdrawn or tried to withdraw

the amounts from the Swedish accounts.  Furthermore, using forged

foreign bank cheques, they had induced or attempted to induce Swedish

banks to cash the cheques and deposit the amounts on their accounts.

The amounts involved in the crimes in which the first applicant was

implicated totalled approximately 1.5 million Swedish crowns (SEK).

The first applicant was sentenced to four years' imprisonment.  The

public prosecutor did not request that he be expelled, nor did the

court raise the issue on its own motion.

      The applicants' second daughter, C, was born on 13 October 1994.

      On 2 January 1995 the Svea Court of Appeal (Svea hovrätt) upheld

the District Court's judgment of 21 July 1994.  The appellate court's

judgment later gained legal force.

      On 7 February 1995 the National Immigration Board rejected the

first applicant's application for a permanent residence permit or a

prolongation of his temporary permit and ordered his deportation.  In

view of the above convictions, the Board considered that he was not

entitled to a residence permit despite his family ties.

      The first applicant started to serve his prison sentence at

Skänninge Prison on 26 August 1995.

      The first applicant appealed against the National Immigration

Board's decision to the Aliens Appeals Board.  He stated that he had

not engaged in any criminal activities after February 1993 and that he

had never committed any acts of violence.  He also pointed out that he

had not been detained during the criminal proceedings and that the

courts apparently had not found any reason to order his deportation.

He also referred to his children's need of their father and claimed

that, due to the general situation in Angola and the youngest

daughter's allergy to certain foods, it was not possible for the other

family members to follow him to Angola.  Invoking the judgment of the

European Court of Human Rights in the case of Beldjoudi v. France

(judgment of 26 March 1992, Series A no. 234-A), he maintained that his

deportation would violate Article 8 of the Convention.

      On 4 September 1995 the Aliens Appeals Board rejected the

applicant's appeal.  The Board had regard to the Beldjoudi case but

considered that it was considerably different from the first

applicant's.  It further found that, due to the first applicant's

previous criminal activities, there were reasons to call into question

his future conduct.  Thus, notwithstanding his family ties and the

interests of his children, he could not be granted a residence permit.

      The first applicant later lodged a new application with the

Aliens Appeals Board.  He claimed, inter alia, that his eldest daughter

had suffered from anxiety, nightmares and stomach pains since he

started to serve his prison sentence.  He submitted a psychologist's

statement, according to which it was of decisive importance for the

children's development that the family would reunite as soon as

possible, and invoked the United Nations Convention on the Rights of

the Child.

      On 17 January 1996 the Aliens Appeals Board rejected the new

application, finding that no essential new facts had been invoked.

      In an opinion of 18 March 1997, concerning the first applicant's

possible probationary release, the Prison and Probation Administration

(kriminalvården) at Skänninge Prison considered that there was no clear

risk that he would commit further serious crimes.  According to his

contact person at the prison, the prospects of his re-integration into

society were good.  The contact person thus recommended that he be

released on probation after having served half the prison sentence.

      On 25 August 1997, following a further application for a

residence permit, the Aliens Appeals Board decided to stay the

enforcement of the first applicant's expulsion until further notice.

This application is presently pending before the Board.  In support of

the application, the applicants have submitted a medical certificate

of 20 August 1997 concerning their two daughters, issued by a child

psychiatrist and a psychologist at the Children's Psychiatric Clinic

(Psykiska Barna- och Ungdomsvården) in Solna.  According to the

certificate, the first applicant's expulsion is likely to entail

serious consequences for the children's mental health and development.

      On 26 August 1997 the first applicant was released on probation

after having served half his prison sentence.

COMPLAINTS

      The applicants complain that the deportation of the first

applicant to Angola would constitute a violation of their right to

respect for their family life under Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 4 March 1996 and registered on

18 April 1996.

      On 15 January 1997 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para.

2 (b) of the Rules of Procedure.

      The Government's written observations were submitted on 15 May

1997, after an extension of the time-limit fixed for that purpose.  The

applicants replied on 8 July 1997.

      On 22 August 1997 the applicants requested the Commission to

petition the respondent Government to stay the first applicant's

expulsion until the Commission had decided on the admissibility of the

application.  On 25 August the President of the Commission decided not

to indicate to the Government, pursuant to Rule 36 of the Commission's

Rules of Procedure, the measure suggested by the applicants.

THE LAW

      The applicants complain that the deportation of the first

applicant to Angola would constitute a violation of their right to

respect for their family life.  They invoke Article 8 (Art. 8) of the

Convention, which reads as follows:

      "1.  Everyone has the right to respect for his private and

      family life, his home and his correspondence.

      2.  There shall be no interference by a public authority

      with the exercise of this right except such as is in

      accordance with the law and is necessary in a democratic

      society in the interests of national security, public

      safety or the economic well-being of the country, for the

      prevention of disorder or crime, for the protection of

      health or morals, or for the protection of the rights and

      freedoms of others."

      The respondent Government submit that it could be argued that the

first applicant's expulsion will entail no interference with his right

to respect for his family life as, at the time of the applicants'

marriage, he did not have a permanent residence permit and thus was

well aware that his continued stay in Sweden was uncertain.  Moreover,

the applicants might be able to settle in Angola or a third country.

Should, however, the Commission find that the expulsion would entail

an interference with the above right, the Government maintain that the

interference would be justified under Article 8 para. 2 (Art. 8-2) of

the Convention.  In this respect, the Government refer to the first

applicant's conviction for several serious crimes and to the legitimate

aim of preventing disorder and crime.  Furthermore, considering that,

at the time of marriage, the first applicant only had a temporary

residence permit, it is natural to assume that the applicants were

prepared to settle in another country.  According to the Government,

no difficulties to take up residence in a third country have been

brought forward by the applicants.  Finally, should the other family

members not join the first applicant when he is expelled, he can be

given special permission by the National Immigration Board to pay short

visits to Sweden to see his family.

      The applicants submit that the first applicant's expulsion would

not be proportionate to the aim of preventing crime.  Claiming that

there is no risk that he will commit further criminal offences, they

refer to the opinion of the Prison and Probation Administration of

18 March 1997.  The applicants further submit that residence permits

given on account of family ties have to be renewed every six months

until, after a two year period, a permanent residence permit is

granted.  When the first applicant received his first permit, the

applicants had been living together for a long time, were married and

had had their first daughter.  The second applicant and the two

children, who are Swedish citizens, cannot, for reasons of language,

culture and education, follow the first applicant to Angola, where the

family would not be able to find housing or work.  Moreover, the

youngest daughter is allergic to penicillin and certain foods,

including milk and eggs, and would be in great danger in Angola.  The

separation of the children from their father could lead to irreparable

psychological problems for the children.  The first applicant no longer

has any relatives in Angola, as they live as refugees in other parts

of the world.  Regard should also be had to his long stay - more than

six years - in Sweden.  Further, the possibility of the first applicant

paying short visits to his family in Sweden is, according to the

applicants, not economically feasible.

      The Commission recalls that no right of an alien to enter or to

reside in a particular country is as such guaranteed by the Convention.

However, the expulsion of a person from a country in which close

members of his family live may amount to an unjustified interference

with his right to respect for his family life as guaranteed by Article

8 (Art. 8) of the Convention (cf., e.g., Eur. Court HR, Moustaquim v.

Belgium judgment of 18 February 1991, Series A no. 193, pp. 19-20,

paras. 43-46).

      The Commission notes that the applicants have lived together

since July 1991, that they married in May 1992 and that they have two

daughters.  Finding that the first applicant's expulsion would

jeopardise the applicants' continued family life, the Commission

considers that the expulsion could be considered as an interference

with their right to respect for their family life under Article 8

para. 1 (Art. 8-1).  It is therefore necessary to ascertain whether the

expulsion would satisfy the conditions of Article 8 para. 2 (Art. 8-2).

      It has not been contested that the expulsion order was issued "in

accordance with the law".  Further, notwithstanding the opinion of the

Prison and Probation Administration at Skänninge Prison of 18 March

1997, the Commission considers, in view of the crimes of which the

first applicant has been convicted, that the enforcement of the

expulsion order would pursue the legitimate aim of preventing disorder

and crime.

      The Commission recalls that it is for the Contracting States to

maintain public order in particular by exercising their right, as a

matter of well-established international law and subject to their

treaty obligations, to control the entry and residence of aliens.  For

that purpose they are entitled to order the expulsion of aliens

convicted of criminal offences.  However, their decisions in this field

must, in so far as they may interfere with a right protected under

para. 1 of Article 8 (Art. 8-1), be "necessary in a democratic

society", that is to say, justified by a pressing social need and, in

particular, proportionate to the legitimate aim pursued.  In this

regard, a margin of appreciation is left to the Contracting States.

The task of the Commission is to determine whether the expulsion in

issue would strike a fair balance between the relevant interests,

namely the applicants' right to respect for their family life, on the

one hand, and the prevention of disorder and crime, on the other (cf.,

e.g., Eur. Court HR, Boughanemi v. France judgment of 24 April 1996,

Reports 1996-II,

No. 8, pp. 609-610, paras. 41-42, and Bouchelkia v. France judgment of

29 January 1997, Reports 1997-I, No. 28, paras. 48-49).

      The Commission notes that the first applicant has lived in Sweden

for more than six years, almost all the time with the second applicant.

Their family life was established at a time when the first applicant

had no permit to reside in Sweden.  When he was later given such a

permit, it was valid for a limited period of time.  It is true that it

was renewed and that the first applicant was likely to receive a

permanent residence permit after a few years.  However, the applicants'

continued family life in Sweden has all the time been an unsettled

question.  Their situation is not comparable to the case of Beldjoudi

v. France, invoked by the applicants, as the person to be deported in

that case, Mr. Beldjoudi, was born in France, had spent his whole

life - over forty years - there and had been married to Mrs. Beldjoudi,

a French woman, for more than twenty years (ibid., p. 28, paras. 76-

77).

      Of particular importance in the present case is the first

applicant's conviction, on 21 July 1994, of serious offences of fraud.

For this - his second conviction - he received a four year prison

sentence.  The crimes were committed less than two years after his

arrival in Sweden, some of them before he received his first temporary

residence permit.

      The Commission does not overlook the difficulties faced by the

other family members in the event of the first applicant's expulsion

from Sweden, in particular the hardship suffered by the children if

they are separated from their father and the youngest daughter's

allergy problems if the family would follow the first applicant to

Angola.  However, taking into account the first applicant's conviction,

the circumstances under which the crimes were committed and the margin

of appreciation left to the Contracting States, the Commission

considers that the Swedish authorities have not failed to fulfil their

obligation to strike a fair balance between the relevant interests.

Thus, the interference with the applicants' right to respect for their

family life would be justified under Article 8 para. 2 (Art. 8-2) of

the Convention in that it can reasonably be considered necessary for

the prevention of disorder and crime.

      It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

         M.-T. SCHOEPFER                       G.H. THUNE

            Secretary                           President

      to the Second Chamber               of the Second Chamber