FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 265/07 by Louis O saze DARREN OMOREGIE and Others against Norway

The European Court of Human Rights (First Section), sitting on 22 November 2007 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr S.E. Jebens , Mr G. Malinverni, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 13 December 2006,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Louis Osaze Darren Omoregie , is a Nigerian national who was born in Sierra Leone in 1979. The second applicant is Mrs Elisabeth Skundberg Darren, a Norwegian national who was born in 1977. The third applicant is their daughter, Selma , who was born on 20 September 2006. They reside in Biri , Norway . They are represented before the Court by Mr A. Humlen, a lawyer practising in Oslo . The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney, Attorney-General ’ s Office (Civil Matters) .

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

The first applicant lived in Nigeria as from the age of 6 months until he went to Norway , where he arrived on 25 August 2001, without passport or other identity document. On the same date he applied for asylum.

In October 2001 he met the second applicant. The couple started cohabiting in March 2002.

1. Rejection of the first applicant ’ s asylum application and related expulsion order and refusals

The first applicant ’ s asylum application was rejected by the Directorate of Immigration on 22 May 2002. He appealed to the Immigration Appeals Board and, pending a decision of his appeal, he was granted a stay of execution of his expulsion and a temporary work permit.

The first and second applicants got engaged on 10 September 2002.

On 11 September 2002 the Immigration Appeals Board rejected the applicant ’ s appeal, stating inter alia

“This administrative decision means that the appellant is obliged to leave the country voluntarily. If the appellant does not leave the country voluntarily, the police shall implement the decision; cf. sections 40 and 41 of the Immigration Act.”

Shortly thereafter the Implementation Group of the Oslo Police District sent a notification of the decision to the first applicant ’ s lawyer, giving the first applicant until 30 September 2002 to leave Norway . The notification further stated:

“Your client must contact the Implementation Group for Administrative Decisions as soon as possible to make arrangements for his departure from Norway . If we have not been contacted by the time the deadline expires, the decision will be implemented in accordance with section 41 of the Immigration Act. This could result in his arrest without further notice.”

On 1 October 2002 the first applicant requested the Board to stay his expulsion, which the Board refused on 7 October 2002.

No judicial appeal was lodged against the above decisions, which became final.

On 2 February 2003 the first and second applicants got married.

On 14 February 2003 the first applicant applied for a work permit on the ground of family reunification. The Directorate of Immigration rejected the application on 26 April 2003 and ordered him to leave Norway . This decision was notified to him on 7 May 2003.

On 14 May 2003 the applicant again appealed and requested stay of execution. The Directorate of Immigration rejected the request on 19 October 2003 with an order to leave Norway by 30 October 2003.

2. Administrative sanction for failure to leave the country and ensuing judicial proceedings

Concurrently with the Immigration Appeals Board ’ s examination of the first applicant ’ s appeal of 14 May 2003, the Directorate of Immigration, referring to his unlawful gainful employment since September 2002 in defiance of his obligation to comply with the expulsion order, notified him that he was in aggravated breach of the Immigration Act. On 26 August 2003 the Directorate of Immigration found that the applicant ’ s alleged ignorance of the unlawfulness of his gainful occupation was no excuse and that it would not be disproportionate to expel him despite his marriage with the second applicant. It decided to prohibit the first applicant from re-entry into Norway for five years, with a possibility of re-entry on application - normally only after two years.

On 21 July 2004 the Immigration Appeals Board upheld the Directorate of Immigration ’ s decision that the basic conditions for expelling the first applicant under section 29(1) of the Immigration Act were fulfilled; for more than a year he had been in gainful occupation without a work/residence permit. The Board also noted that he had avoided the implementation of the decision refusing him asylum and obliging him to leave the country. The Board found that his expulsion would not be disproportionate or otherwise contrary to Article 8 of the Convention. It also dismissed his appeal against the Directorate ’ s rejection of his application for a work permit.

By a judgment of 15 February 2005 the Oslo City Court quashed the Immigration Appeals Board ’ s decision of 21 July 2004 as being invalid. It found it obvious that the basic condition for expelling the first applicant – that he had seriously or repeatedly violated the Immigration Act or had defied implementation of the decision that he should leave the country – had been fulfilled. The question then was whether expulsion would be a disproportionate measure vis-à-vis the first applicant and his close family.

In this regard the City Court observed that, although the first applicant had failed to comply with one of the conditions for contracting marriage in Norway , namely lawful residence in the country, he had had reason to believe that he had a right to stay and to apply for a work permit and a residence permit. While he had failed to respect two deadlines for leaving the country, he could not be criticised for having exceeded such deadlines after 26 April 2003 as the information furnished to him by the Directorate of Immigration had been unclear as to the time-limits set for his leaving the country compared to those set for asking respite and the replies given to his requests for respite. He had worked unlawfully for nine months and had resided unlawfully for four and a half months. This was, relatively speaking, not a very serious offence, which fact counterbalanced his relatively weak links to Norway . To impose a prohibition on re-entry for five years would constitute a disproportionate measure towards the applicant and his family in the sense of section 29 of the Immigration Act. It could easily lead to the dissolution of the family. The second applicant would presumably have great difficulties of adaptation in the first applicant ’ s home country. Even if the first applicant could apply for re-entry after two years, he would most probably only be granted permission to come for shorter visits. The City Court found it unnecessary to examine whether the disputed decision violated Article 8 of the Convention.

On an appeal by the State against the City Court judgment, the High Court reached a different conclusion. By a judgment of 27 February 2006, it found that the first applicant ’ s omission to leave the country voluntarily, although not the same as going under ground, meant that he had avoided compliance with the order to leave the country, meaning that the basic conditions for his expulsion under section 29 of the Immigration Act were fulfilled.

The High Court found it established that the applicant had stayed lawfully in Norway from 25 August 2001 to 30 September 2002. From the latter date or 1 October 2002 until 14 February 2003 when he applied for family reunification it was undisputed that his stay was unlawful. It was further undisputed that he had worked unlawfully without a work permit for 9 months, from 30 September/1 October 2002 until early July 2003. Thus the formal grounds for expulsion according to section 29 of the Immigration Act were fulfilled.

As to the issue of proportionality, the High Court observed that the first applicant ’ s links to Norway were very limited. He had arrived in Norway aged 22 years, without any links to the country. At the time of the impugned decision he had lived there for less than three years, parts of the time unlawfully. Already after less than two years he had been warned of expulsion. His stay in Norway had been very short and could not have given him any legitimate expectation of being able to live there. This was not significantly altered by his marriage to the second applicant, which had been entered into shortly before the disputed decision and in breach of the provisions on marriage. It was not uncommon for a person whose expulsion had been decided to marry a Norwegian citizen and use this as an argument to have the expulsion order invalidated. In such a situation expulsion would inevitably interfere with an established family situation. In this case there was no indication that expulsion would entail extra burdens of any kind beyond what followed from the separation.

The High C ourt also found that the first applicant ’ s links to Nigeria were particularly strong and far more so than his links to Norway . In Nigeria he had lived from the age of six months until the age of 22, had studied at university for four years, and had three brothers with whom he was still in contact. Nor were there any concrete factors suggesting that, because he sought asylum in Norway , he would encounter particular problems with the Nigerian authorities upon return.

As regards the second applicant, the High Court observed that at the time that they married she must already have been aware of the uncertainty of the first applicant ’ s stay in Norway . Moreover, she was used to living abroad, having lived for several periods in South Africa . English was also the official language of Nigeria . In the view of the High Court, she would not face insurmountable problems by settling in Nigeria for a shorter or longer period, should she so wish.

As to the first applicant ’ s violations of the Immigration Act, the High Court found them to be of a certain degree of seriousness but did not find them particularly aggravated. However, having regard to the tenuous character of his links to Norway , the High Court considered that the balance of interest was not in his favour. Were it to be otherwise, expulsion would be possible only in very rare cases, with the consequence that this would have for the implementation of adopted immigration policies. The only countervailing consideration was his marriage to the second applicant. However, this could not be decisive; otherwise it would leave open a practice which would completely undermine the authorities ’ implementation of the Immigration Act.

Relying essentially on the same considerations as mentioned above, the High Court, taking into account the Strasbourg Court ’ s case law, did not find that the disputed decision would be incompatible with Article 8 of the Convention.

On 14 June 2006 the Appeals Leave Committee of the Supreme Court refused the applicant leave to appeal, finding it obvious that the appeal had no prospects of success.

In the meantime, on 15 February 2005 the first applicant had submitted a new application for a work permit on the ground of family reunification with the second applicant. The Directorate of Immigration rejected his application on 21 July 2006.

3. Birth of the third applicant and renewed requests by the first applicant

On 20 September 2006 the couple had a child, Selma , who is the third applicant.

On 31 October 2006 the Immigration Appeals Board rejected an appeal by the first applicant against the Directorate of Immigration ’ s refusal of 21 July 2006. The Board found that quashing the refusal of re-entry was not required in the interest of the third applicant, inter alia noting that the child had been conceived after a final expulsion order and referring to the circumstances of the entry into marriage. It would be possible for the second and third applicants to live with the first applicant for shorter or longer periods in his home country. Although the fact that the first and second applicants had had a child together substantially altered the assessment of the proportionality of the prohibition of re-entry, the Board still did not find that the measure would be disproportionate . Neither Article 8 of the Convention nor the United Nations Children Convention could imply a different solution.

On 2 November 2006 the Directorate of Immigration refused to stay the applicant ’ s expulsion.

On 13 December 2006 the applicants, represented by a lawyer, submitted an application under the Convention, which was received at the Registry on 3 January 2007. They complained that the first applicant ’ s expulsion would entail a splitting of the family in breach of Article 8 of the Convention. It would not be possible for the second and third applicants to accompany him to Nigeria . They submitted that, having regard to the minor character of his breaches of the Immigration Act, the enforcement of the expulsion order would constitute a disproportionate interference with the applicant ’ s family life. Any such enforcement should await a final decision by the Court.

On 5 January 2007 the President of the Section decided, in the circumstances, not to indicate to the Government of Norway, under Rule 39 of the Rules of Court, the interim measure requested. T he circumstances underlying the application were not of the kind to which, in the Court ’ s practice, Rule 39 was applied. On 19 January 2007 the applicants ’ lawyer informed the Court that they wished to maintain their application notwithstanding the refusal to apply Rule 39.

On 30 March 2007 the Immigration Appeals Board dismissed an appeal by the first applicant against a rejection by the Directorate of Immigration of 30 October 2006 of a renewed request by the first applicant for family reunion with the third applicant. The request had been made on the basis of a provision in the Immigration Regulation which was applicable to cases of unmarried parents and therefore did not cover the applicants ’ case. Nor did the Board see any other reason for altering its earlier decision in the case.

4. Implementation of the first applicant ’ s expulsion

In the meantime, on 7 March 2007 the Implementation Group of the Oslo Police District expelled the first applicant back to Nigeria .

B. Relevant domestic law and practice

The Government drew particular attention to the provisions of the Immigration Act set out here below.

Section 6 Work permits and residence permits

“Any foreign national who intends to take work with or without remuneration or who wishes to be self-employed in the realm must have a work permit.

Any foreign national who intends to take up residence in the realm for more than 3 months without taking work must have a residence permit.”

Section 8 When work and residence permits shall be granted

Any foreign national has on application the right to a work permit or a residence permit in accordance with the following rules:

[...]

3) There must not be circumstances which will give grounds for refusing the foreign national leave to enter the realm, to reside or work in accordance with other provisions of the Act.”

Section 9 Work or resid ence permits for family members

The closest members of the family of a Norwegian or Nordic national who is resident in the realm or of a foreign national who has or is granted lawful residence in the realm with a work permit or a residence permit without restrictions, have on application the right to a work permit or residence permit provided there are no such circumstances as mentioned in section 8 first paragraph, sub-paragraph 3. As a general rule subsistence must be ensured. The King may by regulations issue further rules.”

Section 29 § 1 letter a) of the Immigration Act has the following wording:

Section 29 Expulsion

“Any foreign national may be expelled

a)when the foreign national has grossly or repeatedly contravened one or more provisions of the present Act or evades the execution of any decision which means that the person concerned shall leave the realm”

According to section 29 § 4, an expulsion order may be accompanied by a prohibition of re-entry to Norway . However, the person expelled may, on application, be granted leave to enter Norway . Furthermore, according to well-established administrative practice, when considering an application for leave to enter under section 29 § 4, the Directorate of Immigration was under an obligation to consider the proportionality of its decision on prohibition of re-entry. The provision read:

“Expulsion is an obstacle to subsequent leave to enter the realm. Prohibition of entry may be made permanent or of limited duration, but as a general rule not for a period of less than two years. On application the person expelled may be granted leave to enter the realm, but as a rule not until two years have elapsed since the date of exit.”

Section 41 Procedure for the implementation of decisions

“Any decision which means that any foreign national must leave the realm is implemented by ordering the foreign national to leave immediately or within a prescribed time limit. If the order is not complied with or it is highly probable that it will not lead to the foreign national ’ s leaving the realm, the police may escort the foreign national out. When particular reasons so indicate, the foreign national may be conducted to another country than the one from which the foreign national came. Any decision which applies to implementation is not considered to be an individual decision, cf. section 2 first paragraph, sub-paragraph b, of the Public Administration Act.”

COMPLAINT

The applicants complain under Article 8 of the Convention about the decision to expel the first applicant with a prohibition of re-entry into Norway for a period of five years.

THE LAW

The applicants complained that the first applicant ’ s expulsion to Nigeria would entail a violation of their right to respect for private and family life in violation of Article 8 of the Convention, which in so far as relevant, provides:

“1. Everyone has the right to respect for his private and family life ....

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.”

1. The Government ’ s submissions

The Government emphasi s ed that the legal proceedings before Norwegian courts ’ predated the third applicant ’ s birth and were confined to a review of the Immigration Appeal Board ’ s expulsion decision of 21 July 2004 in the light of the first applicant ’ s family link with the second applicant. For these reasons – in so far as the applicants relied on the birth of the third applicant in support of their application – the applicants have failed to exhaust all available domestic remedies under Article 35 § 1 of the Convention .

In this connection the Government pointed out that as a starting point section 8 § 3 of the Immigration Act 1988 place d limitations on the opportunity to apply for family reunification where the foreign national had been expelled with a prohibition of re-entry. However, a prohibition of re-entry could be set aside upon application ( section 29 § 4 ) if there was reasonable cause for doing so ( section 124 § 1 ) . A n application for family reunification made by a foreign national , who ha d been expelled with a prohibition of re-entry , would normally be reviewed as an application both for setting the prohibition aside and for family reunification. This approach had indeed been followed by the Directorate of Immigration and the Immigration Appeals Board when considering the first applicant ’ s request for family reunification with the third applicant. They had examined whether the third applicant ’ s birth could warrant setting aside the prohibition on re-entry and a grant of family reunification. The matter was one that could undoubtedly have been reviewed by the national courts, had the applicants lodged a judicial appeal. However, they had failed to exhaust judicial remedies in respect of the claim for family reunification with the third applicant. In the Government ’ s opinion, in so far as the applicants rel ied on the birth of the third applicant in support of their application , the application should be dismissed with to the requirement of exhaustion of domestic remedies in Article 35 § 1 of the Convention.

Thus, the Government invited the Court to confine its review of the present case to the Immigration Appeals Board ’ s administrative decision , which had been upheld by the courts, to expel the first applicant with a five year prohibition of re-entry in the light of his family link with the second applicant.

T he Government submitted that Article 8 of the Convention was inapplicable in a case, where , as here, the relevant family link had been established at a time when the applicants could not have had any reasonable or legitimate expectations as to the prospects of establishing and continuing a family life in Norway, and where the y ha d failed to show that there existed insurmountable obstacles for establishing a family life in the first applicant ’ s home country. T he period of married life that existed while the Immigration Authorities considered the first applicant ’ s application for family reunification with the second applicant, could not have given the applicants any reasonable or legitimate expectations as to the prospects of establishing and continuing a family life in Norway . It was undisputed that the first applicant, at the time of his application for family reunification with the second applicant, had been residing and working unlawfully in Norway for several months, thus disregarding the order to leave the country notified to him on 11 September 2002. The first and second applicants had both been aware of this.

Although it was generally true that a spouse of a Norwegian citizen who applie d for family reunification normally ha d a right to reside in the country until the Directorate of Immigration had processed the application, this had not been t he case for the first applicant. He had applied for family reunification with the second applicant at a time when he was already unlawfully residing in the country. Thus, the first applicant ’ s residence in Norway after the application for family reunification had in fact merely been tolerated by the authorities pending the Directorate of Immigration decision . T he latter had rejected the application for family reunification as early as 26 April 2003, which measure had been followed up with a new order that he leave the country. In the view of the Government, this could not have give n the applicants any reasonable or legitimate expectations as to the prospects of establishing or continuing a family life in Norway .

In the Government ’ s view, the Convention case-law invoked by the applicants did not lend support to their argument.

In any event, should the Court nevertheless find Article 8 applicable, the Government submitted that any interference with the applicants ’ private and family life resulting from the impugned measures was justified under Article 8 § 2. The y referred to their arguments above contesting the applicability of Article 8. In the view of the Government, it transpi red from the Court ’ s case law that, where the family link had been established at a time when there could be no reasonable or legitimate expectations as to the possibilities for establishing a family life in the Contracting State, the threshold would be very high for finding an exclusion order or an expulsion disproportionate for the purposes of the necessity test under Article 8 § 2 of the Convention. Th e threshold had not been surpassed in the present case. The impugned expulsion and prohibition on re-entry had been base d on the first applicant ’ s aggravated and repeated violations of Norwegian immigration law. Moreover, his ties with Norway had been very limited at the time of the contested administrative decisions and he still had strong ties to Nigeria . There were no insurmountable obstacles preventing the applicants from enjoying family life in the first applicant ’ s home country. The second applicant had had the experience of living in South Africa and the third applicant was of an adaptable age.

2. The applicants ’ submissions

The applicants requested the Court to reject the Government ’ s submission that they had failed to exhaust domestic remedies. While it was true that the issue of family reunion with the third applicant, born on 20 September 2006, had not been reviewed by the national courts, the applicants pointed out that such review would have been purposeless. Pursuant to section 9 of the Immigration Act no residence or work permit could have been granted to a foreigner under circumstances that would have provided a ground for denying him or her access to the country. In the present instance, the decision to expel the first applicant constituted such a ground and judicial review would have offered no prospects of success.

As to the substance of their complaint, the applicants maintained that the first and second applicants had had a relationship since the spring of 2001 and had been married since 2 February 2003. On 20 September 2006 a child had been born from their union, the third applicant. After t he first applicant ’ s expulsion to Nigeria it would not be possible for the second and third applicants to follow him to settle there. T he expulsion of the father would lead to the family being split, which would have particularly adverse consequences for the wife and the child and would amount to a disproportionate interference with the applicants ’ right to respect for private and family life.

The applicants pointed out that the reason why the authorities of the respondent State had found it necessary to expel the first applicant had been that he had omitted to leave Norway from 1 October 2002 to 2 February 2003, when he got married, and the fact that he had worked without a work permit from the former date until July 2003, when he had become aware that he no longer had a work permit as a result of the refusal notified to him on 30 September 2002. The first applicant had not gone under ground but had stayed at a permanent address that was known to the authorities all the time. Having regard to the trivial nature of his transgression of Norwegian law, an interference of such a far reaching character and its damaging effect for his spouse and newly born child would be disproportionate.

The applicants disputed the Government ’ s argument that their case fell outside the scope of protection of Article 8 of the right to respect for private and family life. They pointed out that the first and second applicants had been married during the period when a stay of execution had been granted in respect of the first applicant ’ s expulsion and were thus lawfully residing in Norway . From section 10 of the Immigration Regulations, supported by guidelines contained in EDI directive 2004-044, a marriage, if entered into in breach of the criteria for contracting marriage, should be regarded as having been legally contracted and as implying the same rights as other marriages entered into in Norway . This had meant that section 10(d) of the Regulation granted the spouses of Norwegian citizens who had applied for family reunion the right to make such an application from Norway and to live with their spouse in the country pending final decision on their application. This in itself showed that the first applicant had established and enjoyed family life with a permission to reside in Norway , which state of affairs had been sufficient to trigger the protection of Article 8 of the Convention. Referring to the Court ’ s case-law in this area (notably Mubilanzila Mayeka and Kaniki Mitunga v. Belgium , no. 13178/03, ECHR 2006 ‑ ...; and Rodrigues da Silva and Hoogkamer v. the Netherlands , no. 50435/99, ECHR 2006 ‑ ...), the applicants argued that the Article 8 guarantees applied also where the person concerned did not hold a formal residence permit but nevertheless lived and had family life in the respondent State.

The applicants further disagreed with the Government ’ s argument that there had been no justifiable expectation of married life in Norway . After having co-habited for a time, the first and second applicants had married, following which the first applicant had applied for family reunion with his spouse. As mentioned above, although the first applicant did not hold a formal residence permit, as a married couple they were nonetheless on an equal footing with married couples who had wedded in accordance with the Marriage Act. Under section 9 of the Immigration Act they were entitled to family reunion, as was also confirmed by the 26 April 2003 Decision of the Directorate of Immigration. The reason why the application for family reunion had been denied was that the support requirement had not been fulfilled. With a view to comply with this requirement, the second applicant had interrupted her studies in order to take up gainful employment. Therefore, on the basis of the rights accorded to them under the relevant national laws and regulations, the first and second applicants had a legitimate expectation of being able to continue their married life in Norway .

The applicants moreover emphasised that at the time when the case had been pending before appellate courts the second applicant had been pregnant with the third applicant and that the first applicant was the father. It had thus been clearly predictable for those courts that a reestablishment of the marriage would have to take place at the time of the child ’ s birth. This constituted an unacceptable requirement in view of the living conditions in Nigeria , from the point of view of health, culture and employment. At the time the second applicant was pursuing her studies in Norway . Her educational background would not have provided her with any basis for obtaining employment in Nigeria . Moreover, the cultural differences had been such that both she and the child would have encountered adaptation problems in Nigeria . The High Court ’ s argument that she had previously sojourned in South Africa (seven months for study purposes) was simply unreasonable and unfair.

In light of the above, the applicants maintained that the expulsion of the first applicant would give rise to a violation of Article 8 of the Convention.

B. Assessment by the Court

T he Court first notes that the parties were in disagreement as to whether the applicants had been be required under Article 35 § 1 of the Convention to exhaust domestic judicial remedies in so far as the their complaint under Article 8 of the Convention related to the third applicant, whose birth had post-dated the last decision taken by a domestic court in their case. Whereas for the applicants it would have been entirely futile for them to pursue in a new round before the national courts their case with this additional element, for the Government their failure to have done so in effect meant that the scope of their case under the Convention was limited to that of the first two appli cants.

The Court, for its part, considers that it is competent, in the interest of the economy of the procedure, to take into account the third applicant ’ s birth as a fact occurring during the course of proceedings constituting a continuation of the facts underlying the complaint (see, mutatis mutandis , Olsson v. Sweden (no. 1) , judgment of 24 March 1988, Series A no. 130, p p . 28-29 , § 56; Rieme v. Sweden , judgment of 22 April 1992, Series A no. 226 ‑ B, p. 67 , § 5 1 ) .

The Court therefore finds that the Government ’ s plea of inadmissibility for non-exhaustion of domestic remedies must be dismissed.

The Courts considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President