THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36844/97 by Shanawar HUSSAIN and C. against Norway

The European Court of Human Rights ( Third Section ), sitting on 4 May 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr L. Loucaides, Mr P. Kūris, Mrs F. Tulkens, Mr K. Jungwiert, Mrs H.S. Greve, Mr M. Ugrekhelidze, judges , Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 4 July 1997 and registered on 11 July 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

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.

COMPLAINTS

The applicants complain that expulsion of the first applicant to Pakistan gave rise to a violation of Article 8 of the Convention.  Moreover, they argued that it would entail a violation of Article 2 of Protocol No. 1 in that, should the entire family settle there, it would not be possible to give the children an education and upbringing in accordance with the mother's religious faith.

THE LAW

1. The applicants complain that the first applicant's expulsion to Pakistan constituted a violation of their right to respect for family life as guaranteed by Article 8 of the Convention, which reads:

“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 applicants maintained that the expulsion, although it was in accordance with the law and pursued a legitimate aim, was not necessary in a democratic society.

They submitted that because of the second applicant’s state of health it was not possible for her to settle in Pakistan.  A long separation between the applicant father and his wife not only put their marriage at risk but was also detrimental to their daughters.  It was difficult for the wife to assume the care of the children alone.  The second applicant needed special care day and night, due to intense itching and pain related to her eczema and bed ‑ wetting.  Now and then her asthma caused her breathing problems and made her sneeze. Without the first applicant's assistance, the quality of the care for the children was significantly reduced.

In addition, after having spent 20 years in Norway, the first applicant had experienced difficulties in adapting to life in Pakistan.

In the applicants' submission, the detriment the father's expulsion caused to their enjoyment of their right to respect to family life was not outweighed by any public interest in the expulsion.  Since there was no reason to assume that the first applicant would commit any new offences, the measure was only supported by general considerations of crime prevention. However, the general preventive effects of sanctions against drug offences were uncertain and, according to a leading legal scholar ( Johs . Andenæs ), exaggerated.  At the time when the first applicant committed the offence he had resided in Norway for almost 11 years.  Had he, at the time, applied for Norwegian citizenship this would most certainly have been granted to him.  It would then not have been possible to expel him.

The Court notes that at the time when the expulsion order was effected family life had been established between, on the one hand, the first applicant, and, on the other hand, his wife and daughter C., the second applicant.  It amounted to an interference with the applicants' right to respect for family life.  The Court further considers that, as was undisputed by the applicants, the interference was in accordance with the law and pursued a legitimate aim, namely the prevention of disorder and crime.  There remains to be considered whether it was necessary in a democratic society, which the applicants dispute.

The Court reiterates 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 such persons convicted of criminal offences.

However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, 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 (see, among other authorities, the following judgments: Beldjoudi v. France, 26 March 1992, Series A no. 234-A, p. 27, § 74; Nasri v. France, 13 July 1995, Series A no. 320-B, p. 25, § 41; Boughanemi v. France, 24 April 1996, Reports of Judgments and Decisions 1996-II, Vol. 8, pp. 609-610, § 41; and C. v. Belgium, 7 August 1996, Reports 1996-III, Vol. 12, p. 924, § 31).  The Court's task is to determine whether the expulsion at issue struck a fair balance between the relevant interests, namely the applicants' right to respect for their private and family life, on the one hand, and the prevention of disorder or crime, on the other.

The Court observes from the outset that the expulsion order was grounded on the particularly serious and damaging nature of the offence of which the first applicant was convicted, namely the possession and attempted sale of 1 kg of heroin and the circumstances under which this took place.  In the Court's view, the fact that the first applicant had not previously been convicted, does not detract from the seriousness and gravity of such a crime (see the Bouchelkia v. France judgment of 29 January 1997, Reports 1997-I, p. 65, § 51).

Moreover, although the first applicant had spent nearly 20 years in Norway when the expulsion order was implemented, he had arrived in Norway at the age of 16 and had maintained links with his home country by visits and otherwise.  It does not appear that his ties to Norway, as opposed to those with his country of origin, were comparable to the situation of a second-generation immigrant ( cf the Beldjoudi v. France judgment of 26 March 1992, Series A no. 234, p. 28, § 77; the Mehemi v. France judgment of 26 September 1997, Reports 1997-VI, Vol. 5, p. 1971, § 36).

The Court further notes that, according to the applicant, his relationship with the second applicant’s mother had lasted since 1984. They had been engaged since 1985 and had planned to marry in 1987, but the wedding was cancelled because of his arrest.  It was, however, not until 1989 that they contracted their marriage, 6 months after the first administrative decision to expel the applicant and 1½ years after his conviction and sentence by the High Court, which constituted the ground for his expulsion.  Their first child, C., was born in 1991 and the second was born on 29 August 1995, approximately 8 months after his expulsion was effected (12 January 1995).  Thus, the formal and biological family ties invoked by the first applicant were established only after it had become clear that it was most unlikely that the family would be entitled to reside together in Norway.

Although there were difficulties related to his wife and children settling in Pakistan, notably because of the second applicant’s health problems, these were not described as insurmountable.  In any event, it seems to be the case that it was possible, albeit limited by the costs involved, for the first applicant to maintain contacts by receiving his family for visits in Pakistan.

In these circumstances, the Court does not find that the first applicant's own interests in remaining in Norway outweigh the considerable public interest underlying his expulsion.

As regards the second applicant's situation the Court observes that, while the majority in the Supreme Court acknowledged that the balancing of interests was particularly difficult in the instant case, it attached decisive weight to the seriousness and gravity of the offence, whereas the minority found the interests of the family in the first applicant, the father, remaining in Norway to be preponderant.  Furthermore, as already mentioned, the second applicant would have had difficulties in settling in Pakistan and would only occasionally be able to visit him there.  Her bonds with her father had developed to a point where separation would normally be psychologically difficult for her and would affect the level of care provided at home.  In the Court's view, the daughter's interest in her father being able to remain in Norway carries significant weight in the necessity test under Article 8.

However, having regard to the particularly serious nature of the offence committed by the first applicant, the Court considers that in concluding that the public interest in his expulsion from Norway to Pakistan was preponderant, the authorities of the respondent  State acted within their margin of appreciation.

In the light of the above, the Court finds that the interference with the applicants' right to respect for private and family life was supported by relevant and sufficient reasons, was proportionate for the purposes of Article 8 § 2 and could reasonably be viewed as necessary in a democratic society.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. In the context of their complaint under Article 8 the applicants also invoked, as an obstacle to the family's settling in Pakistan, that, contrary to Article 2 of Protocol No. 1, it would be impossible to give the children an education and upbringing in accordance with the mother's religious faith.  The latter provision reads:

“No person shall be denied the right to education.  In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

Both the first applicant and the mother wished that their children be educated under the Muslim as well as the Christian faith.  However, the applicants submitted that in Pakistan the first applicant would be liable to the death penalty if his children were to convert to Christianity.

In so far as the complaint concerns the first applicant's rights under Article 2 of Protocol No. 1, the Court notes that he claims to be of the Muslim faith.  Any obstacles in Pakistan to his children being educated according to his wife's beliefs, the Christian faith, would not seem to disclose any appearance of a violation of his rights under Article 2 of Protocol No. 1 to have his children educated and taught in conformity with his own religious and philosophical convictions.  This part of the application is therefore inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

In so far as the complaint relates to the mother's rights, it is to be noted that she has not lodged an application under the Convention and is thus not a party to the proceedings before the Court.  In this respect the applicants' complaint is therefore incompatible ratione personae and must be declared inadmissible under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President