CONCURRING OPINION OF JUDGE JEBENS

I agree that there would be a violation of Article 8 of the Convention in the event of the applicant ’ s expulsion. However, I would have liked the reasoning of the judgment to be clearer with regard to the impact of the interest of the children and those of the applica nt herself in the present case.

There can in my opinion be no doubt that when considering her situation on its own, irrespective of the best interests of the children, the applicant ’ s expulsion accompanied by a two-year prohibition on re-entry would not constitute a disproportionate measure vis-á-vis her, for the purposes of Article 8. It suffices in my view to refer to the applicant ’ s illegal re-entry into Norway , her use of misleading information before the Norwegian immigration authorities and the fact that her continued stay in Norway had at no time been lawful.

However, it follows from the Court ’ s case law, cited in the judgment, that an applicant ’ s children are indirectly protected under the Convention, even if they are not applicants in an expulsion case which concerns a parent. The protection of the children in such situations has become clearer in recent years, and may even have increased, as a result of the Court ’ s reliance on other international legal instruments, in particular the UN Convention on the Rights of the Child, notably its Article 3, see for instance Neulinger and Shuruk v. Switzerland (GC), referred to above in the judgment. This approach constitutes an important step forward and should be welcomed by a Human Rights Court of the 21st century. However, it is important to note that by applying such an approach, which emphasises the priority to be given to the interests of the child, one inevitably reduces the States ’ margin of appreciation in such cases. Still, in the present case, there has in my view been a constructive dialogue between judges and I have been inspired by the General Comments by the UN Child Committee, to which the Supreme Court ’ s minority has referred and relied on to a large extent.

In paragraph 18 of its General Comment No. 7 (2005) the UN Committee on the Rights of the Child states the following: “Young children are especially vulnerable to adverse consequences of separations because of their physical dependence on and emotional attachment to their parents/primary caregivers. They are also less able to comprehend the circumstances of any separation. Situations which are most likely to impact negatively on young children include ... situations where children experience disrupted relationships (including e n forced separations), ... ”

These observations are in my opinion directly relevant for the present case. It is in my view safe to assume that the two children, who are both girls, and at the age of nine and eight years, are particularly dependent on the presence of their mother and therefore in a vulnerable situation with respect to a presumably long-lasting separation from her. The fact that the proceedings before the Norwegian Immigration authorities took so many years must have added considerably to their strains. For these reasons, which refer exclusively to the best interests of the children, I have concluded that, in the exceptional circumstances of the present case, expelling the applicant would constitute a violation of Article 8 of the Convention.

JOINT DISSENTING OPINION OF JUDGES M IJOVIĆ AND DE GAETANO

1. We regret that we cannot share the view of the majority in this case. The crucial issue here is whether, in the particular circumstances of the case, the expulsion order in respect of the applicant and the temporary ban on re-entry strike a fair balance between her right to respect for family life and the State ’ s legitimate public interest in ensuring effective – and not merely cosmetic or illusory – immigration control. We unhesitatingly are of the opinion that in the instant case such a balance was struck and that therefore one cannot speak of a violation of Article 8. We are particularly concerned that this case will send the wrong signal, namely that persons who are illegally in a country can somehow contrive to have their residence “legitimised” through the expedient of marriage and of having children. In this respect we fully share the comment of Mr Justice F of the Norwegian Supreme Court (at paragraph 79 of his judgment, reproduced at § 23 of the judgment of this Court) that if the expulsion in this case is regarded as disproportionate “it would be difficult to envisage when it would be possible to expel a foreign national who has a child with a person holding a residence permit.”

2. As was correctly pointed out in the decision embraced by the majority (see passim §§ 6-11 and 67), the applicant, after her deportation from Norway in March 1996, which deportation was accompanied by a two-year prohibition on re-entry due to a criminal conviction, brazenly defied that prohibition by re-entering Norway within just four months using a false identity and a false passport. Within three months of this subterfuge she married (on 11 October 1996) a Norwegian national, and six days later she applied for a residence permit. On the basis of her declaration that she had not previously visited Norway and that she had no previous criminal convictions, she was granted residence, work and settlement permits. Not only, therefore, had this residence in Norway from day one been “precarious” (a term normally applied to non-nationals who are granted permission to remain in a country for a definite period of time) but it had also been tainted by, and based entirely upon, deliberate deception. After separating from her husband, the applicant started co-habiting with Mr O, who, like her, originated from the Dominican Republic and who had a (valid) settlement permit. The couple had two daughters, born in 2002 and 2003. It is against this backdrop that the case unfolds after the Norwegian authorities became aware of the applicant ’ s true identity, and proceedings were commenced to have her work and other permits revoked.

3. The applicant ’ s expulsion order received comprehensive and exhaustive examination by the domestic courts in Norway , where Article 8 was also examined. The decision of the Directorate of Immigration was reviewed by the Immigration Appeals Board (§§ 14, 15 and 19), by the Oslo City Court (§ 20), by the Borgarting High Court (§§ 20 and 21) and by the Supreme Court (§§ 22 et sequens ). At all these levels the domestic courts took into account and examined all the submissions advanced by the parties for and against the deportation order. We find it difficult to understand how and why, given the considerable margin of appreciation given to States in connection with immigration policy, and the fact that the domestic courts are best suited to appreciate the particular local exigencies on the one hand and the actual situation of the persons affected by the authorities ’ decision on the other hand [1] , the Court found it necessary in this case to interfere in the final decision of the Supreme Court and go against it. In our view, the Supreme Court ’ s decision was based on relevant and sufficient reasons and considerations. It is true that the Borgarting High Court quashed the Board ’ s decision of the 23 February 2007. However it is clear that this is due to the fact that Norwegian law (section 29(2) of the Immigration Act 1988, see § 26) required a twofold and separate assessment of the proportionality or otherwise of the deportation measure – one vis-à-vis the foreign natio nal to be deported, and another vis-à-vis “the closest members” of his/her family. This dichotomy is artificial in the light of what must necessarily be a unitary concept of family life in Article 8. In any case, although the Borgarting High Court found that the measure would not be disproportionate as regards the applicant but that it would be disproportionate as regards the children, it nonetheless “assumed that the decision of the 23 February 2007 was not incompatible with Articl e 8 of the Convention.” (§ 20).

4. As already pointed out in paragraph 2, above, the distinguishing feature of this case is that the applicant obtained entry into Norway , as well as work and residence permits, by deception. This in itself is a very serious offence in terms of immigration law. In this case it is difficult to believe that Mr O, being himself a Dominican, was not aware of the applicant ’ s true identity and therefore unaware that she was in Norway abusively. But even if, which we do not for a moment believe, he did not know, neither is there anything to indicate that he at least attempted to verify his partner ’ s situation before he decided to “set up family” with her. For this reason the general principles, namely that an “important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious” and that “[w]here this is the case the removal of the non-national family member would be incompatible with Article 8 only in exceptional circumstances” [2] , apply.

5. While we agree with the majority ’ s view that the best interest of the children carries significant weight in the proportionality assessment and is of primary importance, it is not necessarily decisive. As already indicated, we do not agree with the majority ’ s finding that the measure in question -- the applicant ’ s two year expulsion -- would be disproportionate. Having regard to the respondent State ’ s margin of appreciation (which we consider must be wider in the context of illegal immigration than it would be in the context of legal immigration or residence), we are of the opinion that the Norwegian Supreme Court ’ s decision -- based on the rule that where a foreign national had committed a particularly serious criminal offence, the expulsion would be disproportionate only if it would entail an extraordinary burden for the children -- ought to have been respected in the present case. Upon an objective and dispassionate examination of the facts and of the legal principles applicable, we cannot but consider that the expulsion and two-year re-entry ban are neither disproportionate nor do they impose an extraordinary burden on the children. The fact that the applicant ’ s re-entry ban is limited in time and that she would have the possibility to apply for re-entry is of particular importance in the whole balancing exercise. It is true that one could say that there is no absolute guarantee that the applicant would be allowed to re-enter after the two-year period, but she would have the possibility to seek judicial review of any eventual negative decision, which in effect makes the applicant ’ s position not hypothetical and theoretical but reasonably certain and definite both procedurally and substantively [3] .

6. In the majority ’ s view, the “disproportionality” of the measure was supported by the argument that the applicant, if expelled, would not be able to maintain her contacts with her children and that that would be an extraordinary burden for their family life. Now, apart from the fact that with to-day ’ s means of communication [4] it can be argued that expulsion placed a lesser burden in this respect than would have been the case had a prison sentence been imposed, the domestic courts, during the custody proceedings, had formed a favourable impression of the children ’ s father as a care person, finding that, of the two parents, he was the one more capable of assuming their care. Moreover, the father had during the custody proceedings undertaken an obligation to facilitate contact between the children and the applicant. Finally, there was nothing to suggest that the children had stronger links to their mother than to their father, or that the father ’ s ability to assume care would be reduced in the immediate future. In any case, were that to happen, the applicant could apply for a dispensation from the re-entry ban.

7. For all these reasons we are of the opinion that the authorities of the respondent State acted well within their margin of appreciation and did strike a fair balance between the applicant ’ s right to respect for her family life and the State ’ s legitimate interest in ensuring effective immigration control, which brings us to the conclusion that there would be no violation of Article 8 of the Convention in this case in the event of the applicant ’ s expulsion.

[1] 1. Vide passim Siebert v. Germany (dec.), 9 June 2005; M.A.K. and R.K. v. the United Kingdom , 23 March 2010, § 68.

[2] 2. Darren Omoregie and others v. Norway , 31 July 2008, § 57. See also Üner v. the Netherlands [GC], 18 October 2006, § 57.

[3] 1.  See in this respect Kaya v. Germany , 28 June 2007, § 69.

[4] 2.  The English High Court, in a recent relocation case, has given considerable importance to the fact that to-day the absent parent can keep an extraordinary measure of contact with a child through the use of the internet, particularly Skype – see Re W (Children) [2011] EWCA Civ 345 §§ 104, 136 and 155.