CONCURRING OPINION OF JUDGES BAKA, WILDHABER AND LORENZEN

We agree with the majority that the refusal to renew the applicant’s residence permit interfered with the applicant’s right to respect for his private and family life within the meaning of Article 8 § 1 of the Convention and that the interference was “in accordance with the law” and pursued a legitimate aim. As to whether the interference was “necessary in a democratic society”, we would like to make the following observations.

The majority has rightly stressed that according to the constant case-law of the Court, it is for the Contracting States to maintain public order, and to that end they have the power to deport aliens convicted of criminal offences. However, their decisions comply with the requirements of Article 8 only if they are justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. Accordingly, there must be a fair balance between the relevant interests, namely the applicant’s right to respect for his private and family life, on the one hand, and the prevention of disorder and crime, on the other.

A considerable proportion of the Court’s judgments on expulsion of aliens relates to the problems of “second generation” immigrants, that is persons who were born or have lived most of their life in the country from which they are going to be expelled. The main obstacle to expulsion in such cases is the length of the applicant’s stay in, combined with his family ties to, that country. In a considerable proportion of the cases the Court has not found a violation of Article 8 even where the applicant has lived all or most of his life in the country and has fairly close family ties there: see Boughanemi v. France , judgment of 24 April 1996, Reports of Judgments and Decisions 1996-II; C. v. Belgium , judgment of 7 August 1996, Reports 1996-III; Bouchelkia v. France , judgment of 29 January 1997, Reports 1997-I; El Boujaïdi v. France , judgment of 26 September 1997, Reports 1997 ‑ VI; Boujlifa v. France , judgment of 21 October 1997, Reports 1997-VI; Dalia v. France , judgment of 19 February 1998, Reports 1998-I; Benrachid v. France (dec.), no. 39518/98, ECHR 1999-II; Farah v. Sweden (dec.), no. 43218/98, 24 August 1999, unreported; Djaid v. France (dec.), no. 38687/97, 9 March 1999, unreported; Baghli v. France , no. 34374/97, ECHR 1999-VIII; and Öztürk v. Norway (dec.), no. 32797/96, 21 March 2000, unreported. By contrast, the Court has found a violation of Article 8 in the following cases: Moustaquim v. Belgium , judgment of 18 February 1991, Series A no. 193; Beldjoudi v. France , judgment of 26 March 1992, Series A no. 234-A; Nasri v. France , judgment of 13 July 1995, Series A no. 320-B; Mehemi v. France , judgment of 26 September 1997, Reports 1997-VI; Ezzouhdi v. France , no. 47160/99, 13 February 2001, unreported.

As regards the relevant criteria in cases where there are difficulties for the spouses to stay together and, in particular, for one of them to live in the other’s country of origin, we agree with the guiding principles which have been correctly set out in paragraph 48 of the Court’s judgment.

Basing ourselves on an assessment of all the relevant facts of the present case, we agree with the majority that there has been a breach of Article 8 of the Convention. We attach particular importance to the facts that the offence was committed in April 1994 and that, according to the information available, the applicant has not committed further offences since then and now seems to be rehabilitated. Even if we are not fully convinced that it would be impossible for his spouse to live in Algeria , we accept that it would cause her obvious and considerable difficulties. That being the case, we do not find the seriousness of the offence committed to be sufficient to make the expulsion proportionate.