CONCURRING OPINION OF JUDGE JEBENS

I agree with the majority that there has been no violation of Article 8. However, I do not agree with the majority ' s interpretation and application of that article. For the reasons set out below, I have concluded that there has been no interference with a protected right in Article 8 in the present case.

The following factual elements concerning the first applicant ' s stay in Norway are in my opinion important for the evaluation of the case:

He entered Norway on 25 August 2001, and applied for asylum. His application was rejected by the Directorate of Immigration on 22 May 2002. He appealed, and pending a decision of his appeal, he was granted a stay of execution of his expulsion and a temporary work permit. His appeal was rejected by the Immigration Appeals Board on 11 September 2002. Having been given until 30 September 2002 to leave Norway , he requested a stay of his expulsion, which was refused on 7 October 2002.

The first applicant did not comply with the order to leave Norway . Having married the second applicant on 2 February 2003, he applied for a work permit on the ground of family reunification, which was rejected on 26 April 2003. He was ordered to leave Norway , but appealed and requested a stay of execution. After having rejected that request, the Directorate of Immigration ordered the first applicant to leave Norway by 30 October 2003.

This account shows that the first applicant was at no time granted lawful residence in Norway , and that he was repeatedly ordered to leave the country. Furthermore, the decision to expel the first applicant, which was passed on 26 August 2003, was a reaction to his persistent defiance with the successive orders to leave Norway . The execution of the expulsion order was carried out as late as 7 March 2007, due to the fact that the first applicant instituted court proceedings.

The Convention does not guarantee the right of a foreign national to enter or reside in a particular country. This is confirmed by the Court ' s case law, from which it follows that the State is entitled to control the entry and residence of foreign nationals in its territory. As a consequence, the Court ' s case law distinguishes between expulsion of a person who has been lawfully residing in a country, and expulsion of a person who has not been granted lawful residence. While in the former situation the Court has exercised a close scrutiny of the justification for the interference with the rights protected by Article 8 § 1, in the latter it has accorded States a wide margin of appreciation in their compliance with their positive obligations under this provision. This implies a limitation of the notion of right to “respect” for family life, which is necessary in order for the State to control entry and residence of foreign nationals in their territory. Reference is made to A bdulaziz , Cabales and Balkandali v. the United Kingdom, §§ 67-69; Boujlif a v. France , § 42 ; Rodrigues da S ilva and Hoogkamer v. the Netherlands, § 43, all referred to in paragraph 54 of the judgment, and also to Mitchell v. the United Kingdom (( dec .) no. 4047/98, 24 November 1998) and Gúl v. Switzerland (judgment 22 January 1996, Reports 1996-I).

It follows from the above referred case law that the fact that the first and second applicant married and got a child in Norway cannot in itself bring the first applicant ' s case within the ambit of Article 8. Contrary to what seems to be the opinion of the majority, it is decisive so far that family life within the meaning of Article 8 was established during the first applicant ' s unlawful residence in Norway, and when neither of the applicants could have any reasonable or legitimate expectations that they could enjoy family life in Norway. Therefore, the decision to expel the first applicant did not, in my opinion, interfere with his right to “respect” for family life.

The question of compliance with Article 8 § 1 must therefore refer to the State ' s positive obligations with regard to protecting the first applicant ' s family life. For the same reasons that the majority have discussed with regard to the “necessity test” I find it clear that there has been no breach of the State ' s positive obligations in this case.

While I have arrived at the same conclusion as the majority, I think that the legal approach is important in such cases. This is so, because one can easily imagine situations where application of a necessity test on an alleged interference will lead to conclusions that are more favourable to an applicant than if one bases the discussion on the State ' s positive obligations. The legal reasoning is therefore of the utmost importance in such cases, namely in order to clarify the State ' s rights and duties vis-à-vis immigrants.