DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE KOVLER

(Translation)

1. To my great regret I am unable to subscribe to the majority ' s conclusion that the first applicant ' s expulsion did not entail a violation of Ar ticle 8.

2. The main argument put forward by the majority in reaching that c onclusion is that the first applicant was never granted a residence permit entitling him to reside lawfully within Norwegian territory. His presence was at best tolerated, and when he married a Norwegian national, he must have known that his right to remain in Norway was precari ous and both he and his wife must have expected that he would be expelled.

3. The fact remains, however, that on 2 February 2003, while he was unlawfully resident in Norway , the first applicant got married.

4. I have difficulty in following the majority ' s reasoning to the effect that “ because of his lack of residence status the marriage had not been contracted in accordance with domestic law ” ( see paragraph 60 of the judgment ).

5. Although the Court adds that “ this shortcoming did not deprive the marriage of its validity ” (see paragraph 60 ), there is serious cause to wonder whether the registration authorities should not, in such circumstances, have refused to perform the marriage ceremony. The administrative authorities thus undoubtedly committed an error in agreeing to the marriage between the first and second applicant although the former did not satisfy the conditions for validly contracting marriage .

6. As the City Court observed , the consequence of this error was 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 (sections 5(a) and 7(k) of the Marriage Act 1991), he had had reason to believe (as from February 2003) that he had a right to stay and to apply for a work permit and a residence permit” ( see paragraph 22 of the judgment ).

7. The first applicant ' s marriage accordingly instilled in him the conviction that he could lawfully remain in Norway .

8. I would observe in this connection that in several member States of the Council of Europe, marriage in itself entitles a foreign national to reside in the State of which his or her spouse is a national.

9. The decision to expel the first applicant thus constituted undeniable interference with his right to respect for his private and family life, all the more so as the first two applicant s had in the meantime produced a child .

10. I do not dispute that the interference had a basis in law and pursued a legitimate aim. The point on which I differ from the majority is whether the expulsion complied with the proportionality principle.

11. Contra ry to most expulsion cases which the Court has had to consider, in this case the first applicant had not committed any criminal offence. The only accusation against him was “ that he had seriously violated the Immigration Act or had defied implementation of the decision that he should leave the country” ( see paragraph 63 ).

12. Seeing that the offence in question was purely administrative and in no sense criminal, I consider that the first applicant ' s Norwegian wife could hardly have been required to follow him to Nigeria so that they could pursue their family life there. It was likewise highly unrealistic to envisage that the first applicant would travel alone to his home country and return occasionally to visit his wife and son in Norway . Their family life would have been seriously impaired.

13. I n conclusion, when the various competing interests were weighed up, the balance should have tipped towards granting the first applicant a residence permit entitling him to remain i n Norway .