CONCURRING OPINION OF JUDGE ROZAKIS

I have voted in favour of finding no violation of Article 8 in this case, following the case-law of the Court, as crystallised in Boultif v. Switzerland (no. 54273/00, ECHR 2001-IX) a nd further elaborated in the Grand Chamber ' s judgment in Ãœner v. the Netherlands ([GC], no. 46410/99, ECHR 2006-...) . Still, I would like to clarify here, through this concurring opinion, my position concerning the expulsion of second-generation immigrants, a category of foreigners to which the applicant in the present case belonged.

1. Recent developments in the European landscape concerning residence (and deportation) of aliens indicate a clear trend towards strengthening their right to reside lawfully in a country, and a corresponding limitation of the right of States to indiscriminately deport them. The conclusions of the European Council (EU) in Tampere in October 1999 underscored the need for approximation of national laws concerning the terms for admission and residence of nationals coming from countries outside the European Union. The Presidency of the Council made it clear that aliens who were not citizens of a European Union member State and resided legally in a European Union country for a period of time to be determined should be granted a number of rights which were as close as possible to those enjoyed by European Union citizens. At the European Council meeting in Seville in June 2002 the Heads of States and Government of the Union manifested their willingness to develop a common policy on asylum and immigration, and underlined their conviction that the integration of immigrants into the Union ' s countries entailed, on their part, rights and obligations dictated by the human rights recognised by the Union . Equally, the Council of Europe, through recommendations of the Committee of Ministers ( Rec (2000)15 and Rec (2002)4) and the Parliamentary Assembly (Recommendation 1504 (2001)), has made it clear that long-term immigrants should not be expelled. Recommendation Rec (2000)15 of the Committee of Ministers even stated that “[a] fter twenty years of residence, a long-term immigrant should no longer be expellable”, while Recommendation 1504 (2001) of the Parliamentary Assembly called for member States “to take the necessary steps to ensure that in the case of long-term migrants the sanction of expulsion is applied only to particularly serious offences affecting state security of which they have been found guilty” and “to guarantee that migrants who were born or raised in the host country and their under-age children cannot be expelled under any circumstances”.

2. The Court in Üner (cited above, § 55) took into account the recommendations of the Council of Europe, but at the same time it noted that “while a number of Contracting States have enacted legislation or adopted policy rules to the effect that long-term immigrants who were born in those States or who arrived there during early childhood cannot be expelled on the basis of their criminal record, such an absolute right not to be expelled cannot, however, be derived from Article 8 of the Convention, couched as paragraph 2 of that provision is, in terms which clearly allow for exceptions to be made to the general right guaranteed in the first paragraph”.

3. Ãœner represents the latest authority on matters concerning the expulsion of aliens from States Parties to the Convention. A careful reading of its paragraph 55, to which I have just referred, shows clearly that the Court considers that a long-term immigrant who was born in a State Party has the right not to be expelled from that State, a right which is part and parcel of the more general right to private and family life enshrined in Article 8 of the Convention. That right is, of course, not an absolute one, since like all the other constitutive components of Article 8, it is subject to the limitations provided for by its second paragraph. Yet these limitations are the exceptions, not the rule; and in order for the exceptions to prevail, and for a State to be allowed to expel, very serious and exceptional considerations of public interest must exist in the circumstances of a particular case.

4. My interpretation of paragraph 55 of the Üner judgment, which seems to me to reflect the real spirit of its authors, when they speak of a right which is not absolute (and yet a right), has led me, in the circumstances of the present case (as it did in the factual circumstances of Üner ), to vote in favour of finding no violation. Indeed, in both cases there existed very weighty reasons justifying expulsion. Although, admittedly, in the present case of Kaya the applicant was a second-generation immigrant (a matter which objectively makes expulsion even more difficult and exceptional), still the nature of the offences committed – offences which clearly were of an extremely serious moral and criminal nature – justified, to my mind, the measure taken against him.