DISSENTING OPINION OF JUDGE THOMASSEN JOINED BY JUDGE JUNGWIERT

1 . After much hesitation I finally voted against the finding of a violation of Article 8 of the Convention in the present case. Although I consider the way in which the majority has struck a balance between the different interests involved convincing, I also think that the reasoning of the national authorities cannot be said to have been unreasonable or arbitrary.

2 . The first applicant was convicted of having participated in an organisation aimed at committing criminal offences, and of having been a co-perpetrator of the offence of intentionally being in the possession of about 52 kilos of heroin. For a long time he had allowed his house to be used for stashing considerable quantities of this drug, suitable for further distribution. This was undoubtedly a particularly serious offence, and an unconditional term of four years ’ imprisonment was imposed. As the Court has held on previous occasions, it understands – in view of the devastating effects drugs have on people ’ s lives – why the authorities show great firmness to those who actively contribute to the spread of this scourge (see Baghli v. France, no. 34374/94, § 48, ECHR 1999-VIII).

3 . The first applicant ’ s criminal activities were discovered some three years after he had first entered the Netherlands and only one year after he had been granted a residence permit for the purposes of forming a family unit. His situation is not comparable to that of a second generation immigrant, as he arrived in the Netherlands at the age of 23. He must therefore be well acquainted with the language and culture of his native Turkey and still have strong links with that country.

4 . As to the first applicant ’ s ties with the Netherlands , these appear to be connected mainly to his marriage to the second applicant and the two children. The first applicant ’ s residence permit which, as mentioned above, had been granted to him for the purpose of forming a family unit, had, according to the national law as established by the Regional Court (see paragraph 19 of the judgment), expired ex iure from the moment he no longer actually formed part of his spouse ’ s family unit. The fact that the first applicant resumed cohabitation with his wife in 1996 led the Regional Court to withdraw the exclusion order initially imposed on the first applicant. Without the exclusion order, the first applicant is allowed to enter the Netherlands .

5 . As to the question whether the second applicant and the children, who lawfully reside in the Netherlands, could be expected to follow the first applicant, even if this might entail a certain social hardship for them, no insurmountable obstacles seem to exist preventing them from settling with him in Turkey (see İbrahim Kaya v. the Netherlands (dec.), no. 44947/98, 6 November 2001). In this context it is further to be noted that the second applicant – even though she moved to the Netherlands at the age of 7 – is of Turkish origin and that, when the impugned decision became final, the applicants ’ children were still quite young – 8 and 2 years old respectively – and thus of an adaptable age. Even if the second applicant would decide not to move to Turkey with her children, it has not been established that it would be impossible for the first applicant to maintain some family life with his wife and children from that country.

6 . I further find relevant the Government ’ s explanation (summarised at paragraph 39 of the judgment) that, the first applicant having been convicted of a drug offence, his criminal record could normally be invoked against him for a period of ten years in any new application for a residence permit he might lodge (see Radovanovic v. Austria, no. 42703/98, § 37, 22 April 2004). However, in the assessment of whether his criminal record would indeed still be held against him, Article 8 of the Convention would be taken into account, which would not have been the case had the exclusion order initially imposed on the applicant remained in force.

7 . I find it difficult to conclude that the decisions taken at the national level were arbitrary. They were the result of the application of the “sliding scale principle” (see paragraphs 22-27 of the judgment), i.e. the longer an alien has lawfully resided in the Netherlands, the more serious a crime has to be before a refusal of continued residence may be justified. In accordance with this policy, an alien who, at the time he or she commits an offence, has been residing lawfully in the Netherlands for less than three years – like the first applicant in the present case – would be refused permission for continued residence if he or she was sentenced to an unsuspended prison sentence of more than nine months.

8 . To my mind, the weighing of the different interests involved does not lead to a clear and unavoidable conclusion in the present case. In other words, the conflicting arguments are more or less in balance and a decision in either direction is arguable. In these circumstances, it seems to me that it should be left to the national authorities to balance the interests involved. Since the applicants ’ interests have not been overlooked and reasonable and foreseeable legal principles were applied, I believe that the majority should have shown more restraint. Their conclusion sets aside the balancing exercise carried out by the national authorities without, however, giving a clear message capable of contributing to a fair national immigration policy.