JOINT DISSENTING OPINION OF JUDGES PEJCHAL, RANZONI AND YÃœKSEL

1. In the present case, we are, with all due respect, unable to agree with the majority’s conclusion that there has been no violation of Article 8. For the reasons set out below, we are of the opinion that there has indeed been a violation of Article 8.

2. At the outset, we should like to emphasise that we agree with the fundamentally subsidiary role of the Court within the Convention system. The Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility for securing the rights and freedoms defined in the Convention and the Protocols thereto, and in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the Court. While the subsidiary role of the Court is fundamental to the Convention system, it does not mean, however, that the actions and conduct of national authorities are beyond the scrutiny of the Court (see Abdi v. Denmark , no. 41643/19, §§ 30-45, 14 September 2021 (not yet final)).

3. While bearing in mind the importance of this principle, we are of the opinion that the majority’s reasoning in the present case is not consistent with the case-law on Article 8 concerning the expulsion of settled migrants combined with a permanent ban on their re-entry, for the following reasons.

4. Firstly, we are, respectfully, of the view that the majority have not properly applied the Court’s case-law and not given sufficient weight to some of the criteria which the Court has found to be relevant. In particular, while we fully agree, as set out in paragraph 36 of the judgment, that “the duration of a ban on re-entry is an element to which it has attached importance in its case-law”, the majority have failed to assess this element in practice. No mention is made in the subsequent parts of the judgment of the fact that the applicant was expelled from Denmark with exactly such a ban on re-entry, and not merely with a temporary re-entry ban, but with a permanent one.

5. In Bousarra v. France (no. 25672/07, § 53, 23 September 2010) the Court held that it could not reasonably be argued that, as a result of the offences committed, the applicant constituted an extremely serious threat to ‎ ‎ pu blic order (“une menace d’une gravité extrême pour l’ordre public”) which would have justified a measure of ‎ ‎ final expulsion from ‎ ‎ French territory (see, similarly, Ezzouhdi v. France , no. 47160/99, § 34, 13 February 2001; see also Keles v. Germany , no. 32231/02, § 66, 27 October 2005). While we can accept that the nature of the crime committed by the applicant and resulting in his expulsion was such as to pose a serious threat to public order (see paragraph 37 of the judgment), we cannot agree that it was of such “extreme gravity to ‎ ‎ public order ” as to justify his permanent , that is , life - long , ban from the country where he was born and has spent his entire life . In any event , the majority did not address this aspect and apparently attached no weigh t to the permanent re-entry ban.

6. Secondly, to our minds, the majority have not adequately compared the facts of the present case with previous cases, including cases where the Court found a violation of Article 8 and others where it found no violation. For example, the above-mentioned Bousarra case concerned a settled migrant who was ‎ ‎ sentenced to five ‎ ‎ years’ ‎ ‎ imprisonment for drug offences , extortion , kidnapping of a person and carrying a ‎ ‎ prohibited weapon (see Bousarra , cited above, § 9). It seems to us that the crimes committed by the applicant in the present case were of a similar nature and, therefore, applying the Bousarra logic, cannot be qualified as being “an extremely serious threat to ‎ ‎ public order ” such as to justify a permanent re-entry ban.

7. In the very recent case of Abdi v. Denmark (cited above), the Court found a violation of Article 8 where the applicant had been sentenced to two years and six months’ imprisonment following his conviction on one count of illegally possessing a fully-loaded firearm and ammunition in a public place, jointly with three other persons, and on two counts of violating the Controlled Substances Act. The applicant had two prior convictions as a minor for robbery and burglary. After reaching the age of majority, the applicant was convicted and fined seven times for violations of the Act and for driving under the influence of psychedelic substances. He had arrived in Denmark from Somalia at the age of four and had lawfully resided there for approximately twenty years. He had no family in Somalia, but the Court noted that he did have knowledge of the Somali language, customs and culture, so that he would not be completely unqualified to manage in his country of origin.

8. We are of the view that the facts of the above case bear a striking similarity to those of the present case. As the majority rightly observe, when assessing the criterion of “the nature and seriousness of the offence” “the Court has never set a minimum requirement as to the sentence or seriousness of the crime which ultimately results in expulsion” (see paragraph 36 of the present judgment, citing Munir Johana v. Denmark , no. 85603/18, § 53, 12 January 2021). While we share the majority’s view that the seriousness of the offence must be examined on a case-by-case basis, the Court must nevertheless ensure consistency in its case-law when assessing similar cases. In our view, it is difficult to reconcile the Court’s finding of violations of Article 8 in Abdi and Bousarra with the majority’s finding of no violation in the present case, where the applicant was sentenced to four years’ imprisonment.

9. Likewise, with regard to other considerations, we do not see sufficient factual elements to distinguish the present case from, in particular, that of Abdi . In the latter case, the applicant also posed a serious threat to public order (see Abdi , cited above, § 39). Furthermore, in both cases the applicants were not previously warned about the possibility of expulsion or had a conditional expulsion order imposed, an aspect to which the Court has attached importance in its case-law (ibid., § 41, with further references to Keles v. Germany , no. 32231/02, 27 October 2005; and Munir Johana, cited above). Against this background, we fail to understand how the majority in the present case could come to a different conclusion than in the Abdi case.

10. Moreover, at paragraph 37 of its reasoning, the majority observe that the present case resembles the situation in Balogun v. the United Kingdom (no. 60286/09, 10 April 2012), where the Court found no violation of Article 8 of the Convention. In our view, however, the present case is distinguishable from Balogun in several regards . In the latter case the applicant’s ties to both the United Kingdom and Nigeria could be described as limited, even if, on balance, the applicant had stronger ties to the host country (see Balogun , cited above, § 52). In contrast, the applicant in the present case has very strong ties to the host country, where he was born and raised, but only “certain”, extremely limited, ties to his country of origin (see paragraph 9) . In our opinion, therefore, the assessment of the criterion of “the solidity of social, cultural and family ties with the host country and with the country of destination” must necessarily be different in the present case to what it was in the Balogun case.

11. It is also to be noted that the Balogun case concerned an applicant who had several previous convictions for, inter alia, drug-related offences, most of which had been committed at an adult age (see Balogun , cited above, § 49). What is more, Balogun did not even concern a permanent entry ban.

12. Thirdly, we are of the view that the majority’s finding at paragraph 34 of the judgment exhibits a misreading of the High Court of Denmark’s reasoning in respect of the criterion “the solidity of social, cultural and family ties with the host country and with the country of destination”. The High Court referred to the applicant`s knowledge of the Kurdish language to show that he had ties to the culture and customs of Turkey. However, the majority has transposed this reasoning into the judgment as evidence that the applicant had the prerequisites for establishing a life in Turkey (see paragraph 34).

13. Fourthly, so far as the High Court’s proportionality assessment is concerned, the majority hold “that ‘very serious reasons’ were adduced by the national authorities when assessing [the applicant’s] case” (see paragraph 38 of the judgment). However, while the High Court observed that “there is no doubt that expulsion from Denmark combined with a permanent re-entry ban would be a particular burden on him due to his ties with Denmark” (see paragraph 9), it did not undertake any assessment of whether the permanent nature of the applicant’s ban on re-entry was proportionate. In fact, with the exception of the seriousness of the offences at issue, it did not advance any element constituting “very serious reasons”. Rather, it simply stated that expulsion with a permanent re-entry ban would “not for certain be a disproportionate sanction” (ibid.). Such a test, however, does not meet the Convention requirements as regards settled migrants who have lawfully spent all or the major part of their childhood and youth in the host country. The Court has found that very serious reasons are required to justify expulsion of such migrants (see, inter alia, Maslov v. Austria [GC], no. 1638/03, § 75, ECHR 2008). Neither the High Court nor the Chamber majority have actually adduced and properly assessed such “very serious reasons”. They have also failed to establish that exceptional circumstances existed within the meaning of the Bousarra case-law (see paragraph 5 above), namely whether the applicant constituted “an extremely serious threat to ‎ ‎ public order ” justifying a permanent re - entry ban .

14. In this context, the majority state that “all levels of jurisdiction explicitly and thoroughly assessed” whether the expulsion, with a permanent re-entry ban, was contrary to Denmark’s international obligations (see paragraph 38 of the judgment). It is, however, interesting to note that the “thorough assessment” also applies to the District Court, which issued the applicant only with a warning about expulsion (see paragraph 6) and thereby refrained from imposing an unconditional or even permanent re-entry ban on a settled migrant.

15. Furthermore, in the literal sense, the applicant cannot even be described as a “migrant” because, having been born and raised in Denmark, he never moved from a country of “origin” to a “host” country, but has been part of the Danish community since birth. We are of course aware that in the Court’s case-law the term “migrant” has been applied also to persons of foreign nationality who have lawfully spent all of their childhood and youth in a host country (see paragraph 12 above). However, as already argued elsewhere (see, inter alia , Judge Ranzoni’s dissenting opinion in Pormes v. the Netherlands , no. 25402/14, 28 July 2020, paragraph 18 with further references), if such a person has never lived in a country other than the “host” country, or done so for only a short part of his or her early childhood, it is this “host” country which should bear responsibility for the person’s upbringing and his or her criminal behaviour. It should keep both nationals who have committed serious crimes and so-called “settled migrants” who have committed similar crimes. That would be more just, and compatible with the spirit of the Preamble to the Convention, notably the member States’ “profound belief in those fundamental freedoms which are the foundation of justice and peace”.

16. In sum, when viewing the facts of this case, we are unable to conclude that the national authorities undertook a thorough examination of all the circumstances, adequately adduced “very serious reasons” and struck an appropriate balance. Likewise, we cannot share the majority’s assessment, which is likely to threaten the consistency of the Court’s established case-law under Article 8 concerning the expulsion of settled migrants combined with a permanent ban on re-entry. For these reasons, we have voted for finding a violation of Article 8.