On November 12, 2024, the European Court of Human Rights (ECtHR) held that an order deporting an Iraqi citizen from Denmark for six years amounted to a de facto lifetime ban on reentry, a disproportionate penalty that violated the right to respect to private and family life under article 8 of the European Convention on Human Rights (ECHR). (Sharafane v. Denmark, App. No. 5199/23.)
Background
ECHR article 8 provides that
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Under the case law of the ECtHR, foreigners who have been granted a right of residence qualify as “settled migrants,” and deportation following a criminal conviction must be evaluated for proportionality under ECHR article 8, particularly for those who were born and spent their childhood in the host country. The ECtHR has developed criteria to assess the compatibility of settled migrants’ deportation with article 8 of the Convention.
In the instant case, the applicant Sharafane, an Iraqi citizen who was born and resided in Denmark all his life, was convicted of possession with intent to distribute large quantities of cannabis and cocaine and sentenced to prison for two years and six months. While he spoke Kurdish in addition to Danish, he had never been to Iraq. (ECtHR Decision at ¶¶ 6, 7.)
Danish law provides that foreign nationals who commit serious crimes must be deported, except in circumstances where it would violate Denmark’s international obligations, such as ECHR article 8. (¶ 7.)
The court of first instance found that deporting Sharafane under the circumstances of this case would violate article 8. But an intermediate appellate court decided deportation and a six-year-ban on reentry was appropriate and consistent with Sharafane’s rights under the ECHR. (¶ 8.) Leave to appeal to the Supreme Court of Denmark was denied. (¶ 9.)
Sharafane brought the case before the ECtHR. He argued that because he was a citizen of Iraq, it was unlikely that he would ever receive a visa to Denmark again, and therefore the six-year reentry ban was a de facto lifetime ban that would violate his rights under ECHR article 8. (¶ 38.)
Ruling of the ECtHR
The ECtHR found the case admissible (¶ 36), and considered whether a six-year ban amounted to a de facto lifetime ban in this case. The court noted that Danish law divides countries whose nationals are subject to visa requirements into five groups, the most restrictive of which is Visa Group 5, countries deemed to pose a particularly high risk for illegal immigration into Denmark, namely Afghanistan, Eritrea, Iraq, Pakistan, Russia, Somalia and Syria. (¶¶ 25, 68.) Nationals of these countries “generally only qualify for a visa to enter Denmark if there are ‘extraordinary circumstances’, such as the death or terminal illness of a family member living in Denmark.” (¶ 68.)
The court noted statistics showing that nationals belonging to visa group 5 countries had no realistic possibility of entering Denmark even for a short-term visit. It concluded that Sharafane had no realistic prospect of entering or returning to Denmark after the expiration of a six-year reentry ban, and thus it amounted to a de facto lifetime ban. (¶ 72.) The court therefore found the reentry ban disproportionate and in violation of Sharafane’s rights under article 8. (¶ 75.)
ECtHR Cases Permitting Expulsion
The ECtHR has decided other cases where the expulsion of migrant convicts that were not found to violate ECHR article 8 because family circumstances created situations where it would be possible for them to later seek new visas to return to Denmark or where the expulsion was not considered disproportionate.
In Savuran v. Denmark, a Turkish national was deported for similar crimes to those of Sarafane and was issued a six-year prohibition on reentry. The court found the applicant failed to show that he would not be able to receive a visa after the six-year ban, and thus the expulsion did not violate article 8.
In Al-Habeeb v. Denmark, an Iraqi national was deported after repeated criminality, including a brutal assault in which he stabbed his wife several times. He was issued a 12-year prohibition on reentry to Denmark. The court found that the 12-year ban on reentry did not violate article 8, as “[t]he Court [found] no reason to question the finding of the domestic courts that the time-limited nature of the re-entry ban was a factor capable of rendering the applicant’s expulsion compatible with Article 8.”
In Winther v. Denmark, a Syrian national was convicted of violent assault and expelled for six years. Prior to the ECtHR hearing the case, the Danish Supreme Court had determined the deportation was proportionate, as the convict’s partner was legally able to accompany him to Syria or visit him there, and that the convict could visit or seek residence anew after the six-year expulsion. The ECtHR concluded
that the interference with the applicant’s private and family life was supported by relevant and sufficient reasons. . . . [A]t all levels of jurisdiction there was an explicit and thorough assessment of whether the expulsion order could be considered to be contrary to Denmark’s international obligations. . . . [W]here independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately weighed up the applicant’s personal interests against the more general public interest in the case, it is not for the Court to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities. The only exception to this is where there are shown to be strong reasons for doing so . . . .
Elin Hofverberg, Law Library of Congress
December 2, 2024
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