SECOND SECTION
CASE OF UDEH v. SWITZERLAND
(Application no. 12020/09)
JUDGMENT
(Extracts)
STRASBOURG
16 April 2013
This judgment is final but it may be subject to editorial revision.
UDEH v. SWITZERLAND JUDGMENT
1
In the case of Udeh v. Switzerland,
The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 4 December 2012 and 26 March 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 12020/09) against the Swiss
Confederation lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) on 3 March 2009 by the following applicants (“the
applicants”): Mr Kinsley Chike Udeh, a Nigerian national who was born in
1972 and lives in Switzerland (the first applicant), his ex-wife, Mrs Michèle
Udeh, a Swiss national who was born in 1984 (the second applicant), and
their daughters, Naira Johanna Udeh and Uzoma Elisa Udeh, who were born
in 2003 and have both Swiss and Nigerian nationality (the third and fourth
applicants).
2. The applicants were represented by Dr J. Rinceanu and Dr A. Noll,
lawyers practising in Freiburg (Germany) and Basle (Switzerland),
respectively. The Swiss Government (“the Government”) were represented
by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice
(European law and international human rights protection unit).
3. The applicants alleged in particular that the refusal to grant the first
applicant leave to remain breached their right to respect for their family life
within the meaning of Article 8 of the Convention.
4. On 17 September 2010 notice of the application was given to the
Government. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
5. On 1 February 2011 the Court’s Sections were reorganised. The
application was assigned to the Second Section (Rules 25 § 1 and 52 § 1 of
the Rules of Court).
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UDEH v. SWITZERLAND JUDGMENT
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. On 18 August 2001, the first applicant, under a false identity and
claiming that he was born in 1983, was sentenced by an Austrian court (the
Jugendgerichtshof in Vienna) to a suspended term of four months’
imprisonment for a drugs offence relating to the possession of a small
quantity of cocaine.
7. He entered Switzerland in November 2001. On 18 January 2002 the
competent Swiss authorities declared inadmissible his asylum application,
which had been lodged under a false identity. He left Switzerland at an
unknown date but returned there on 2 September 2003.
8. On 1 November 2003 the first applicant married a Swiss national who
had shortly before given birth to their twin daughters (the third and fourth
applicants). By virtue of his marriage he was granted leave to remain in
Switzerland (the couple have since got divorced, see paragraph 19 below).
9. On 6 August 2006 the first applicant was arrested in Germany for
drug trafficking and sentenced to 42 months’ imprisonment (judgment of
the District Court of Cleves (Germany) of 24 November 2006). The
competent authorities considered it established that he had attempted to
import 55 doses of pure cocaine, with a total weight of 257 grammes, by
swallowing the drug (bodypacking).
10. In a decision of 23 August 2007, the Office of Migration for the
Canton of Basle-Rural found that the first applicant’s leave to remain had
become null and void as, having been held in a German prison where he
was serving his sentence, he had been outside Switzerland for over six
months. In addition, the Office of Migration took the view that he should
not be re-issued with a permit, as the fact that he had been convicted and his
family were living on benefits constituted grounds for his removal.
11. Both the first applicant and his wife, in their own names and on
behalf of their children, challenged that decision first before the cantonal
government, which rejected their appeals, and then before the Basle-Rural
Cantonal Court, which also dismissed their appeals in a decision of
14 May 2008.
12. On 5 May 2008 the first applicant was granted early release from the
German prison where he had been serving his sentence.
13. In a judgment of 8 January 2009 the Federal Court dismissed an
appeal by the applicants at last instance. It pointed out that the first applicant
had twice been convicted of drugs offences. It found that the offence of
which he had been convicted in Germany carried sufficient weight for it not
to be relevant that a sentence imposed in Switzerland might have been
slightly less harsh. It further observed that the trafficking in question,
concerning more than 18 grammes of pure cocaine, constituted a serious
UDEH v. SWITZERLAND JUDGMENT
3
case within the meaning of section 19(2) of the Federal Narcotics and
Psychotropic Substances Act, punishable by at least one year’s
imprisonment. It further found that the fact that the first applicant had
offended on only two occasions was of little relevance for the examination
of the case.
The court nevertheless admitted that the applicants had been at pains to
overcome their reliance on benefits, but also observed that in the meantime
they had, on that basis, received a sum which totalled 165,000 Swiss francs
(CHF) (about 137,500 euros (EUR)). In addition, it noted that the first
applicant had been living with his family in Switzerland only since October
2003 and that he had no real professional activity, even though this was
probably connected to the fact that he had tuberculosis.
Moreover, the Federal Court took the view that, having regard to the first
applicant’s bleak job prospects, re-offending could not be ruled out. It
further considered that, as he did not speak German very well and mainly
socialised with migrants from his own country, he had not integrated in
Switzerland.
However, the Federal Court did not deny that the applicants enjoyed a
real and close family life. It found that the refusal to grant the first applicant
a residence permit would probably affect them badly, especially as they
could not be obliged to follow him to Nigeria. As far as the first applicant
was concerned, the court took the view that he still had an unbroken family
network in that country and that he would be able to re-integrate there quite
easily.
14. In a letter of 26 January 2009, the Office of Migration for the Canton
of Basle-Rural informed the first applicant that he had to leave Switzerland
by 31 March 2009.
15. In a decision of 10 March 2009 the President of the First Section
rejected a request for interim measures under Rule 39 of the Rules of Court.
16. Between 15 and 17 September 2009 the first applicant was placed in
detention pending his removal.
17. On 23 April 2010 the first applicant was officially declared to have
disappeared. On 25 September 2010 he was arrested by the authorities of
the Canton of Basle-Rural. In a decision of 28 September 2010 the
competent court of that Canton confirmed his detention pending removal
until 24 November 2010. In the meantime he separated from his wife. The
applicant nevertheless allegedly maintained some contact with his children.
The detention was subsequently extended. He was released on 25 January
2011.
18. On 25 January 2011 the Federal Office of Migration banned the first
applicant from entering Switzerland with effect until 26 January 2020. It
was possible for the ban to be temporarily suspended further to a reasoned
request and should it be deemed necessary (see paragraph 21 below). In a
letter of 21 August 2012 the first applicant’s representatives informed the
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UDEH v. SWITZERLAND JUDGMENT
Court that the decision of 25 January 2011 had become final. They added
that the first applicant was still living in Switzerland, but had separated from
his wife. They alleged that he did his best to maintain regular contact with
his children.
19. In a letter of 31 December 2012 one of the first applicant’s two
lawyers informed the Court that he and his Swiss wife had got divorced.
The lawyer also explained that he had a third child, a daughter born on
21 August 2012 from a relationship with another Swiss national. He was
now living with her and wanted to marry her as quickly as possible.
The lawyer attached a copy of a divorce-related judgment from the
Liestal District Court dated 27 September 2012, notified to the first
applicant’s other lawyer on 2 October 2012. It showed that custody had
been awarded to the mother but that the first applicant had access rights in
respect of his first two children, limited to one afternoon at least every two
weeks.
This new information was duly communicated to the parties and they
were invited to submit observations (see paragraphs 28 and 36 below).
II. RELEVANT DOMESTIC LAW
20. The right of abode of the spouse of a Swiss national, together with
the conditions to be satisfied for renewal of leave to remain, were governed
by the former Residence and Settlement of Aliens Act of 26 March 1931, of
which the relevant provisions read as follows:
Section 7(1)
“The foreign spouse of a Swiss national shall be entitled to obtain leave to remain
and further extension thereof. After five years of lawful and continuous residence, the
spouse shall be entitled to obtain authorisation to settle. Such right shall be forfeited
where there are grounds for expulsion.”
Section 10(1)
“Aliens may be expelled from Switzerland or from a Canton only on the following
grounds:
(a) where he or she has been convicted of a serious offence (crime or délit) by a
judicial authority;
...
(d) where the spouse, or any person whose needs he or she is required to meet,
becomes reliant, continuously and to a significant degree, on welfare benefits.”
Section 11(3)
“Expulsion shall be ordered only if it appears appropriate to the circumstances as a
whole ...”
UDEH v. SWITZERLAND JUDGMENT
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21. Section 67 of the Federal Act on Foreign Nationals of 16 December
2005 governs entry bans imposed on foreign nationals whose expulsion has
been decided. Sub-section 5 authorises the competent authority to suspend
an entry ban temporarily or indefinitely:
Section 67
“1. The [Federal Office of Migration] shall, subject to sub-section 5, order a ban on
entry against foreign nationals who have been issued with a removal order where:
(a) the removal order is immediately enforceable in accordance with section 64d(2),
(a)-(c); and
(b) the foreign national does not leave Switzerland within the time allowed.
2. The Office may order a ban on entry against foreign nationals who:
(a) have breached or threatened public safety and order in Switzerland or abroad;
(b) have caused costs to be incurred in terms of welfare benefits;
(c) have been detained in preparation for departure or pending deportation or have
been placed in coercive detention (sections 75-78).
3. The ban on entry shall be imposed for a maximum duration of five years. It may
be imposed for a longer period if the person concerned represents a serious threat to
public safety or order.
4. The Federal Office of Police (Fedpol) may impose a ban on the entry of any
foreign national in order to safeguard Switzerland’s internal or external security; it
shall first consult the Federal Intelligence Service (FIS). Fedpol may impose a ban on
entry for a period of more than five years or, in serious cases, for an unlimited
duration.
5. The authority taking the decision may refrain from imposing a ban on entry, or
may suspend such ban temporarily or indefinitely, on humanitarian grounds or for
other good cause.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
22. The applicants complained that the enforcement of the refusal to
grant the first applicant leave to remain would ruin their family life, relying
on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. 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.”
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UDEH v. SWITZERLAND JUDGMENT
23. The Government contested that argument.
...
B. Merits
1. The parties’ submissions
(a) The applicants
25. The applicants did not deny that the first applicant’s expulsion had a
sufficient legal basis and pursued legitimate aims within the meaning of
Article 8 § 2 of the Convention. However, unlike the Government, they
argued that the impugned measure was not necessary in a democratic
society.
26. Since the Swiss courts and the Government had sought to rely on the
fact that the applicants were dependent on welfare benefits, they alleged that
the first applicant had found employment quite quickly after being released
in May 2008. It was thus not to be excluded, from that point in time, that
they would not need to be supported by the State.
27. The applicants further argued that the first applicant had committed
only one serious offence, for which he had served his sentence in full. They
alleged that his conduct in prison had been exemplary, as shown by his
early release. In addition, they explained that he had never committed the
slightest offence in Switzerland – the main offence of which he had been
convicted having been committed in Germany – and that his conduct since
his release had also been irreproachable. As a result, he could no longer be
regarded as a threat to public order or safety in Switzerland.
28. The applicants also submitted that the twin daughters should, under
Article 8 of the Convention, be entitled to regular contact with their father.
Moreover, the first applicant had become the father of a third child in 2012,
from a relationship with another Swiss national. He was now living with her
and they hoped to get married as soon as possible.
29. In view of the foregoing, the applicants were convinced that the
impugned measure was disproportionate and was not therefore necessary in
a democratic society.
(b) The Government
30. Referring to the above-cited provisions (see paragraphs 20 et seq.
above), the Government submitted that the interference was in accordance
with the law. They further argued that the first applicant’s expulsion
pursued legitimate aims within the meaning of Article 8 § 2, namely, the
prevention of disorder or crime, public safety, the economic well-being of
the country and the protection of the rights and freedoms of others.
31. The Government were convinced that the measure was also
necessary in a democratic society. They took the view that, having regard to
UDEH v. SWITZERLAND JUDGMENT
7
the quality of the drugs transported (257 grammes of pure cocaine) and the
harsh sentences (4 then 42 months imprisonment for drugs offences), the
first applicant’s case was a serious one. They pointed out in this connection
that the Court had always been very strict vis-à-vis individuals who had
been convicted of drug-related offences.
32. The Government accepted that, according to their information, the
first applicant had not been convicted again after serving his sentence. They
nevertheless argued that the fact he had been sentenced to 42 months’
imprisonment suggested that he would remain a threat to public order and
safety. They added in this connection that neither his marriage nor his job
had prevented him from committing the offence in question.
33. The Government further pointed out that the applicants had lived on
benefits for significant periods.
34. The Government also observed that the first applicant had been
raised in Nigeria and had entered Switzerland at the age of 21. He should
therefore still have a family network in that country and could not credibly
claim that his social ties with Nigeria had become broken on account of the
years he had spent in Switzerland and Germany. There was no indication
that he would no longer be able to integrate into Nigerian society.
Furthermore, the first applicant had not really settled professionally in
Switzerland. According to the Federal Court, he could not speak German
very well and socialised mainly with his compatriots.
35. The Government further observed that the first and second applicants
were now divorced. The daughters were living with their mother and the
contacts that the first applicant claimed to have maintained would not
suddenly be made impossible in the event of his removal.
36. As regards, moreover, the first applicant’s relationship with his new
girlfriend, whom he wished to marry and with whom he had a child, the
Government submitted that it had begun at a time when he had no residence
permit and no prospect of obtaining one, as his girlfriend must have known.
The Government took the view that, without wishing to speculate as to the
decision of the parents concerning that third child, it was still very small and
could integrate into Nigerian society if need be. Moreover, according to
information available to the Government, the child’s paternity had not been
recognised by the first applicant.
37. The Government concluded that the Swiss authorities had quite
rightly, after a detailed examination of the case, held that the first
applicant’s expulsion was a measure that was necessary in a democratic
society for the purposes of Article 8 § 2 of the Convention. The authorities
could not therefore be found to have overstepped the margin of appreciation
afforded to them in the present case. Accordingly, there had been no
violation of Article 8.
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UDEH v. SWITZERLAND JUDGMENT
2. The Court’s assessment
(a) Interference with the right protected by Article 8
38. The Court reiterates that the Convention does not guarantee the right
of an alien to enter, or to reside in, a particular country. However, the
removal of a person from a country where close members of his family are
living may amount to an infringement of the right to respect for family life
as guaranteed in Article 8 § 1 of the Convention (see, to this effect,
Moustaquim v. Belgium, 18 February 1991, § 36, Series A no. 193).
39. In the present case, the Federal Court, in its judgment of 8 January
2009, confirmed the first applicant’s expulsion. In addition, the Federal
Office of Migration banned him from entering Switzerland with effect until
26 January 2020. Those decisions entail his separation from his twin
daughters, who have Swiss nationality. He has thus sustained interference
with his right to respect for his family life, even though the removal
decision has not yet been enforced.
(b) Whether the interference was justified
40. Such an interference will infringe the Convention if it does not meet
the requirements of paragraph 2 of Article 8. It is therefore necessary to
determine whether it was “in accordance with the law”, justified by one or
more of the legitimate aims set out in that paragraph, and “necessary in a
democratic society”.
(i) “In accordance with the law”
41. It is not in dispute that the decision to remove the first applicant
from Switzerland was based on the relevant provisions of the Residence and
Settlement of Aliens Act (see paragraph 20 above).
(ii) Legitimate aim
42. Nor is it a matter of dispute that the interference at issue pursued
aims that were fully compatible with the Convention, in particular “the
prevention of disorder or crime”.
(iii) Necessary in a democratic society
(α) General principles
43. It thus remains to be ascertained whether the measure was necessary
in a democratic society.
44. At the outset, it should be reiterated that, as a matter of wellestablished international law and subject to their treaty obligations, States
are entitled to control the entry and residence of aliens on their territories
(see, among many other authorities, Abdulaziz, Cabales and Balkandali
v. the United Kingdom, § 67, 28 May 1985, Series A no. 94, and Boujlifa
UDEH v. SWITZERLAND JUDGMENT
9
v. France, 21 October 1997, § 42, Reports of Judgments and Decisions
1997-VI). The Convention does not guarantee the right of an alien to enter
or to reside in a particular country and, in pursuance of their task of
maintaining public order, Contracting States have the power to expel an
alien convicted of criminal offences. However, their decisions in this field
must, in so far as they may interfere with a right protected under
paragraph 1 of Article 8, be in accordance with the law and necessary in a
democratic society, that is to say, justified by a pressing social need and, in
particular, proportionate to the legitimate aim pursued (see Mehemi
v. France, 26 September 1997, § 34, Reports 1997-VI; Dalia v. France,
19 February 1998, § 52, Reports 1998-I; Boultif v. Switzerland,
no. 54273/00, § 46, ECHR 2001-IX; and Slivenko v. Latvia [GC],
no. 48321/99, § 113, ECHR 2003-X).
45. In the case of Üner v. the Netherlands ([GC], no. 46410/99, §§ 5460, ECHR 2006-XII), the Court had occasion to sum up the criteria which
should guide domestic courts in such cases (§§ 57 et seq.):
– the nature and seriousness of the offence committed by the applicant;
– the length of the applicant’s stay in the country from which he or she is to
be expelled;
– the time that has elapsed since the offence was committed and the
applicant’s conduct during that period;
– the nationalities of the various persons concerned;
– the applicant’s family situation, such as the length of the marriage, and
other factors showing the effectiveness of a couple’s family life;
– whether the spouse knew about the offence at the time when he or she
entered into a family relationship;
– whether there are children of the marriage, and if so, their age;
– the seriousness of the difficulties which the spouse is likely to encounter
in the country to which the applicant is to be expelled;
– the best interests and well-being of the children, in particular the
seriousness of the difficulties which any children of the applicant are likely
to encounter in the country to which the applicant is to be expelled; and
– the solidity of social, cultural and family ties with the host country and
with the country of destination.
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UDEH v. SWITZERLAND JUDGMENT
(β) Application of those principles in the present case
46. As regards the present case, the Court recognises that the first
applicant’s conviction on 24 November 2006 by the District Court of Cleves
(Germany) for a drugs offence (42 months’ imprisonment for attempting to
import 55 doses of pure cocaine, totalling 257 grammes) is admittedly a
factor that weighs heavily against him. As to his conviction of 18 August
2001, it was decided by the Youth Court (Jugendgerichtshof) of Vienna,
which had been misled by the first applicant as to his identity and age (see
paragraph 6 above). In reality, he committed the offence in question as an
adult, when he was already 29. Accordingly, it was not a matter of juvenile
crime. The offence was not punished very seriously, by just four months’
imprisonment. It was established that the first applicant had been carrying
only a small amount of cocaine. Moreover, he was given a suspended
sentence. The Court thus finds that this conviction should be seen for what
it is.
47. It should be observed that the first applicant’s criminal behaviour
was confined to those two acts. The present case can thus be distinguished,
in particular, from that of Emre v. Switzerland (no. 42034/04, §§ 72-76,
22 May 2008), where the applicant had been convicted of over 30 offences.
It cannot therefore be said that the first applicant displayed any real criminal
drive or potential.
48. The Court further observes that the first applicant entered
Switzerland for the first time in November 2001 and filed an asylum
application there unsuccessfully. After leaving Switzerland at an
unspecified date, he returned in September 2003 and married a Swiss
national there two months later. He stayed in the country until August 2006,
when he was arrested and taken into custody in Germany. On 5 May 2008,
after serving his sentence and benefitting from early release, he went back
to Switzerland and has been living there to date (see paragraph 12 above).
When the Federal Court delivered its judgment, on 8 January 2009, he had
thus been in Switzerland for over three and a half years. Today, at the time
of the adoption of the present judgment, if the removal order has not been
enforced, the total length of his residence in Switzerland will have
amounted to seven and a half years, which is a considerable length of time
in a person’s life. There does not seem to be any doubt that Switzerland has,
for quite a long time, been the centre of the first applicant’s private and
family life.
49. The Court observes that it was not in dispute between the parties that
the first applicant’s conduct in prison and after his release on 5 May 2008
had been irreproachable. That positive evolution, and in particular the fact
that he was released on licence after serving only part of his sentence, can
be taken into account in weighing up the interests at stake (see, in particular,
Maslov, cited above, §§ 87 et seq., and Emre v. Switzerland (no. 2),
no. 5056/10, § 74, 11 October 2011). In this connection, the Court regards
UDEH v. SWITZERLAND JUDGMENT
11
as speculative the Government’s argument that the fact that he had been
sentenced to 42 months’ imprisonment suggested that he would remain a
threat to public order and safety.
50. The Court would point out that the Federal Court did not call into
question the fact that the first applicant had a genuine and close relationship
with his ex-wife and the children they had together. Nor was that disputed
by the Government. The couple have since got divorced. However, it can
been seen, in particular, from the first applicant’s letters of 21 August and
31 December 2012 that he has endeavoured to maintain regular contact with
his children. The divorce-related judgment of 27 September 2012 from the
Liestal District Court further shows that custody of the two children was
awarded to the mother but that the first applicant was granted access rights,
currently limited to one afternoon at least every two weeks. Accordingly,
the Court finds that the applicants are entitled to rely on Article 8 of the
Convention; moreover, the principal offence was committed by the first
applicant after the two children had been conceived; in other words, his wife
could not have been aware of it at the time when the family relationship was
created, this being a factor of considerable importance in the assessment of
the present case. However, as regards the first applicant’s relationship with
his new girlfriend and the birth of a child from that relationship, those facts
cannot be taken into consideration in the Court’s examination, given that
they occurred at a time when his right to stay in Switzerland was already
insecure. He is not therefore entitled to rely on this situation in the context
of the present case, even if he does get married again.
51. The Federal Court further observed that the first applicant had been
raised in Nigeria and that he should therefore still have an unbroken family
network in that country. It took the view that he would be able to integrate
quite easily in his country of origin. By contrast, he was not very well
integrated in Switzerland, neither professionally nor socially, and did not
speak German very well. It is not for the Court to call into question those
allegations, which are not a matter of dispute between the parties. It would
simply point out that the Federal Court recognised the efforts made by the
applicants to overcome their reliance on benefits and that it did not rule out
that the first applicant’s illness (tuberculosis) might have contributed to the
fact that he had no real gainful activity.
52. The Court further observes that the twin daughters, who have Swiss
nationality, were born in 2003. The first applicant’s removal is likely to
result in their being brought up separated from their father. According to the
Federal Court, the second, third and fourth applicants could hardly be
obliged to follow the first applicant to Nigeria. In any event, the Court takes
the view that it is in the daughters’ best interests to grow up with both
parents and, as the latter are now divorced, the only way for regular contact
to be maintained between the first applicant and his two children is to
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UDEH v. SWITZERLAND JUDGMENT
authorise him to remain in Switzerland, given that the mother could not be
expected to follow him to Nigeria with their two children.
53. Lastly, the Government claimed that the contacts between the first
applicant and his two daughters would not be rendered impossible if he
were to return to Nigeria. The Court observes that, in a decision of
25 January 2011, the Federal Office of Migration imposed on the first
applicant a ban on entering Switzerland with effect until 26 January 2020.
As to the possibility for the applicants to request a temporary or indefinite
suspension of the expulsion measure, a possibility that arose from the said
decision (see paragraphs 18 and 21 above), the Court takes the view that,
even if the competent authorities were to grant such a request, the temporary
measures could by no means be regarded as replacing the applicants’ right
to enjoy their right to live together, which constitutes one of the
fundamental aspects of the right to respect for family life (see, mutatis
mutandis, Agraw v. Switzerland, no. 3295/06, § 51, and Mengesha Kimfe
v. Switzerland, no. 24404/05, §§ 69-72, both of 29 July 2010).
54. In view of the foregoing, and particularly having regard to the first
applicant’s first two children, to the genuine family relationship between
them and to the fact that the first applicant committed only one serious
offence and his subsequent conduct has been irreproachable, suggesting a
positive evolution in the future, the Court finds that the respondent State
overstepped the margin of appreciation afforded to it in the present case.
55. Accordingly, there would be a violation of Article 8 of the
Convention in the event of the first applicant’s expulsion.
...
FOR THESE REASONS, THE COURT
...
2. Holds, by five votes to two, that there would be a violation of Article 8
of the Convention in the event of the first applicant’s expulsion;
...
UDEH v. SWITZERLAND JUDGMENT
13
Done in French, and notified in writing on 16 April 2013, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith
Registrar
Guido Raimondi
President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the separate opinion of Judges Jočienė and Lorenzen is
annexed to the present judgment.
G.R.
S.H.N.
14
UDEH v. SWITZERLAND JUDGMENT – SEPARATE OPINION
JOINT DISSENTING OPINION OF JUDGES JOČIENE AND
LORENZEN
We are unable to agree with the majority that the first applicant’s
expulsion to Nigeria would entail a violation of Article 8 of the Convention.
The relevant facts of the case can be summarised as follows.
The first applicant, who is a Nigerian national, arrived in Switzerland in
November 2001 at the age of 29 and under a false identity. Prior to his
arrival he had been convicted in Austria of a drugs offence and given a
suspended sentence of four months’ imprisonment. After his application for
asylum was rejected by the Swiss authorities he left Switzerland at an
unknown date, but returned in September 2003 and, shortly afterwards,
married a Swiss national with whom he has twin daughters, born the same
year. Less than three years later he was detained and convicted in Germany
on a serious charge of drug trafficking, for which he was sentenced to three
years and six months’ imprisonment. After his release on licence in May
2008 he returned to live in Switzerland with his wife and daughters. He
separated from his wife in 2010 and they got divorced in October 2012.
In evaluating the criteria which are relevant in deciding whether an
alien’s expulsion is justified under Article 8 of the Convention, we consider
that the first applicant’s conviction in Germany for drug trafficking weighs
heavily against him. Thus, the Court has often in the sphere of drug dealing
stressed its understanding of the domestic authorities’ firmness as regards
those actively involved in the spread of this scourge (see, for instance,
Maslov v. Austria [GC], no. 1638/03, § 80, ECHR 2008). We also attach
importance to the fact that the first applicant arrived in Switzerland as an
adult and under a false identity, that his stay in that country prior to his
conviction in Germany was relatively short and that he has now lived apart
from his Swiss wife for some years. We totally agree with the majority that
the fact that he is now living with another woman, with whom he had a
daughter in August 2012, cannot be taken into account.
It is true that expulsion to Nigeria would make it difficult for the first
applicant to maintain regular contacts with his daughters, although it does
not appear to be excluded that access rights could be exercised in Nigeria, or
in Switzerland, by way of a temporary permit to stay there. In any event, his
difficulties in that respect cannot in our opinion outweigh the abovementioned elements, which militate against him.
In conclusion, we do not find that the Swiss authorities overstepped the
margin of appreciation afforded to them in this area. It follows that there has
been no violation of Article 8 of the Convention.