issued by the Registrar of the Court
ECHR 073 (2011)
28.06.2011
If Norway expelled the foreign mother of two young children it
would violate the Convention
In today’s Chamber judgment in the case Nunez v. Norway (application no. 55597/09),
which is not final1, the European Court of Human Rights held, by a majority, that there
would be:
A violation of Article 8 (right to protection of private and family life) of the
European Convention on Human Rights, if the applicant were expelled from Norway.
The case concerned a complaint of a national of the Dominican Republic that an order to
expel her from Norway would separate her from her small children living in Norway.
Principal facts
The applicant, Mirtha Ledy de Leon Nunez, is a Dominican national who was born in 1974
and lives in Oslo (Norway).
She first arrived in Norway in January 1996. Fined for shop-lifting, she was deported
from Norway in March 1996 with a two-year ban on her re-entry into the country. Four
months later, she returned to Norway with a different passport bearing different names.
In October the same year she married a Norwegian national and applied for a residence
permit stating that she had never visited Norway before and had no previous criminal
convictions.
Ms Nunez was granted first a work permit and then, in 2000, a settlement permit.
Having split up with her husband, she started living with a national of the Dominican
Republic in 2001 and together they had two daughters born respectively in 2002 and
2003.
In December 2001, while Ms Nunez was working at a hairdressing saloon, the police
apprehended her, acting upon a tip off that she had previously been in Norway under a
different name. Ms Nunez confessed to having used the second passport deliberately in
order to live in Norway despite the prohibition imposed by the authorities in 1996.
In April 2005, the Directorate of Immigration revoked her permits and decided that she
should be expelled and prohibited from re-entry for two years. In the meantime, in
October 2005, Ms Nunez and the father of her children separated. She was then given
responsibility for the daily care of the children until, in May 2007, it was transferred to
the father who was also granted sole parental responsibility until final judgment. Ms
Nunez unsuccessfully challenged in court her deportation order, the Supreme Court
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month
period following its delivery, any party may request that the case be referred to the Grand Chamber of the
Court. If such a request is made, a panel of five judges considers whether the case deserves further
examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral
request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for
supervision of its execution. Further information about the execution process can be found here:
www.coe.int/t/dghl/monitoring/execution
having delivered in April 2009 the final judgment upholding the decision to expel her and
ban her from Norwegian territory for two years.
Complaints, procedure and composition of the Court
Relying on Article 8, Ms Nunez complained that the order to deport her from Norway,
which also precluded her re-entry for a period of two years, was in breach of her right to
family life as it would result in separating her from her small children.
The application was lodged with the European Court of Human Rights on 19 October
2009.
Judgment was given by a Chamber of seven, composed as follows:
Nicolas Bratza (the United Kingdom), President,
Lech Garlicki (Poland),
Ljiljana Mijović (Bosnia and Herzegovina),
Sverre Erik Jebens (Norway),
Päivi Hirvelä (Finland),
Ledi Bianku (Albania),
Vincent A. de Gaetano (Malta), Judges,
and also Fatoş Aracı, Deputy Section Registrar.
Decision of the Court
Family life (Article 8)
The Court recalled that the Convention did not impose a general obligation on States to
respect immigrants’ choice of country of residence and to authorise family reunion. Thus,
States’ obligations to admit on their territory relatives of people residing there varied
according to the personal circumstances of the individuals concerned. Expulsion, too,
was not as such contrary to the Convention.
Ms Nunez had breached the two-year ban on her re-entry into Norway by returning there
four months after she had been expelled. She had intentionally given misleading
information about her identity, previous stay in Norway and earlier convictions, and had
thus managed to obtain residence and work permits to which she had not been entitled.
She had therefore lived and worked in Norway unlawfully since she had re-entered the
country and, therefore, had not been able to reasonably expect to remain lawfully there.
Until her first entry into Norway, she had lived all her life in the Dominican Republic, and
she had had two children born out of her relationship with another national of the
Dominican Republic. Consequently, her links with her home country had remained strong
and could not be outweighed by the links she had formed in Norway through unlawful
stay and without any legitimate expectation to remain there.
Examinining Ms Nunez’s children best interest, however, the Court noted that Ms Nunez
had been the one who had primarily cared for them since their birth until 2007 when
their father had been granted custody. Further, in accordance with the domestic courts’
decision, the children would have remained in Norway where they had lived all their life
and where their father, a settled immigrant, lived. In addition, the children had certainly
suffered as a result of their parents’ separation, and from having been moved from their
mother’s home to that of their father, and of the threat of their mother being expelled. It
would be difficult for them to understand the reasons if they were to be separated from
their mother. Moreover, although Ms Nunez had admitted to the police in December
2001 that she had entered Norway unlawfully, the authorities had ordered her expulsion
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almost four years later, which could not be seen as swift and efficient immigration
control.
In view of the children’s long-lasting and strong bond to their mother, the decision
granting their custody to their father, the stress they had experienced and the long time
it had taken the authorities to decide to expel Ms Nunez and ban her from re-entry into
the country, the Court concluded that – in the concrete and expectional circumstances of
her case - if Ms Nunez were expelled and prohibited from entering the country for two
years, it would have an excessively negative impact on her children. Therefore, the
authorities had not struck a fair balance between the public interest in ensuring effective
immigration control and Ms Nunez’s need to remain in Norway in order to continue to
have contact with her children, in violation of Article 8.
The Court indicated to the Norwegian Government that it would be desirable not to expel
Ms Nunez during the period when the judgment was not yet final.
Separate opinions
Judge Jebens expressed a concurring opinion and judges Mijović and De Gaetano
expressed a joint dissenting opinion, which can be found at the end of the judgment.
The judgment is available only in English.
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The European Court of Human Rights was set up in Strasbourg by the Council of
Europe Member States in 1959 to deal with alleged violations of the 1950 European
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