Üner v the Netherlands: Expulsion of long-term immigrants and the right to respect for private and family life

Human Rights Law Review

Volumn 8, Issue 1, 2008, Pages 185-196

  Steinorth, Charlotte ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

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EID: 40249108638     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngm043     Document Type: Article

References (61)

1. Application No. 46410/99; Judgment of 18 October 2006; (2007) 45 EHRR 14.
2. Article 8 of the ECHR provides: 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.
3. The only provision prohibiting the expulsion of non-nationals in the ECHR is contained in Article 4 of Protocol No. 4 which proscribes the collective expulsion of aliens.
4. In the early expulsion cases the ECtHR only considered whether an expulsion interfered with the right to respect for family life. See in this sense the case-law analysed in Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995) at 333-4.
5. In the case of C v Belgium, infra n. 6, the ECtHR had for the first time regard to both the private and family life aspect of Article 8.
6. A 193 (1991); (1991) 13 EHRR 802.
7. In the decade between 1991 and 2001 more than 10 cases came before the ECtHR concerning the expulsion of long-term immigrants. In a considerable number of these cases the ECtHR found no violation of Article 8: Boughanemi v France 1996-II 593
8. (1996) 22 EHRR 228, C v Belgium 1996-III 915
9. (2001) 32 EHRR 19, Bouchelkia v France 1997-I 47
10. (1998) 25 EHRR 686, El Boujaïdi v France 1997-VI 1980
11. (2000) 30 EHRR 223, Boujlifa v France 1997-VI 2250
12. (2000) 30 EHRR 419, Dalia v France 1998-176
13. (2001) 33 EHRR 26, and Baghli v France 1999-VIII 169
14. (2001) 33 EHRR 32. In contrast, the ECtHR held that Article 8 had been violated in: Moustaqium v Belgium A 193 (1991)
15. (1991) 13 EHRR 802, Beldjoudi v France A 234-A
16. (1992) 14 EHRR 801, Nasri v France A 320-B; (1996) 21 EHRR 458, Mehemi v France 1997-VI 1959; (2000) 30 EHRR 739,
17. and Ezzouhdi v France, Application No. 47160/99, Judgment of 13 February 2001, (unreported). Among the more recent cases decided in 2005 and 2006 are Keles v Germany, Application No. 32231/02, Judgment of 27 October 2005
18. (2007) 44 EHRR 12, in which the ECtHR found a violation of Article 8, and Aoulmi v France, Application No. 50278/99, Judgment of 17 January 2006 in which the ECtHR found no violation.
19. For a systematic analysis of the ECtHR's differing case-law, see Dembour, 'Human Rights Law and National Sovereignty in Collusion: The Plight of Quasi-nationals at Strasbourg', (2003) 21 Netherlands Quarterly of Human Rights 63 at 63-98.
20. See also Sherlock, 'Deportation of Aliens and Article 8 ECHR', (1998) 23 European Law Review (Human Rights Survey) 62.
21. See Dembour, supra n. 7 at 73.
22. See also McHarg, 'Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights', (1999) 62 Modern Law Review 671 at 694.
23. For criticism from members of the ECtHR see in particular the Dissenting Opinion of Judge Martens in Boughanemi, and the Joint Dissenting Opinion of Judges Baka and Van Dijk in Boujlifa, supra n. 6.
24. Boughanemi v France, Supra n.6 at para.4.
25. These states are Iceland and Norway, and Austria, Belgium, France, Hungary, Portugal, Sweden, respectively: See the comparative law section of the Üner judgment, supra n. 1 at para. 39.
26. Recommendation 1504 (2001) at paras 7 and 11(ii)(g).
27. Ibid. at para. 11(i).
28. A panel of the Grand Chamber accepted the request on 30 November 2005. In his application to the ECtHR, Mr Üner had also complained of a violation of Article 6, which was declared inadmissible.
29. Application No. 46410/99 Judgment of 5 July 2005.
30. 2001-IX 119; (2001) 33 EHRR 50. This case did not involve a long-term immigrant. 16 The Chamber judgment in Üner was decided by six votes to one, supra n. 1 at para. 67.
31. The German Government had been given leave by the President of the ECtHR to act as intervening party, submitting comments in accordance with Article 36 Section 2 of the ECHR and Rule 44 Section 2(a) of the Rules of the Court.
32. Supra n. 1 at para. 48.
33. Ibid. at para. 52.
34. Ibid. at para. 46.
35. Ibid. at para. 55.
36. Ibid.
37. Ibid. at para. 56.
38. In the Grand Chamber judgment, the ECtHR commented that it did not 'have to take a stance on' the 'time elapsed' element of this criterion, noting that the expulsion measure was taken while the applicant was still in prison. See supra n. 1 at para. 66.
39. Supra n. 1 at para. 58.
40. Sen v The Netherlands, Application No. 31465/96, Judgment of 21 December 2001; (2003) 36 EHRR 7 at para. 40
41. Tuquabo-Tekle and Others v The Netherlands, Application No. 60665/ 00, Judgment of 1 December 2005 (unreported) at para. 47.
42. Supra n. 1 at para. 58.
43. Ibid.
44. Ibid. at para. 59.
45. Ibid. at para. 61.
46. Ibid. at para. 62.
47. Ibid. at para. 63.
48. Ibid. at para. 64.
49. Ibid. at paras 65 and 67.
50. Even the dissenting Judges Costa, Zupančič and Türmen did not advocate a ban on the expulsion of integrated aliens but argued in light of European instruments that expulsion measures should be restricted to particularly serious offences, see their Dissenting Opinion, supra n. 1 at para. 9.
51. Ibid. at para. 55.
52. Cf the reading of para. 55 of the Grand Chamber's judgment in the Üner case to the Concurring Opinion of Judge Rozakis in Kaya v Germany, Application No. 31753/02, Judgment of 28 June 2007, (unreported).
53. The International Court of Justice held in the Nottebohm case that a claim of nationality is only effective in international law for the purposes of diplomatic protection if it is based on a genuine link between the national and his or her State. See: Nottebohm Case ( Liechtenstein v Guatemala), ICJ Reports 1955, 4.
54. Supra n. 1 at para. 58.
55. In his Dissenting Opinion to the Boughanemi case Judge Martens advocated this approach and cited Judges de Meyer, Morenilla and Wildhaber also in favour, supra n. 6 at para. 5.
56. Supra n. 6 at para. 3.
57. Schermers, 'Human Rights of Aliens in Europe', in Neuwahl and Rosas (eds), The European Union and Human Rights (The Hague: Martinus Nijhoff, 1995) 119 at 127-8.
58. Supra n. 31 at paras 14-15.
59. Ibid. at para. 16.
60. Ibid.
61. This is in contrast to the approach of the Human Rights Committee taken in a recent Communication relating to the expulsion of a Ugandan national from Denmark, in which the Committee noted that 'the author has submitted the communication solely in his own right and not on behalf of his wife or children. It follows that the Committee can only consider whether the author's rights under Articles 17 and 23 would be violated as a result of his removal.' Byahuranga v Denmark (1222/03), CCPR/ C/82/D/1222/2003 (2004); 12 IHRR 326 (2005) at para. 11.8.