May 08, 2014
In Palanci v. Switzerland – an expulsion case – the Court held against the applicant his unsuccessful business efforts and the time that authorities needed to process his asylum and residence permit applications.
Mr. Palanci is a Turkish national. In 1989 he entered Switzerland for the first time and applied for asylum. He lived there, working in the gastronomic sector, until 1993, when his asylum request was dismissed. He left Switzerland for Germany, where he married his current wife, also a Turkish national. Because his wife had a residence permit for Switzerland, the applicant was able to re-enter the country in 1994. He was given a residence permit. Three daughters were born to the couple in Switzerland.
The applicant has been logged in the criminal register of Switzerland nineteen times. While the majority of the sentences have been for minor offences – mainly against the Road Traffic Act – three of them are serious convictions. These are: one for domestic violence, resulting in a suspended custodial sentence of three months’ imprisonment, and two others for wilful negligence of his obligation to pay maintenance, warranting sixty days’ imprisonment and a suspended custodial sentence of forty-five days. Since the applicant had thus been found guilty of imprisonable offences, he fulfilled the criterion for expulsion under Swiss law.
When deciding about expulsion, the national authorities also took into account the applicant’s financial situation. During the stay in Switzerland, the applicant’s financial situation had continuously deteriorated. He had several jobs in the gastronomic sector, and had repeatedly tried to start his own business, but these projects had been unsuccessful. As at the date of the decision of expulsion, his debts amounted to approximately EUR 288,918 and the outstanding maintenance payments to EUR 61,166.
In its turn in assessing whether expulsion of the applicant would violate his family life, the Strasbourg court thought it relevant to include ‘the debts situation’ in its analysis:
58. .. The Court therefore agrees with the domestic authorities that the applicant lacked the necessary diligence and responsibility in financial and professional matters, with the result that the number of debts increased and he and his family were dependent on social welfare until September 2004. Since the applicant, furthermore, only changed his behaviour in financial matters once he had been informed by the immigration authorities in October 2004 that his expulsion was imminent, the Court takes the view that the domestic authorities rightly assumed that the applicant’s behaviour had been a threat to public order.
Even if the applicant’s financial behavior can be characterized as a ‘threat to public order’, I can’t find such reasoning to fit in the criteria developed in the Court’s case law for assessing whether an expulsion of a person who has committed criminal offences complied with the protection of family life requirements under Article 8. The criteria are (see them elaborated in Boultif v. Switzerland, and applied in Üner v. the Netherlands by the Grand Chamber):
– 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 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 expressing 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 from 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.
Time spent in Switzerland
Another point I would like to raise, is the assessment by the Court of the time the applicant had spent in Switzerland. The Court held:
59. Regarding the duration of the applicant’s stay in Switzerland, the Court considers that eighteen years was certainly a long enough period for the applicant to have established strong ties with Switzerland, especially since he was working in that country and was raising his children there. However, the Court cannot overlook the fact that the applicant’s residence status remained uncertain between 1989 and 1993, when he was awaiting the outcome of his asylum request, and also between September 2004 and October 2007, when the domestic proceedings regarding his residence permit were pending. The Court is therefore not willing to attribute the same weight to the duration of the applicant’s stay in Switzerland as it would do if he had lived there with a valid residence permit throughout that period.
First of all, the Court shouldn’t keep the pending time against the applicant. It is clearly the state’s responsibility to handle cases promptly and answer for any negative consequences. Secondly, I find it difficult to see how pending proceedings before the authorities hinder development of relationships with one’s family and ties with the country and society. If anything, a possibility of losing contact with one’s family members, friends, colleagues and the country at large would, to my mind, intensify one’s feelings.