By Dr. Mark Klaassen, Assistant professor at the Institute of Immigration Law (Leiden University)
On 1 March 2018, the Fifth Section of the Court unanimously held in Ejimson v. Germany that the revocation of the right of residence in Germany of a Nigerian national after being criminally convicted for a drugs related offence did not breach Germany’s obligation to respect the private and family life of the applicant. Considering the character of the offence committed by the applicant the ruling may not come as a surprise as the Court is generally very strict in public order immigration cases in which the applicant has committed a drugs related offence. However, the reasoning of the Court is interesting for a number of reasons. After discussing the facts of the case and the judgment of the Court, I will analyse the ruling on three different aspects. Firstly, the role of the best interests of the child concept in the balancing of interests will be discussed. Secondly, the relationship between the right to respect for family life under Article 8 ECHR and the protection against expulsion under EU law will be assessed. Thirdly, I will shortly reflect on the manner in which the Court seems to redirect the case back to national decision makers.
Facts of the case
The applicant was born in 1975 and is a Nigerian national. In the 1990s, he moved to Spain, applied for asylum in Germany using a false identity, moved back to Spain and finally settled in Germany in 2000. In October 2000, the applicant fathered a daughter with a German national. His daughter obtained German nationality through his mother. In 2001 and 2002, the applicant lived together with his German girlfriend and obtained a residence permit based on his family ties. In 2002 the applicant was convicted for drugs trafficking to eight years imprisonment. He used the adolescent mother of his child and another young girl to smuggle large quantities of cocaine from South America to Europe on two accounts. In the first few years of his detention, the applicant received regular visits from his girlfriend and baby daughter in prison. When they stopped visiting, the applicant sought a court ruling on contact with his daughter. In 2006, the applicant and his former girlfriend agreed before the family court that as soon as he was released from detention, there would be supervised meetings between him and his daughter. The applicant was released from prison in July 2009. After his release, the applicant received an exceptional leave to remain as Germany was not able to enforce his expulsion, as he did not possess a valid passport. The exceptional leave to remain was extended regularly ever since. The applicant has completed a vocational training programme in 2012, but was not allowed to pursue gainful employment because of the nature of his right of residence. He has not lived with his daughter and her mother since his release from prison. In spite of that, he visits his daughter on a regular basis and he maintains close contact with her. Since his release from prison, the applicant has been criminally convicted three times for fraud and theft.
In 2003, after his criminal conviction for drugs trafficking, the residence permit of the applicant was not prolonged and a deportation order was issued. In 2009, after being released from prison, the applicant applied for a new residence permit based on family ties with his daughter. This application was rejected by the regional authorities based on the pending expulsion order. Regarding the family life with his daughter, the regional authorities held that the applicant would be able to maintain regular contact with her through telephone calls and short visits. This decision of the regional authorities was quashed by the Munich Administrative Court, which held that despite the danger for public order did not outweigh the best interests of the applicant’s minor daughter. In appeal, the Bavarian Administrative Court of Appeal held that the applicant was not entitled to a residence permit on humanitarian grounds. All subsequent appeals of the applicant against this decision were rejected.
During his deportation proceedings in 2012, the applicant agreed to the terms of the immigration authorities under which he would leave Germany. This involved the entry-ban to re-enter Germany, which would be limited to two years and the immigration authorities would allow family reunion after that period provided that he would not commit any further criminal offences. Later in 2012, the applicant declared that he did not intend to leave Germany, terminating the agreement with the immigration authorities. On 6 September 2012, the applicant complained at the Court that the refusal to issue him with a residence permit would be in violation of Article 8 ECHR.
Reasoning of the Court
The Court determines that the application exclusively concerns the refusal of the German authorities to issue the applicant with a residence permit, and not the deportation order that was issued to the applicant in 2003. Therefore the Court holds that the Üner-criteria – which are used in public order deportation cases – are not applicable but instead it should be determined whether the refusal to issue a residence permit breaches Germany’s positive obligation to respect the family life of the applicant. The Court reiterates the factors to be taken into account in this regard, for which it refers to the Jeunesse v. Netherlands case. These factors are:
- the extent to which family life would be effectively ruptured,
- the question whether there are insurmountable obstacles to exercise family life in the country of origin of the applicant,
- whether there are factors of immigration control of public order weighing in favour of exclusion,
- whether family life was created at the time that the different family members involved were aware of the precarious nature of the applicant’s residence in the host state, and
- the best interests of the child which must be given significant weight, though these are not decisive in themselves.
Applying these principles, the Court considers first the applicant is still on an exceptional leave to remain in Germany, as his residence permit has not been terminated yet. The Court places significant weight on the fact that the applicant was convicted for a very serious, drugs-related crime, and notes that after his release he has been criminally convicted three times, albeit for less serious crimes. At the time of the final decision in Germany, the daughter of the applicant was eleven years old. The Court notes that in case the applicant would be deported, his daughter could remain in contact with him through telephone conversations and short visits. Furthermore, the exclusion order placed on the applicant is only valid for five years. The applicant argued that in case he would be deported, he would lose a ‘lived relationship’ with his daughter, as they would not be able to have regular contact in-person. The Court observes that the argument that the applicant and his daughter would be deprived of such ‘lived relationship’ loses significant weight considering that the German authorities failed to execute the deportation order placed on the applicant, enabling him to exercise family life with his daughter. Lastly, the Court notes that the applicant would be able to challenge an eventual revocation of his exceptional leave to remain, in which he could challenge this based on his right to respect for family life under Article 8. The Court concludes that “the domestic authorities have not attributed excessive weight to the general interest in controlling immigration and have not overstepped their margin of appreciation afforded to them in the circumstances of the present case.”
‘Duldung’ and the role of ‘tolerated’ residence during deportation proceedings
In the present case, the applicant received exceptional leave to remain (Duldung) pending his deportation, as he could not be deported because he did not possess a valid passport. The Court emphasises that this enabled the applicant to exercise family life with his daughter. This is an interesting observation in the light of the previous case law of the Court. In Jeunesse v Netherlands, the applicant was not issued with an exceptional leave to remain pending her deportation, as such residence status does not exists in the Netherlands. In that case, the Court reproached the Netherlands for ‘tolerating’ the unlawful stay of the applicant in the Netherlands for a long period of time. In the present case, the Court seems to be of the opinion that the tolerated stay of the applicant in Germany weighs in favour of the German state in the balancing of interests, as this factually enabled the exercise of family life. From these two rulings it remains unclear what the implications of ‘tolerated’ residence pending deportation proceedings should be. What is clear however from both the Ejimson and Jeunesse judgements is that the Court does not hold it against the applicants that family ties were (further) developed during a period that the residence of the applicants was precarious because of their very insecure immigration status of the applicant, when the family life at state concerns parents and minor children. Therefore, it seems that precarious residence is a relevant factor in cases involving spouses and partners, but not in cases concerning minor children.
The best interests of the child
The manner in which the Court discusses the role of the best interests of the child concept in the balancing of interests seems rather pragmatic to me. In the present case, the Court observes that the last time the best interests of the child were considered in 2003, when the right of residence of the applicant was revoked. As the applicant was granted a right of residence – albeit of a different nature – the Court accepts was enabled to exercise a ‘lived’ relationship with his minor daughter, who has now almost reached the age of majority. This pragmatic approach was not followed by the Court in the recent El Ghatet v. Switzerland ruling. In that case, the Court held that “no clear conclusion can be drawn whether or not the applicants’ interest in a family reunification outweighed the public interest […].” Nevertheless, a violation of Article 8 was found because the domestic court of highest instance “did not place the second applicant’s best interests sufficiently at the center of its balancing exercise and its reasoning.” Strikingly, the applicant in that case had already reached the age of majority on the moment of the decision of the Court. Likewise, in Jeunesse v. Netherlands, the Court concluded that the Dutch authorities fell short of what is required in assessing the best interests of the child, and that they should have adverted to and assessed evidence in respect of the practicality, feasibility and proportionality of the removal of the parent in order to give effective protection and sufficient weight to the best interests of children directly affected by it.
Concerning the refusal to grant to applicant a residence permit after his release from prison, Germany argued that it was not required to assess the child’s best interests because the legislator had already incorporated the best interests of the child in the public order provision which grants discretion to the administration to not refuse a residence permit in justified individual cases. The Court expresses its reservations on this, stating that the relationship between the applicant and his daughter has changed over the years. However, the Court concludes that the agreement between Germany and the applicant that was concluded in 2012, which included that the applicant was to leave Germany for two and a half years, constituted a fair balance of the competing interests involved. This reasoning is problematic from the perspective of the protection of the rights of the child of the applicant. Instead of focusing on what a refusal to grant a residence permit to the applicant would mean for her, the Court holds that the applicant had a fair chance to obtain a right of residence in Germany after two and a half years of living abroad and he did not take it.
Comparing Ejimson with both El Ghatet and Jeunesse, it is remarkable that the Court does not engage in an analysis of whether the domestic authorities have assessed the practicality, feasibility and proportionality of the refusal to grant a residence permit to the applicant. Even if the Court would have come to the same conclusion, this would have been a clear direction on how to assess the best interests of the child in the context of the determination of whether a removal or refusal of a residence permit complies with Article 8 ECHR. This is especially important because the primary role in the protection of Convention rights lies at the national level. In my opinion, this is a missed opportunity.
EU citizenship of the applicant’s daughter and public order
Lastly I would like to analyse the Ejimson judgment from the perspective of EU law. For that I will look through the prism of the EU citizenship of the minor daughter of the applicant and discuss whether this is relevant for the the assessment of the public order considerations.
From the perspective of the EU citizenship of the applicant’s daughter and her right to respect for family life, the CJEU has held in Chavez-Vilchez that a minor EU citizen may not be forced to leave the territory of the EU. It must be determined whether denying the applicant a right of residence in Germany might compel his daughter, who is an EU citizen, to leave the territory of the EU. The domestic authorities must assess whether there is a relationship of dependency between the child and the third-country national parent in the light of the right to respect for family life and the best interests of the child. In case the member state concerned would object to the residence of the third-country national parent based on public order considerations, the CJEU has established that person may only be excluded if there is a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (see the rulings of the CJEU in CS and Rendon-Marin).
From the facts of the case at hand, it seems that the applicant in the present case does actively fulfil the role of a parent for his daughter, as they are regularly in contact with each other. In these circumstances, it seems that the refusal of a right of residence to the applicant would be at odds with the protection his daughter enjoys based on her EU citizenship. However, it should be noted that the applicant currently enjoys a right of residence based on the fact that Germany is not able to deport the applicant and, therefore, it could be argued that the question whether the child would be forced to leave the territory is currently not relevant. In case this changes and Germany does actively seek the deportation of the applicant, I wonder whether it could be held that the applicant in the present case presents a genuine, present and sufficiently serious threat to one of the fundamental interests of society. Admittedly, the nature of the criminal conviction is very serious. The CJEU has accepted before that the prevention of drug related offences could even be considered an ‘imperative ground’ of public security. However, the applicant has not been convicted for any drugs related crimes since 2001. Furthermore, Germany apparently did not deem that the applicant posed a very serious risk to society as they agreed to readmit the applicant after two and a half years. I wonder whether a member state can maintain the sufficiently serious threat argument when it considers the threat to be so limited that it warrants a return after such a short period of time. To me, it seems that the refusal of a residence permit to the applicant has a more punitive than a preventive character. Based on this, I believe that it cannot be maintained that the applicant forms a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and that therefore – in case Germany finally seeks his deportation – a derived right of residence may not be denied to the applicant.
It has been remarked before that the case law of the Court in immigration cases lacks consistency and that the Court fails to adopt a principled approach regarding the role of the best interests of the child in balancing the competing interests involved. The Ejimson judgement is another example of this. The manner in which the Court holds that the case exclusively concerns the application for a residence permit, and not the pending deportation of the applicant, is not convincing. Technically this was also the case in Jeunesse, in which the Court did rule on the compatibility of the pending deportation of the applicant. The manner in which the Court involves the best interests of the child in its reasoning does not give any further guidance on the role of children’s rights in the balancing of interests under article 8. In Chavez-Vilchez the CJEU did give the member states some indications on how to assess the best interests of the child in the context of derived residence rights based on EU citizenship, laying down that the dependence of the EU citizen child on the third country national parent should be decisive. In my opinion, the Court should follow up on this example and clearly set out what the guiding principles in immigration cases are and be consistent in the application of these principles.