ABDI v. DENMARK (Application no. 41643/19)

Facts:

Mr Mohamed Hassan Abdi, the applicant, was born in 1993 and entered Denmark with his mother when he was four years old;both were granted asylum [Para 2 and 5]. Between 2010 and2018, the applicant was convicted of committing various offenses and receiving sentences of varied duration [Para 6]. Following the most recent conviction of 2018,  Mr Abdi was sentenced to two years and nine months’ imprisonment [Para 7]. Referring to the information gathered by the Ministry of Immigration and Integration about the applicant, the District Court also decided to expel the applicant, conditionally, with a probation period of two years [Paras 8-9]. The case was appealed, but the Western Denmark High Court upheld the decision of the District Court,reduced the sentence to two years and six months’ imprisonment and ordered the applicant’s expulsion with a permanent ban from re-entry [Para 10-11]. The applicant requested permission to appeal against his expulsion to the Supreme Court, but was refused by the Apeals Permission Board [Para 12]. By a judgement of the 27 August 2019, the applicant was convicted of violating the Executive order on Controlled Substances and the Order on Weapon and Ammunition, committed before the judgement of 31 October 2018 [Para 13].

The applicant complained against the decision of High Court on expelling him from Denmark and argued that it is in breach of Article 8 of the Convention [Para 17]. However, the Government submitted that the application is inadmissible for non-exhaustion of national remedies under section 50 of the Aliens Act [Para 18]. The applicant also argued that the Danish courts had failed to take into consideration that he did not have a significant criminal past, had never been issued with a conditional expulsion order, the crime committed had not been serious, and that he had strong ties to Denmark and no ties to Somalia [Para 27]. The Government, however, submitted that the expulsion order had been “in accordance with the law”, had pursued the legitimate aim of preventing disorder and crime and had been “necessary in a democratic society” [Para 28].

Decision & reasoning:

The Court decided that: (1) the application was admissible; and (2) there has been a violation of Article 8 of the Convention.  

1.       Admissibility of the Application

The Court asserted that for bringing a complaint under Article 8 of the Convention, an applicant must have exhausted domestic remedies under section 50 of the Alien Act, which allows the revocation of the expulsion order following change in circumstances [Para 22]. However, the Court found that the applicant chose to bring his complaint before the Court after exhausting domestic remedies by challenging the expulsion order in the criminal proceedings against him and it is immaterial that he can also at later stage challenge the expulsion order under section 50 [Paras 23-24]. Also, the Court asserted that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. Therefore, the Court declared the complaint admissible [Paras 25-26].

2.       Violation of Article 8 of the Convention

In examining whether the interference with the applicant’s private life was “necessary in a democratic society”, the Court considered that the Danish courts’ relied upon the relevant sections of the Aliens Act, the Penal Code, and the criteria to be applied in the proportionality assessment, by virtue of Article 8 of the Convention and the Court’s case-law [Para 32]. The Court, therefore, was called to assess whether “very serious reasons” were adequately adduced by the national authorities when examining the applicant’s case [Para 32].

The Court noted that the Danish High Court, in its findings, considered the seriousness of the crime committed by the applicant in relation to the illegal possession of fully-loaded firearms with ammunition in public, the applicant’s past criminal record as a minor and as an adult, his length of stay in Denmark, his family and social ties, and his knowledge of Somali language, customs and culture [Paras 33-37]. However, relying on Ezzouhdi v. France, Keles v. Germany,and Bousarra v. France, The Court found the imposition of a definitive expulsion order in breach of Article 8 of the Convention [Para 38]. Similarly, referring to the Munir Johana v. Denmark, the Court asserted that it has never set a minimum requirement as to the sentence or seriousness of the crime which ultimately results in expulsion and that it needs to be decided on case-by-case basis by the national authorities, subject to European supervision [Para 38].

The Court found that, apart from the crimes committed as minor, other offences committed mainly concerned traffic offences and violation of the legislation on controlled substances, none of which indicated that in general the applicant posed a threat to public order [Para 39]. The Court also noted that the applicant had not previously been warned of expulsion or had a conditional expulsion order imposed [Para 41]. As such, the Court found that despite the lack of relevant prior convictions and warning of expulsion, the Danish courts decided to combine the expulsion of the applicant with a permanent re-entry ban on the basis of a relatively lenient sentence that was imposed on the applicant [Para 42]. Furthermore, the Court found that the applicant arrived in Denmark when he was four years old and resided there for approximately twenty years as a settled migrant and that he has very strong ties to Denmark and virtually no ties with Somalia [Para 43]. Therefore, given all the circumstances of the present case and considering the Court’s case-law on Ezzouhdi v. France, Keles v. Germany, and Bousarra v France, the Court is of the view that the expulsion of Mr. Abdi combined with a life-long ban on returning was disproportionate [Para 44]. Thus, there has been a violation of Article 8 of the Convention [Para 45].

3.       Application of Article 41 of the Convention

Since the applicant did not claim any compensation, the Court is not called upon to make any award under Article 41 [Para 46].

Outcome:

Application granted. There has been a violation of Article 8 of the Convention.