Saber and Boughassal v. Spain, Applications 76550/13 and 45938/14, 18 December 2018

Facts:

Both applicants had arrived in Spain as children, had attended school in the country and were living there on work and residence permits. Following several arrests and convictions between 2004 and 2010, the local authorities ordered the administrative expulsion of the applicants with a four-year ban on the territory in the case of the first applicant and ten years in the case of the second applicant.

The applicants challenged these decisions on the basis of Article 8, claiming that they had no connection with Morocco having been raised and educated in Spain, where they also had residence and work permits. The families of both applicants lived in Spain, while the second applicant also had a wife there. The Administrative Court of Girona confirmed the expulsion orders, only limiting the second applicant’s ten-year ban to one of three years, taking into account proportionality and lack of serious threat to public order.

The applicants lodged another appeal before the High Court of Catalonia but these were rejected as the expulsion orders were considered a legal consequence of their criminal conviction and the examination of their links to Spain unnecessary. Their subsequent appeal before the Constitutional Court was found inadmissible as they had not demonstrated that their appeals were of constitutional importance.

Relying on Article 8 of the Convention and Directive 2003/109/EC on the status of third-country nationals who are long-term residents, the applicants claim that there was no personal assessment and the authorities failed to balance the interests at stake with public order. 

Decision & reasoning:

Admissibility

In line with the applicants’ arguments, the Court considered that the applicants have provided the domestic courts with an opportunity to remedy the alleged violation. Contrary to what the government contended, the fact that the domestic court found the case inadmissible because the applicants did not demonstrate constitutional importance does not preclude the Court from examining an application before it.

Regarding Spain’s second objection, the court has previously held that it has no jurisdiction to apply EU rules or to examine alleged violations thereof, unless and to the extent that such violations could have infringed the rights and freedoms safeguarded by the Convention.

Merits

The Court started its assessment of the relevant principles by noting that, although not all immigrants will necessarily have family life in the host country, “private life” remains an integral part of Article 8 covering social links established between immigrants and the community they live in. Moreover, family life between adults and their parents may qualify under family life, when there are additional elements of dependence. However, the Court has previously found that links between adults and parents or other close relatives may be taken into account under the aspect of "private life" within the meaning of Article 8.

The Court continued with a brief overview of the criteria in assessing whether an expulsion/prohibition of entry measure is necessary in a democratic society and proportionate to the legitimate aim pursued under Article 8 § 2 of the Convention. According to its case law, several factors will guide on this proportionality test, including the nature and seriousness of the offence, the duration of the person’s stay in the host country, spouse and child considerations, as well as social, cultural and family ties with the host country and the country of destination. The criteria apply irrespective of whether the person entered the host country as an adult, or at a very young age, but the age of the person has to be considered when assessing the impact of the expulsion, and due weight must be given to the fact that the person arrived as a child. While Article 8 does not contain explicit procedural requirements, the decision-making process leading to the relevant measures must nevertheless be fair and duly respect the interests of the individual protected by that article.

In application of the principles to the instant case, the Court considered the applicants' length of stay in Spain, their education there and their relationship with close relatives to conclude that the contested measures must be regarded as an interference with their right to respect for their "private life". Recalling that the measures were lawful according to national legislation, it went on to assess whether they were necessary in a democratic society.

Firstly, it observed that the domestic court found it unnecessary to examine the applicants’ links to Spain due to the connection of the expulsion measure to the criminal conviction under national law. However, different domestic courts in other crime-related cases and a dissenting judge in the instant cases resorted to an interpretation that would also require examination of all relevant factors before resorting to expulsion, in line with CJEU jurisprudence on Directive 2003/109. Secondly, the Court dismissed the government’s argument that balance had already been achieved by the legislature, which foresees deportation for specific offenses and convictions, by repeating that the nature of the offense and the duration of the conviction is not the only factor.

Analysing the courts’ reasoning, the Court found that the domestic authorities did not take into account all possible criteria, such as the length of the applicants' stay in Spain, the family situation of the second applicant or the solidity of the social, cultural and family ties they had with the host country, Spain, and the destination country, Morocco. It then concluded that the national authorities did not correctly assess the proportionality of the expulsion measures in violation of Article 8.

Outcome:

Application granted – Violation of Article 8

Subsequent proceedings:

The judgment became final on 18.03.2019.

Observations/comments:

Dissenting Opinion of Judge Keller

Judge Keller emphasised that the Court was not called to rule on whether Spain had exceeded its margin of appreciation, as it had done in K.M. v. Switzerland and Maslov v. Austria, since the measures were ordered almost “automatically” without any examination of the circumstances.

The judge further elaborated on the principle of margin of appreciation in analysing the need, in a democratic society, for interference with Article 8 and noted that the principle implies that an analysis has indeed been conducted by assessing the individual’s specific circumstances in conformity with the Court’s relevant criteria. The mere absence of such an assessment by domestic courts points to non-compliance with obligations under the Convention and, therefore, a violation of Article 8.

Lastly, the Court should have looked into the applicants’ current situation and their place of residence at the time of its examination of the case.