Last Updated on April 29, 2019 by LawEuro
Information Note on the Court’s case-law 228
April 2019
I.M. v. Switzerland – 23887/16
Judgment 9.4.2019 [Section III]
Article 8
Expulsion
Review of proportionality overly superficial in the expulsion of a convicted person who had become an invalid dependent on his children: expulsion would constitute a violation
Facts – The applicant is a Kosovar national who was born in 1964 and has lived Switzerland since 1993. In 2003 he committed a rape; he was sentenced to two years and three months’ imprisonment. Once that conviction had become final, the authorities decided to expel him (from his Canton of residence in 2006, and then from the whole of Switzerland in 2010).
The applicant’s health worsened over the years: since 2012 his disability rate had stood at 80%. In 2015 his final appeal against the expulsion order was dismissed: the Federal Administrative Court held that the authorities had to be afforded a wide margin of discretion under the subsidiarity principle. Consequently, the applicant lost his disability allowance and was now dependent on his children.
Law – Article 8
(a) Interference – In addition to private life (the applicant had been living in Switzerland for a long time), Article 8 is also relevant in this case in respect of family life: being disabled, the applicant receives daily assistance (with household chores, healthcare, personal hygiene and clothing) from his adult children and is financially dependent on them; he is also the father of two under-age children who were born in Switzerland. It was immaterial whether or not the adult children would be able to continue to provide him with remote financial support in the event of his expulsion to Kosovo, or whether the applicant had only informed the authorities of his paternity of the two under-age children (born in 2006) after the judgment delivered in 2015.
(b) Necessity in a democratic society – If the domestic authorities had conducted a detailed exercise of balancing the competing interests in the case, taking into account the different criteria established in the Court’s case-law, and if they had given relevant and sufficient grounds for their decision, the Court might, in line with the subsidiarity principle, have felt able to conclude that the domestic authorities had given their decision in the framework of the margin of appreciation afforded to the respondent State in the sphere of immigration.
That had not been the case. The proportionality of the expulsion order had only been examined superficially. The Federal Administrative Court had emphasised the seriousness of the offence committed, briefly considered the risk of reoffending and mentioned the difficulties which the applicant would have faced on his return to Kosovo. Those had been the only aspects analysed by the court.
Other aspects had been either overlooked or considered very superficially even though they had been relevant criteria under the Court’s case-law, including the solidity of the applicant’s social, cultural and family links with the host country and the country of destination, medical evidence, the applicant’s situation of dependence on his adult children, the change in the applicant’s behaviour twelve years after the commission of the offence, and the impact of his seriously worsening state of health on the risk of his reoffending.
These shortcomings prevented the Court from drawing any clear conclusion as to whether the applicant’s interests outweighed the interests of expelling him in order to prevent public disorder. In short, the domestic authorities had failed to demonstrate convincingly that the expulsion order issued had been proportionate to the legitimate aims sought to be achieved.
Conclusion: expulsion would constitute a violation (unanimously).
Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
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