ECtHR - Ejimson v. Germany, Application no. 58681/12, 1 March 2018

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Country of Applicant: 
Nigeria
Date of Decision: 
01-03-2018
Citation: 
Application no. 58681/12
Court Name: 
The European Court of Human Rights (Fifth Section)
Relevant Legislative Provisions: 
Headnote: 

The applicant claimed that Germany violated his right of family life under Article 8 of the Convention by refusing to grant him a residence permit. 

Facts: 

The case concerned a Nigerian national who had been refused a residence permit despite his claim that he has a daughter in Germany, with whom he has enjoyed family life within the meaning of Article 8 of the ECHR.

The applicant arrived in Germany, for the second time, in October 2000. On the same month his daughter was born, who is a German national. In 2002, the Munich Regional Court sentenced him to eight years’ imprisonment for drug trafficking on a large scale. In March 2003, the Authority of the City of Munich refused to renew the applicant’s residence permit and ordered his expulsion to Nigeria on his release which also contained an unlimited re-entry ban and notice that he would be deported to Nigeria if he did not leave Germany voluntarily within four weeks after being released from prison. After his release in July 2009, he was granted an exceptional leave to remain and in September he applied for a residence permit based on family ties.

After the lengthy procedures with the administrative and lower courts, on 22, February 2012 the Administrative Court of Appeal refused his right to a residence permit based on the fact that he did not have a valid passport and there was already a final expulsion decision against him. On 22 March 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging that the decisions of the Administrative Court of Appeal and of the Federal Administrative Court violated his right to respect for his family life with his daughter. Subsequently, the Embassy of Nigeria declined the issuance of a passport to the applicant until the proceedings before the European Court of Human Rights were still in progress. He has since remained in Germany.

The applicant complained that the decision to refuse him a residence permit infringed his right to family life with his daughter, as guaranteed by Article 8 of the Convention.

Decision & Reasoning: 

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

The Court declared the applicants' claim admissible and observed that the issue is whether or not the subsequent refusal of a residence permit was in breach of Article 8 ECHR and whether the authorities were under a positive obligation to grant the applicant a residence permit.

The Court established that the relationship between the applicant and his daughter, at the time the decision denying him a residence permit, constituted "family life" within the meaning of Article 8 § 1 of the Convention.

However, the Court reiterated that Article 8 neither guarantees the right of a foreign national to enter or to reside in a particular country nor does it entail a general obligation for a State to authorise the residence of a foreign national on its territory or issue a particular type of residence permit. Furthermore, the Court noted, that in a case which concerns family life as well as immigration, the extent of a State’s obligations will vary according to the particular circumstances of the persons involved and the general interest. Moreover, the Court confirmed that a fair balance has to be kept between the competing interests of the individual and the community as a whole, and in both contexts the State enjoys a certain margin of appreciation.

The Court reiterated that it takes into account the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control or considerations of public order weighing in favour of exclusion. Another important consideration is whether family life was created at a time when the persons involved were aware, due to the immigration status of one of them, that the persistence of that family life within the host State would from the outset be precarious. The Court has further held that where children are involved, their best interests must be taken into account and national authorities must give effective protection and sufficient weight to the best interest of the children who are directly affected by the removal of a non-national parent.

The Court observed that the drug-related offences committed by the applicant prior to the birth of his daughter were very serious and he had committed further offences, albeit of a less serious nature, since his release from prison, weighing in favour of his exclusion from Germany. Further, the Court established, that contact could be maintained between the applicant and his daughter, if removed to Nigeria, and the applicant, could enter Germany twice a year for a total period of four weeks to see his daughter.

The Court also observed that the applicant’s own actions had previously caused his daughter to be deprived of a “lived” relationship and that by the time the present judgment becomes final, the applicant’s daughter will have almost reached the age of eighteen and that a "lived” relationship with the applicant for the remainder of her childhood if he were not allowed to remain in Germany loses considerable weight.

The Court, looking at the proceedings as a whole, concluded that the domestic authorities have not attributed excessive weight to the general interest in controlling immigration and have not overstepped the margin of appreciation afforded to them in the circumstances of the present case, therefore, there has been no violation of Article 8 of the Convention.

Outcome: 

The Court declared the application admissible and held that there has been no violation of Article 8 of the Convention.

Observations/Comments: 

This case summary was written by Fanni Bunevacz.

Case Law Cited: 

Germany - Lüneburg Administrative Court of Appeal, no. 8 ME 47/10, § 4, decision of 16 March 2010

Germany - Federal Court of Justice, no. V ZB 317/10, § 10, decision of 10 November 2011

Germany - Berlin-Brandenburg Administrative Court of Appeal, no. OVG 11 S 32.14, decision of 27 May 2014

Germany - Federal Administrative Court, no. 1 C 23/99, judgment of 21 March 2000

Germany - Federal Administrative Court, no. 1 C 37/07, judgment of 16 December 2008

Germany - Federal Administrative Court, no. 1 C 14/05, judgment of 27 June 2006

ECtHR - Dremlyuga v. Latvia (dec.), no. 66729/01, 29 April 2003

ECtHR - Jeunesse v. the Netherlands [GC], no. 12738/10

ECtHR - Konstantinov v The Netherlands, Application No. 50435/99

ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99
Authentic Language: 
English
State Party: 
Germany
National / Other Legislative Provisions: 
Germany - Sections Section 5 § 1
Section 10 § 3
11 § 1
25 § 5
27
28 § 1
48 § 3
49 § 2
59 § 1
59 § 4
60a § 2
82 § 4
95 § 1 of the Residence Act
Germany - Section 30 § 3 of the Asylum Procedure Act
Germany - Section 47 § 1 of the Aliens Act
Germany - Narcotics Act