FOURTH SECTION
CASE OF SHARIFI v. DENMARK
(Application no. 31434/21)
 
 
JUDGMENT
 
Art 8 • Expulsion • Private life • Disproportionate expulsion of settled migrant combined with twelve-year re-entry ban following convictions for serious offences • Imposition of relatively lenient sentence • Lack of recent previous convictions and warnings of expulsion • Very strong ties with Denmark and virtually non-existent ties with country of origin • Possibility of imposing a shorter ban not explored
 
STRASBOURG
5 September 2023
 
FINAL
 
05/12/2023
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sharifi v. Denmark,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Branko Lubarda,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins,
 Anne Louise Bormann, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 31434/21) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Afghan national, Mr Amir Shah Sharifi (“the applicant”), on 16 June 2021;
the decision to give notice to the Danish Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 27 June 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns an order for the expulsion of a settled migrant, issued in criminal proceedings. The applicant invokes Article 8 of the Convention. THE FACTS
2. The applicant was born in 1992 and lives in Copenhagen. He was represented by Mr Eddie Omar Rosenberg Khawaja, a lawyer practising in Copenhagen. 3. The Government were represented by their Agent, Ms Vibeke Pasternak Jørgensen, from the Ministry of Foreign Affairs, and their Co‑Agent, Ms Nina Holst‑Christensen, from the Ministry of Justice. 4. The facts of the case may be summarised as follows. 5. In 2001, when the applicant was 9 years old, he entered Denmark together with his parents and siblings. On 10 February 2003 they were granted a residence permit under section 7(2) of the Aliens Act (see paragraph 13 below). 6. The applicant has a criminal past. When he was a minor (between 15 and 18 years old), he was convicted of the following offences:
(a)  by a judgment of 28 February 2008, he was convicted of violence and witness tampering and sentenced to six months’ imprisonment, suspended;
(b)  by a judgment of 17 April 2009, he was convicted of theft, use of a motor vehicle belonging to someone else and violations of the Weapons and Explosives Act and the Controlled Substances Act, for which he received a forty-day suspended sentence; and
(c)  by a judgment of 24 September 2010, he was convicted of taking a motor vehicle without the owner’s consent, with particularly aggravating circumstances, and was sentenced to twenty days’ imprisonment, suspended. As an adult, by a judgment of 14 February 2012, the applicant was convicted of repeated violence, and sentenced to thirty days’ imprisonment, and by a judgment of 15 August 2012, he was fined for a violation of the Controlled Substances Act. 7. By a District Court (Retten i Holbæk) judgment of 27 September 2019 the applicant was convicted under Article 192a of the Penal Code of being in possession of two shotguns with particularly aggravating circumstances in a public place, with a view to their illegal sale, committed on 18 January 2019, which carried a sentence of up to eight years’ imprisonment. He was also convicted of being in possession of 0.4 grams of cocaine. He was sentenced to two years and six months’ imprisonment, and was expelled from Denmark with a twelve-year re-entry ban. 8. The District Court’s reasoning regarding the expulsion order was as follows:
“The court has given particular weight to the nature and seriousness of the offence [relating to] the possession of two shotguns in a public place with a view to their illegal sale, which must be presumed to imply an imminent risk that the weapons might be used to harm others. ... The court allows the claim for expulsion pursuant to section 49(1), read with section 22(1)(viii), of the Aliens Act. The expulsion order should be combined with a re-entry ban which, based on the length of the sentence, should be permanent as a starting-point; see section 32(2)(v) of the Aliens Act. Since, however, on the basis of an overall assessment, an expulsion order combined with a permanent re-entry ban may be considered for certain (med sikkerhed) to be contrary to Denmark’s international obligations, the re-entry ban is instead imposed for twelve years under the third sentence of section 32(5) of the Aliens Act as the court finds that expulsion would then not for certain be contrary to Denmark’s international obligations. In this regard, the court has given weight to the fact that, according to the opinion submitted by the Danish Immigration Service, [the applicant] entered Denmark at age 10 [sic] and has been lawfully residence in Denmark for some fifteen years and ten months. He has attended school in Denmark and has completed grade 9. His mother and six siblings live in Denmark, and he has a girlfriend here, but has not otherwise started a family and has not formed any regular ties to the labour market. The court has been informed that he has a maternal grandmother in Afghanistan and that he speaks the Afghan language, although poorly. [The applicant] has stated that he speaks Danish with his siblings, and that he suffers from a chronic intestinal condition, which means that there are different kinds of food that he must avoid. [The applicant] has several prior convictions, including for violations of the Penal Code and the Weapons and Explosives Act, and has served short prison sentences, but he has not previously received a suspended expulsion order or been cautioned about the risk of expulsion. His ties with Denmark must he regarded as stronger than his ties with Afghanistan, but he will not be without prerequisites for making a life there if an expulsion order is imposed.
... According to the specific notes on the amendment of the third sentence of section 32(5) of the Aliens Act (Bill No. 2018 156), a re-entry ban of a shorter duration than under section 32(2) and (3) of the Aliens Act may be imposed if ... the expulsion order would otherwise for certain be contrary to Denmark’s international obligations, [and] if the court is of the opinion that the length of the re-entry ban has an independent and crucial bearing on whether an expulsion order would be contrary to Denmark’s international obligations. The court finds that if the re-entry ban is imposed for twelve years instead of a permanent ban, an expulsion order would not for certain be contrary to Denmark’s international obligations and that the length of the re-entry ban in this case may be deemed to have an independent and crucial bearing on the outcome of this assessment. In so finding, the court has given particular weight to the judgment of the European Court of Human Rights of 15 November 2012, Shala v. Switzerland, and the judgment of 23 September 2010, Bousarra v. France, which are mentioned in para. 2.1.2.5.2 of Bill 2018 156. On those grounds and accordingly, the re-entry ban is imposed for twelve years.”
9. The applicant appealed against the expulsion order to the High Court of Eastern Denmark (Østre Landsret), before which he also explained that he and his girlfriend had known each other since the end of 2017. They lived together. The applicant’s girlfriend was pregnant, and the baby was due in August 2020. His own parents had divorced in 2008. His father had died in 2018 in Afghanistan. 10. By a judgment of 1 July 2020, the High Court upheld the judgment of the District Court and stated as follows in respect of the expulsion order:
“As regards [the applicant], who is an Afghan national, the appeal only concerns the issue of expulsion. In this case, [the applicant] has been sentenced to imprisonment for a term of two years and six months for a violation of section 192a of the Penal Code, and the conditions for expulsion under section 22(1)(viii) of the Aliens Act have therefore been met. It follows from section 26(2) of the Aliens Act that an alien must be expelled, inter alia pursuant to section 22, unless expulsion would for certain be contrary to Denmark’s international obligations, including Article 8 of the Convention ... Under Article 8 § 2, it is crucial whether expulsion must be deemed to be necessary for the prevention of crime. A decision to expel will thus depend on an assessment of proportionality, and extensive case-law is available from the European Court of Human Rights on this issue. The criteria to be considered in the assessment are set out in, inter alia, Maslov v. Austria (judgment of the Court of 23 June 2008 in application no. 1638/03). The weight to be attributed to the individual criteria depends on the circumstances and facts of the case in question, and very compelling grounds are required to justify expulsion in the case of a resident alien who was born in this country or arrived here as a child and spent most of his childhood and youth here. On the basis of an overall assessment of the nature and seriousness of the offences committed, coupled with the personal circumstances listed by the District Court, the High Court finds that the considerations in favour of expelling [the applicant] are so compelling as to outweigh the considerations against expulsion. The fact that the re-entry ban is imposed for a limited period of twelve years has been taken into account in the assessment of proportionality. Thus, the High Court agrees that expulsion as decided by the District Court is not a disproportionate interference contrary to Article 8 of the European Convention on Human Rights. The information submitted before the High Court to the effect that [the applicant’s] girlfriend, who is a Danish national and has been registered as living at the same address as [the applicant] since 10 January 2019, is now pregnant with a child from their relationship cannot lead to any other result before the High Court. It is noted in this connection that the defendant has been in pre-trial detention in this case since 18 January 2019 and that the child was conceived after the date of the District Court judgment.”
11. A request by the applicant for leave to appeal to the Supreme Court (Højesteret) was refused on 7 December 2020 by the Appeals Permission Board (Procesbevillingsnævnet). 12. By a final decision of 17 March 2022, the Refugee Appeals Board found that it would not be contrary to the prohibition of refoulement, including under Article 3 of the Convention, to return the applicant to Afghanistan. According to information provided by the Danish Return Agency (Hjemrejsestyrelsen) on 13 July 2022, on that date the applicant’s deportation had not yet been planned. RELEVANT LEGAL FRAMEWORK
13. The relevant provisions of the Aliens Act (Udlændingeloven) relating to expulsion have been set out in detail in, for example, Munir Johana v. Denmark (no. 56803/18, §§ 23-26, 12 January 2021) and Salem v. Denmark (no. 77036/11, §§ 49-52, 1 December 2016). 14. Section 24b of the Aliens Act on suspended expulsion orders with a probation period of two years was amended by Act no. 469 of 14 May 2018, which came into force on 16 May 2018. The new provision introduced a scheme of cautioning, which did not provide for a requirement to specify a particular probation period. 15. Section 32 of the Aliens Act was amended by Act no. 469 of 14 May 2018 and Act no. 821 of 9 June 2020. Briefly explained, as a result of the amendments, a re-entry ban was to be imposed for six years if the alien was sentenced to imprisonment for between three months and one year (section 32(4)(iv)); twelve years if the alien was sentenced to imprisonment for between one year and one year and six months (section 32(4)(vi)); and permanently, if the alien was sentenced to imprisonment for more than one year and six months (section 32(4)(vii)). However, the courts were given discretion to reduce the length of re‑entry bans, whether permanent or limited in time (section 32(5)(i)), if the length would otherwise for certain be considered in breach of Denmark’s international obligations, including Article 8 of the Convention. 16. Section 50 of the Aliens Act was amended by Act no. 919 of 21 June 2022. As a result of the amendment, when making a subsequent review of whether an expulsion order should be revoked, the Danish courts are now able to impose a re-entry ban for a shorter period than that previously specified, irrespective of when the criminal offence was committed, if they find, at the time of the review, that a shortening of the period is required to ensure that the expulsion order falls within the scope of Denmark’s international obligations. THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
17. The applicant complained that the High Court’s decision of 1 July 2020, to expel him from Denmark, which had become final on 7 December 2020 (see paragraphs 10 and 11 above), was in breach of Article 8 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Admissibility
18. The Government submitted that the complaint should be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 19. The applicant disagreed. 20. In the Court’s view the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsSubmissions by the parties

21. The applicant submitted that the Danish courts had failed to take the relevant circumstances into account in the balancing test, notably that he had never been issued with a conditional expulsion order, that he had strong ties to Denmark, including a partner and a child, and that he had no ties to Afghanistan. In his view, it had not been established that there were “very compelling reasons” to expel him. Moreover, the re-entry ban issued for twelve years implied very limited opportunities for him to maintain contact with his closest family, and his chances of re-entering Denmark remained purely theoretical. 22. The Government submitted that the Danish courts had thoroughly carried out the proportionality test, balancing the opposing interests and taking all the applicant’s personal circumstances into account. They emphasised the High Court’s observation that his girlfriend had been registered at the applicant’s address only one week before the applicant had been detained pending trial, and that his child had been conceived after the delivery of the District Court’s judgment. Furthermore, the applicant had committed a serious crime, the nature of which could have had serious consequences for the lives of others, and he had a criminal past. The domestic courts had expressly considered the significance of the duration of the re-entry ban in the proportionality test, and had consequently imposed a re-entry ban for twelve years instead of a permanent ban. They had considered the case specifically in the light of Article 8 of the Convention and the Court’s pertinent case-law. Having regard to the subsidiarity principle, the Court should therefore be reluctant to disregard the outcome of the assessment made by the national courts.

Outcome for Article 8: violation