Conditional and unconditional expulsion

Case no. 257/2015 and case no. 259/2015
Judgments delivered on 10 May 2016

The Public Prosecutor
vs.
T1

and

The Public Prosecutor
vs.
T2

In both cases, the conditions for expulsion laid down in the Danish Aliens Act had been fulfilled. Accordingly, they should be expelled, unless this would be in contravention of Denmark's international obligations. The question was whether expulsion would be in violation of article 8 of the European Human Rights Convention, and this depended on a proportionality assessment based on the criteria set up by the European Court of Human Rights in expulsion cases.

In the first case, T1 had arrived in Denmark from Iraq at the age of seven and had grown up in this country. He was now 20 years old and had been sentenced to imprisonment for one year for assault, among other things, including 10 months' conditional imprisonment from a previous conviction. He was a minor when he committed most of the offences for which he had received the conditional sentence, including a robbery, and this had to be given special consideration, although he was now an adult.

After having been granted a residence permit in Denmark, T1 had only been to Iraq once. His mother and sister lived in Iraq, just as he had more distant relatives in the country. However, he currently had no contact with any of them. Importance had to be given to the fact that he spoke some Arabic, but was not able to write it. He thus had ties to Iraq beyond his citizenship.

Except for one year in Iraq, he completed his entire schooling in Denmark. He spoke and wrote Danish and had started studies in Denmark where he had lived for well over half his life. He thus had to be regarded as having strong ties with Denmark, although he no longer had close relatives here, because his father had moved to Sweden.

Based on an overall assessment of all the facts in the case, the Supreme Court found that expelling T1 would amount to a disproportionate restriction of this right to privacy in violation of article 8 of the European Human Rights Convention. The Supreme Court thus sentenced him to conditional expulsion.

The High Court had come to the conclusion that he could be suspended unconditionally.

In the second case, T2 had arrived in Denmark from Afghanistan when he was 15 years old. He was now 25 and had been sentenced to imprisonment for three months for, among other things, aggravated assault. He had previously been imprisoned for 30 days for, among other things, vandalism and possession of knives in public places. At that time, importance had been given to the fact that he was involved in the gang scene. His personal circumstances still had to be regarded as unstable, and on this basis, the Supreme Court stated that there was a significant risk that he would continue to commit crimes in Denmark if he was not expelled.

T2's father and two half-sisters lived in Denmark, and he had indicated that he had been in a steady relationship since 2015, but did not live with his girlfriend. He had not managed to pursue an education or keep a job, just as he had no permanent address. However, there was no doubt that his ties with Denmark were so strong that expelling him with a six-year entry ban would be significantly detrimental to him.

T2 was an Afghan citizen, born and raised in Afghanistan where he had lived for the first 15 years of his life. He spoke and understood the language of the country. He thus has significant social and cultural ties to Afghanistan. His sister, whom he was in contact with, lived in Afghanistan, which meant that he also had family ties to the country.

Based on an overall assessment of all the facts in the case, the Supreme Court found that expelling T2 with a six-year entry ban could be regarded as a proportionate measure aimed at preventing disorder or crime. As the expulsion was thus not in contravention of Denmark's international obligations, the Supreme Court agreed that the conditions for expulsion had been fulfilled.

The High Court had reached the same conclusion.