The fundamental human rights of deported foreign nationals may be breached if they are separated from their children in the host country, according to a judgment of the European Court of Human Rights.

Europe’s highest human rights court decreed that the fundamental right of a Dominican woman to enjoy family life was breached when the Norwegian authorities issued a deportation order that would separate her from her two children.

Mirtha Ledy de Leon Nunez had entered and lived in the country illegally for a number of years and, apart from the expulsion order, she was also banned from re-entering Norway for two years.

Ms Nunez had two children from a legally resident co-national and her case was still being treated by the Norwegian authorities. Until the deportation order was issued, the children were being cared for by their mother, who was no longer living with their father.

The European Court’s verdict was not unanimous and two of the seven judges voted against, including Chief Justice Emeritus Vincent De Gaetano, who now sits on the ECHR.

In a dissenting opinion, Judge De Gaetano expressed concern that the case “will send the wrong signal” that persons who are in a country illegally could “somehow contrive to have their residence legitimised through the expedient of marriage and of having children”.

He said the crucial issue in the case was whether the actions of the Norwegian immigration authorities struck a fair balance between Ms Nunez’s right to respect for family life and the state’s legitimate public interest in ensuring “effective and not merely cosmetic or illusory” immigration control.

“We unhesitatingly are of the opinion that in the instant case such a balance was struck and that, therefore, one cannot speak of a violation of article 8 (respect for one’s private and family life, home and correspondence),” Judge De Gaetano said.

However, in its judgment the Court ruled it was not satisfied the Norwegian authorities struck a fair balance between the public interest to ensure effective immigration control and Ms Nunez’s “need to be able to remain in Norway in order to maintain her contact with her children in their best interests”.

Thus, the Court concluded that her expulsion from Norway with a two-year re-entry ban would entail a violation of article 8 of the Convention for Human Rights.

Right to respect for family life

Article 8 of the European Convention for Human Rights says that “everyone has the right to respect for his private and family life, his home and his correspondence”.

It also precludes the authorities from interfering with the exercise of this right except when in accordance with the law and this 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”.

Settling illegally in Norway

Dominican national Mirtha Ledy de Leon Nunez first arrived in Norway on January 26, 1996 as a tourist. She was 20 at the time.

On March 16, she was arrested on suspicion of shoplifting. The next day she accepted a summary fine for theft of goods to the estimated value of €600. On the same date, it was decided to deport her and to prohibit her from re-entry for a period of two years.

The deportation was effected two days later.

Four months later, on July 19, Ms Nunez returned to Norway with a different passport, giving her name as Santa Rita Ozuna Tapia, featuring a different date of birth and indicating an identity number that was not the same as that appearing in her previous passport.

In October 1996, she married a Norwegian national and went on to apply for a residence permit. In her application she stated she had not previously visited Norway and that she had no previous criminal convictions.

She was granted a work permit on January 17, 1997 for a period of one year, which was renewed a number of times. In April 2000, she was granted a settlement permit.

In December 1999, Ms Nunez had applied for Norwegian citizenship but the processing of her application was discontinued as her husband applied for a separation in April 2001.

During the same period, Ms Nunez started cohabiting with a man from the Dominican Republic and who had a settlement permit since 2000. Together, the couple had two daughters, born in June 2002 and December 2003, respectively.

Then, in the summer of 2001 the police received information that Ms Nunez (now under the name Santa Rita Ozuna Tapia) had previously been in Norway under the name Mirtha Ledy de Leon Nunez. She was arrested in December of that same year while working in a hair salon and, in 2002, the Directorate of Immigration revoked her permits.

The Immigration Appeals Board twice rejected her appeal with the final rejection being pronounced in February 2007.

She again asked the appeals board to reconsider its decision given that her expulsion from Norway would mean separation from her children but this was refused.

Subsequently, Ms Nunez took her case before the Norwegian courts but lost her appeal. She then went to the ECHR where the judgment of the Norwegian court was overturned in a 5-2 verdict that found Ms Nunez’s fundamental human right to respect for family life had been breached.

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