AL-NASHIF v. BULGARIA JUDGMENT
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There were therefore no exceptional circumstances capable of destroying
the family link between the first applicant and his children, the second and
the third applicants. Further, Mr Al-Nashif and Mrs Saleh did not separate.
2. Whether there was an interference with the applicants' family life
114. The Court observes that no right of an alien to enter or to reside in a
particular country is as such guaranteed by the Convention. As a matter of
well-established international law and subject to its treaty obligations, a
State has the right to control the entry of non-nationals into its territory (see,
among other authorities, Boultif v. Switzerland, no. 54273/00, ECHR
2001-IX, § 39). Where immigration is concerned, Article 8 cannot be
considered to impose on a State a general obligation to respect the choice by
married couples of the country of their matrimonial residence and to
authorise family reunion in its territory (see the above cited Gül judgment,
§ 38).
However, the removal of a person from a country where close members
of his family are living may amount to an infringement of the right to
respect for family life as guaranteed in Article 8 § 1 of the Convention (see,
the above cited Boultif judgment).
115. In the present case it is undisputed that the first applicant was a
stateless person and that he and his wife, Mrs Saleh, who apparently was
also a stateless person, were lawfully resident in Bulgaria on the strength of
permanent residence permits. The couple had moved to Bulgaria in 1992,
soon after their marriage, and had lawfully established their home there.
Their children, the second and the third applicants, were born in Bulgaria,
acquired Bulgarian nationality, and started school there.
Therefore, the deportation of Mr Al-Nashif in 1999 interfered with the
applicants' family life.
116. Such an interference will infringe the Convention if it does not
meet the requirements of paragraph 2 of Article 8. It is therefore necessary
to determine whether it was “in accordance with the law”, motivated by one
or more of the legitimate aims set out in that paragraph, and “necessary in a
democratic society”.
3. Whether the interference was “in accordance with the law”
117. It was undisputed – and the Court accepts – that Orders nos. 503
and 504 had a basis in the relevant domestic law.
118. The applicants alleged, however, that the applicable law lacked the
clarity and foreseeability required by the concept of lawfulness as enshrined
in the Convention, since it authorised the Ministry of the Interior to deport
persons who had never been convicted or investigated on the basis of orders
issued without examination of evidence, without the possibility of
adversarial proceedings, and without giving reasons.