AL-BAYATI proti Německu

FOURTH SECTION

DECISION

Application no. 12538/19
Isam AL-BAYATI
against Germany

The European Court of Human Rights (Fourth Section), sitting on 22 November 2022 as a Committee composed of:

Armen Harutyunyan, President,
Anja Seibert-Fohr,
Ana Maria Guerra Martins, judges,
and Veronika Kotek, Acting Deputy Section Registrar,

Having regard to:

the application (no. 12538/19) against Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 March 2019 by an Iraqi national, Mr Isam Al-Bayati (“the applicant”), who had been granted legal aid and who was represented by Mr P. Münnighoff, a lawyer practising in Bochum;

the decision to give notice of the application to the German Government (“the Government”), represented by two of their Agents, Mr H.-J. Behrens and Ms N. Wenzel, of the Federal Ministry for Justice and Consumer Protection;

the parties’ observations;

the comments submitted by the European Centre for Law and Justice, who was granted leave to intervene by the President of the Section;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The applicant arrived in Germany as an adult in 1999. He applied for asylum, was recognised as a refugee and granted a residence permit based on his protection needs. In July 2007 the Federal Office for Migration and Refugees revoked his refugee status and found that there were no obstacles to his removal to his country of origin. The applicant appealed that decision; the Augsburg Administrative Court rejected his appeal in 2016. These proceedings are not at issue in the present case.

2. Prior to the decision on the aforementioned appeal being rendered, the applicant, in view of the expiry of his residence permit of a fixed duration, applied for its extension and, in October 2007, requested that he be granted a permanent residence permit. By order of 28 December 2009, the government of Upper Bavaria (“the authority”), after hearing the applicant in person, dismissed the applicant’s request and ordered his expulsion, with a re-entry ban. Relying, inter alia, on the assessment of the competent domestic intelligence service, which had interviewed the applicant, the authority found, in particular, that the applicant at least supported a terrorist organisation, Ansar al-Islam (AAI), and that he posed a threat to national security. The authority considered that the public interest in the applicant’s exclusion from German territory outweighed his interest to remain. While he had been in Germany for some ten years, he had not integrated in a significant manner. He had worked for different companies for most of his stay, but he was currently unemployed and living off social welfare benefits. His command of German was poor and his social contacts appeared to consist of other Iraqis. Moreover, he had repeatedly been in conflict with the law, as illustrated by several criminal investigations against him on different charges and a criminal conviction for unlawfully carrying a firearm. By contrast, he had spent the majority of his life in Iraq, where he had qualified for a profession, continued to have relatives and was familiar with culture and language. His removal did not render impossible his family life with his wife and children. In particular, the entire family could live in Türkiye, given that his wife – whom he had married in February 2007 – was a Turkish national, that all family members spoke Turkish and that the children – who were born in 2005 and 2006 – were of a very young and adaptable age.

3. On 18 January 2011 the Augsburg Administrative Court granted the applicant’s appeal against the expulsion order. It found that there was not sufficient evidence to conclude that he supported a terrorist organisation, nor that he was a threat to national security. Moreover, the balancing exercise carried out by the authority was flawed as it had not sufficiently taken the applicant’s right to respect for his family life into account.

4. On 27 October 2017 the Bavarian Administrative Court of Appeal, after holding an oral hearing, granted the authorities’ appeal and quashed the Administrative Court’s judgment, finding that the public interest in the applicant’s removal outweighed his interest in remaining (Section 53, sub‑section 1, of the Residence Act). There was, on the one hand, a particularly serious public interest in expelling the applicant since he had supported a terrorist organisation (AAI) between 2004 and 2006 and continued to pose a threat to national security. Both the Administrative Court of Appeal and criminal courts had repeatedly found that AAI was an organisation supporting terrorism as long as it existed as a separate group; in 2014 AAI and a good part of its members joined another terrorist organisation, “Islamic State in Iraq”. In finding that the applicant knowingly supported AAI, the court had regard to the circumstances in their entirety and relied, in particular, on the illegal financial transactions performed by the applicant via the “Hawala” money remittance system, of an amount totalling at least 125,000 euros, which had led to his criminal conviction in 2011 for wilful violation of the Banking Act on twelve counts and to his sentence of 150 day-fines. The applicant had close contact with three Iraqi nationals who were supporting AAI as members of the “Augsburg branch” and with whom he regularly visited a mosque in that city. The applicant was not only involved in fundraising efforts pursued on behalf of AAI in that mosque, but he also organised the transfer of the money to Iraq. Having regard to these close ties and to evidence obtained via telephone tapping and other surveillance measures, which revealed conspirative efforts in respect of how to testify in relation to, inter alia, the money transfers carried out by the applicant as well as Islamic extremist attitudes held by him, the court concluded that the applicant was involved in the “Augsburg branch” of AAI and was tasked with transferring money to Iraq, in particular, to finance that organisation’s terrorist activities there. Even though his acts of support had taken place years ago, the applicant had never distanced himself from them and continued to pose a threat to national security, as it was sufficiently likely that he continued to be willing to support terrorist organisations, such as “Islamic State in Iraq”, in their pursuit of terrorist activities.

5. On the other hand, the applicant had a particularly serious interest in remaining in Germany as he was living, since 2010, with his two minor children who both held German nationality. The court moreover considered in favour of the applicant that he had been living in Germany since 1999, that his residence had been lawful for more than seven years and that his acts on behalf of AAI were at the lower end of the spectrum of dangerousness and had occurred more than ten years ago.

6. However, having regard to his significant involvement in AAI, his close contact over years with three AAI members who were sentenced to lengthy prison sentences, his deliberate logistical and financial support to that organisation and his contacts of which “Islamic State of Iraq” could make use, the court concluded that the applicant posed a significant security threat. It also considered in favour of the proportionality of the applicant’s expulsion that he had been criminally convicted twice, that he had not integrated into society in economic terms, living off social welfare benefits, and that he had the possibility to request that the duration of the re-entry ban be limited in view of his family ties.

7. The applicant’s request to the Federal Administrative Court for leave to appeal on points of law was of no avail, as was his constitutional complaint to the Federal Constitutional Court (no. 2 BvR 1735/18, order of 10 October 2018).

8. The applicant complained under Article 8 of the Convention that the expulsion order against him, with a re-entry ban, violated his right to respect for his family life with his wife and their two minor children.

9. After the applicant had lodged the present application, and after his deportation had initially proved impossible because he lacked the documents necessary for removal, he was deported to Iraq on 12 October 2021. In the meantime, and outside the scope of the proceedings leading to the present application, the competent authority ordered, by notice of 15 January 2020, that the re-entry ban against the applicant may be lifted on request after fifteen years. The applicant appealed that notice before the competent administrative court; no further information was provided to the Court on those proceedings.

THE COURT’S ASSESSMENT

10. It is not in dispute between the parties that the applicant enjoyed “family life” within the meaning of Article 8 § 1 of the Convention with his wife and children.

11. While the applicant had been granted a formal right of residence in Germany for some seven years, the present case does not concern the subsequent withdrawal of such right of residence. The applicant’s right of residence was based on his refugee status, which was revoked in July 2007, with the competent authority determining that there were no obstacles to his removal. That decision became final only in 2016 (see paragraph 1 above). The proceedings at issue in the present application were initiated by the applicant, who requested a residence permit in view of expiry of his permit of a fixed duration (see paragraph 2 above). In view of the foregoing, the applicant qualifies neither as a “settled migrant” nor as an alien who had to be aware of the precariousness of his immigration status from the outset (compare Pormes v. the Netherlands, no. 25402/14, §§ 51-58 and 61, 28 July 2020). Consequently, the balancing of the competing interests has to be carried out from a neutral starting point in the sense that the impugned measure did neither require very serious reasons in order to be justified under Article 8 of the Convention (which would have been the case if the applicant had been a settled migrant who had lawfully spent all or the major part of his childhood and youth in the host country) nor that that provision would be breached in exceptional circumstances only (which would have been the case if he had had to be aware of his precarious immigration status from the outset; see ibid., § 61).

12. In this connection, it is not necessary to determine whether the impugned decision constituted an interference with the applicant’s rights under Article 8 or whether it constituted an alleged failure to comply with a positive obligation, since the applicable principles are in any event similar (see T.C.E. v. Germany, no. 58681/12, §§ 56-57, 1 March 2018). Even assuming that there was an interference, it was “in accordance with the law” (Section 53, sub-section 1, of the Residence Act) and pursued legitimate aims foreseen in Article 8 § 2 of the Convention, namely the protection of public safety and the prevention of disorder and crime.

13. The domestic authorities, which engaged in a balancing of the competing interests at several levels of jurisdiction (compare Pormes, cited above, § 68), relied, in particular, on the determination that the applicant continued to pose a threat to national security in view of his support for a terrorist organisation. In respect of this security assessment, the applicant was heard orally on multiple occasions and was able to know and to challenge the evidence against him. Having regard to the evidence in the file, the Court cannot discern any indications of arbitrariness in the assessment of the domestic authorities, notably that of the Administrative Court of Appeal, which thoroughly addressed the applicant’s submissions in this respect.

14. It follows from the Court’s case-law that the seriousness of the threat posed by the applicant may outweigh other criteria to be taken into account in the balancing exercise (see, mutatis mutandis, Salem v. Denmark, no. 77036/11, § 76, 1 December 2016). Indeed, this is precisely what the Administrative Court of Appeal determined to be the case, despite weighing as a “particularly serious interest” to remain that the applicant lived with his two minor children who held German nationality (see paragraph 5 above). In this connection, the Court also has regard to two additional aspects. Firstly, the administrative authority considered that the entire family could live in Türkiye, given that the applicant’s wife was a Turkish national and that the children and the applicant spoke Turkish (see paragraph 2 above). Secondly, the children were able to enjoy a “lived” relationship with the applicant throughout their childhood and most of their adolescence, as they were aged fifteen and sixteen years at the time of the applicant’s deportation in 2021 (see T.C.E. v. Germany, cited above, § 61).

15. In light of the foregoing, and noting that the domestic authorities also engaged with additional aspects of relevance in their balancing exercises – including the duration of the applicant’s stay and the level of his integration in Germany as well his ties to Iraq –, the Court concludes that the domestic authorities struck a fair balance between the competing interests and did not overstep their margin of appreciation. It follows that the applicant’s complaint is manifestly ill-founded and must be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 December 2022.

Veronika Kotek Armen Harutyunyan
Acting Deputy Registrar President