1. The case originated in an application (no. 12020/09) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 3 March 2009 by the following applicants ("the applicants"): Mr Kinsley Chike Udeh, a Nigerian national who was born in 1972 and lives in Switzerland (the first applicant), his ex-wife, Mrs Michèle Udeh, a Swiss national who was born in 1984 (the second applicant), and their daughters, Naira Johanna Udeh and Uzoma Elisa Udeh, who were born in 2003 and have both Swiss and Nigerian nationality (the third and fourth applicants).

2. The applicants were represented by Dr. J. Rinceanu and Dr. A. Noll, lawyers practising in Freiburg (Germany) and Basle (Switzerland), respectively. The Swiss Government ("the Government") were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice (European law and international human rights protection unit).

3. The applicants alleged in particular that the refusal to grant the first applicant leave to remain breached their right to respect for their family life within the meaning of Article 8 of the Convention.

4. On 17 September 2010 notice of the application was given to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

5. On 1 February 2011 the Court's Sections were reorganised. The application was assigned to the Second Section (Rules 25 § 1 and 52 § 1 of the Rules of Court).

6. On 18 August 2001, the first applicant, under a false identity and claiming that he was born in 1983, was sentenced by an Austrian court (the Jugendgerichtshof in Vienna) to a suspended term of four months' imprisonment for a drugs offence relating to the possession of a small quantity of cocaine.

7. He entered Switzerland in November 2001. On 18 January 2002 the competent Swiss authorities declared inadmissible his asylum application, which had been lodged under a false identity. He left Switzerland at an unknown date but returned there on 2 September 2003.

8. On 1 November 2003 the first applicant married a Swiss national who had shortly before given birth to their twin daughters (the third and fourth applicants). By virtue of his marriage he was granted leave to remain in Switzerland (the couple have since got divorced, see paragraph 19 below).

9. On 6 August 2006 the first applicant was arrested in Germany for drug trafficking and sentenced to 42 months' imprisonment (judgment of the District Court of Cleves (Germany) of 24 November 2006). The competent authorities considered it established that he had attempted to import 55 doses of pure cocaine, with a total weight of 257 grammes, by swallowing the drug (bodypacking).

10. In a decision of 23 August 2007, the Office of Migration for the Canton of Basle-Rural found that the first applicant's leave to remain had become null and void as, having been held in a German prison where he was serving his sentence, he had been outside Switzerland for over six months. In addition, the Office of Migration took the view that he should not be re-issued with a permit, as the fact that he had been convicted and his family were living on benefits constituted grounds for his removal.

11. Both the first applicant and his wife, in their own names and on behalf of their children, challenged that decision first before the cantonal government, which rejected their appeals, and then before the Basle-Rural Cantonal Court, which also dismissed their appeals in a decision of 14 May 2008.

12. On 5 May 2008 the first applicant was granted early release from the German prison where he had been serving his sentence.

13. In a judgment of 8 January 2009 the Federal Court dismissed an appeal by the applicants at last instance. It pointed out that the first applicant had twice been convicted of drugs offences. It found that the offence of which he had been convicted in Germany carried sufficient weight for it not to be relevant that a sentence imposed in Switzerland might have been slightly less harsh. It further observed that the trafficking in question, concerning more than 18 grammes of pure cocaine, constituted a serious case within the meaning of section 19(2) of the Federal Narcotics and Psychotropic Substances Act, punishable by at least one year's imprisonment. It further found that the fact that the first applicant had offended on only two occasions was of little relevance for the examination of the case.
The court nevertheless admitted that the applicants had been at pains to overcome their reliance on benefits, but also observed that in the meantime they had, on that basis, received a sum which totalled 165,000 Swiss francs (CHF) (about 137,500 euros (EUR)). In addition, it noted that the first applicant had been living with his family in Switzerland only since October 2003 and that he had no real professional activity, even though this was probably connected to the fact that he had tuberculosis.
Moreover, the Federal Court took the view that, having regard to the first applicant's bleak job prospects, re-offending could not be ruled out. It further considered that, as he did not speak German very well and mainly socialised with migrants from his own country, he had not integrated in Switzerland.
However, the Federal Court did not deny that the applicants enjoyed a real and close family life. It found that the refusal to grant the first applicant a residence permit would probably affect them badly, especially as they could not be obliged to follow him to Nigeria. As far as the first applicant was concerned, the court took the view that he still had an unbroken family network in that country and that he would be able to re-integrate there quite easily.

14. In a letter of 26 January 2009, the Office of Migration for the Canton of Basle-Rural informed the first applicant that he had to leave Switzerland by 31 March 2009.

15. In a decision of 10 March 2009 the President of the First Section rejected a request for interim measures under Rule 39 of the Rules of Court.

16. Between 15 and 17 September 2009 the first applicant was placed in detention pending his removal.

17. On 23 April 2010 the first applicant was officially declared to have disappeared. On 25 September 2010 he was arrested by the authorities of the Canton of Basle-Rural. In a decision of 28 September 2010 the competent court of that Canton confirmed his detention pending removal until 24 November 2010. In the meantime he separated from his wife. The applicant nevertheless allegedly maintained some contact with his children. The detention was subsequently extended. He was released on 25 January 2011.

18. On 25 January 2011 the Federal Office of Migration banned the first applicant from entering Switzerland with effect until 26 January 2020. It was possible for the ban to be temporarily suspended further to a reasoned request and should it be deemed necessary (see paragraph 21 below). In a letter of 21 August 2012 the first applicant's representatives informed the Court that the decision of 25 January 2011 had become final. They added that the first applicant was still living in Switzerland, but had separated from his wife. They alleged that he did his best to maintain regular contact with his children.

19. In a letter of 31 December 2012 one of the first applicant's two lawyers informed the Court that he and his Swiss wife had got divorced. The lawyer also explained that he had a third child, a daughter born on 21 August 2012 from a relationship with another Swiss national. He was now living with her and wanted to marry her as quickly as possible.
The lawyer attached a copy of a divorce-related judgment from the Liestal District Court dated 27 September 2012, notified to the first applicant's other lawyer on 2 October 2012. It showed that custody had been awarded to the mother but that the first applicant had access rights in respect of his first two children, limited to one afternoon at least every two weeks.
This new information was duly communicated to the parties and they were invited to submit observations (see paragraphs 28 and 36 below).

20. The right of abode of the spouse of a Swiss national, together with the conditions to be satisfied for renewal of leave to remain, were governed by the former Residence and Settlement of Aliens Act of 26 March 1931, of which the relevant provisions read as follows:

21. Section 67 of the Federal Act on Foreign Nationals of 16 December 2005 governs entry bans imposed on foreign nationals whose expulsion has been decided. Sub-section 5 authorises the competent authority to suspend an entry ban temporarily or indefinitely:

22. The applicants complained that the enforcement of the refusal to grant the first applicant leave to remain would ruin their family life, relying on Article 8 of the Convention, which reads as follows:

23. The Government contested that argument.

(...)

1. The parties' submissions

(a) The applicants

25. The applicants did not deny that the first applicant's expulsion had a sufficient legal basis and pursued legitimate aims within the meaning of Article 8 § 2 of the Convention. However, unlike the Government, they argued that the impugned measure was not necessary in a democratic society.

26. Since the Swiss courts and the Government had sought to rely on the fact that the applicants were dependent on welfare benefits, they alleged that the first applicant had found employment quite quickly after being released in May 2008. It was thus not to be excluded, from that point in time, that they would not need to be supported by the State.

27. The applicants further argued that the first applicant had committed only one serious offence, for which he had served his sentence in full. They alleged that his conduct in prison had been exemplary, as shown by his early release. In addition, they explained that he had never committed the slightest offence in Switzerland -- the main offence of which he had been convicted having been committed in Germany -- and that his conduct since his release had also been irreproachable. As a result, he could no longer be regarded as a threat to public order or safety in Switzerland.

28. The applicants also submitted that the twin daughters should, under Article 8 of the Convention, be entitled to regular contact with their father. Moreover, the first applicant had become the father of a third child in 2012, from a relationship with another Swiss national. He was now living with her and they hoped to get married as soon as possible.

29. In view of the foregoing, the applicants were convinced that the impugned measure was disproportionate and was not therefore necessary in a democratic society.

(b) The Government

30. Referring to the above-cited provisions (see paragraphs 20 et seq. above), the Government submitted that the interference was in accordance with the law. They further argued that the first applicant's expulsion pursued legitimate aims within the meaning of Article 8 § 2, namely, the prevention of disorder or crime, public safety, the economic well-being of the country and the protection of the rights and freedoms of others.

31. The Government were convinced that the measure was also necessary in a democratic society. They took the view that, having regard to the quality of the drugs transported (257 grammes of pure cocaine) and the harsh sentences (4 then 42 months imprisonment for drugs offences), the first applicant's case was a serious one. They pointed out in this connection that the Court had always been very strict vis-à-vis individuals who had been convicted of drug-related offences.

32. The Government accepted that, according to their information, the first applicant had not been convicted again after serving his sentence. They nevertheless argued that the fact he had been sentenced to 42 months' imprisonment suggested that he would remain a threat to public order and safety. They added in this connection that neither his marriage nor his job had prevented him from committing the offence in question.

33. The Government further pointed out that the applicants had lived on benefits for significant periods.

34. The Government also observed that the first applicant had been raised in Nigeria and had entered Switzerland at the age of 21. He should therefore still have a family network in that country and could not credibly claim that his social ties with Nigeria had become broken on account of the years he had spent in Switzerland and Germany. There was no indication that he would no longer be able to integrate into Nigerian society. Furthermore, the first applicant had not really settled professionally in Switzerland. According to the Federal Court, he could not speak German very well and socialised mainly with his compatriots.

35. The Government further observed that the first and second applicants were now divorced. The daughters were living with their mother and the contacts that the first applicant claimed to have maintained would not suddenly be made impossible in the event of his removal.

36. As regards, moreover, the first applicant's relationship with his new girlfriend, whom he wished to marry and with whom he had a child, the Government submitted that it had begun at a time when he had no residence permit and no prospect of obtaining one, as his girlfriend must have known. The Government took the view that, without wishing to speculate as to the decision of the parents concerning that third child, it was still very small and could integrate into Nigerian society if need be. Moreover, according to information available to the Government, the child's paternity had not been recognised by the first applicant.

37. The Government concluded that the Swiss authorities had quite rightly, after a detailed examination of the case, held that the first applicant's expulsion was a measure that was necessary in a democratic society for the purposes of Article 8 § 2 of the Convention. The authorities could not therefore be found to have overstepped the margin of appreciation afforded to them in the present case. Accordingly, there had been no violation of Article 8.

2. The Court's assessment

(a) Interference with the right protected by Article 8

38. The Court reiterates that the Convention does not guarantee the right of an alien to enter, or to reside in, a particular country. 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, to this effect, Moustaquim v. Belgium, 18 February 1991, § 36, Series A no. 193).

39. In the present case, the Federal Court, in its judgment of 8 January 2009, confirmed the first applicant's expulsion. In addition, the Federal Office of Migration banned him from entering Switzerland with effect until 26 January 2020. Those decisions entail his separation from his twin daughters, who have Swiss nationality. He has thus sustained interference with his right to respect for his family life, even though the removal decision has not yet been enforced.

(b) Whether the interference was justified

40. 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", justified by one or more of the legitimate aims set out in that paragraph, and "necessary in a democratic society".

(i) "In accordance with the law"

41. It is not in dispute that the decision to remove the first applicant from Switzerland was based on the relevant provisions of the Residence and Settlement of Aliens Act (see paragraph 20 above).

(ii) Legitimate aim

42. Nor is it a matter of dispute that the interference at issue pursued aims that were fully compatible with the Convention, in particular "the prevention of disorder or crime".

(iii) Necessary in a democratic society

alpha) General principles

43. It thus remains to be ascertained whether the measure was necessary in a democratic society.

44. At the outset, it should be reiterated that, as a matter of well-established international law and subject to their treaty obligations, States are entitled to control the entry and residence of aliens on their territories (see, among many other authorities, Abdulaziz, Cabales and Balkandali v.the United Kingdom, § 67, 28 May 1985, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Mehemi v.France, 26 September 1997, § 34, Reports 1997-VI; Dalia v. France, 19 February 1998, § 52, Reports 1998-I; Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001-IX; and Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X).

45. In the case of v. the Netherlands ([GC], no. 46410/99, §§ 54-60, ECHR 2006-XII), the Court had occasion to sum up the criteria which should guide domestic courts in such cases (§§ 57 et seq.):

beta) Application of those principles in the present case

46. As regards the present case, the Court recognises that the first applicant's conviction on 24 November 2006 by the District Court of Cleves (Germany) for a drugs offence (42 months' imprisonment for attempting to import 55 doses of pure cocaine, totalling 257 grammes) is admittedly a factor that weighs heavily against him. As to his conviction of 18 August 2001, it was decided by the Youth Court (Jugendgerichtshof) of Vienna, which had been misled by the first applicant as to his identity and age (see paragraph 6 above). In reality, he committed the offence in question as an adult, when he was already 29. Accordingly, it was not a matter of juvenile crime. The offence was not punished very seriously, by just four months' imprisonment. It was established that the first applicant had been carrying only a small amount of cocaine. Moreover, he was given a suspended sentence. The Court thus finds that this conviction should be seen for what it is.

47. It should be observed that the first applicant's criminal behaviour was confined to those two acts. The present case can thus be distinguished, in particular, from that of Emre v. Switzerland (no. 42034/04, §§ 72-76, 22 May 2008), where the applicant had been convicted of over 30 offences. It cannot therefore be said that the first applicant displayed any real criminal drive or potential.

48. The Court further observes that the first applicant entered Switzerland for the first time in November 2001 and filed an asylum application there unsuccessfully. After leaving Switzerland at an unspecified date, he returned in September 2003 and married a Swiss national there two months later. He stayed in the country until August 2006, when he was arrested and taken into custody in Germany. On 5 May 2008, after serving his sentence and benefitting from early release, he went back to Switzerland and has been living there to date (see paragraph 12 above). When the Federal Court delivered its judgment, on 8 January 2009, he had thus been in Switzerland for over three and a half years. Today, at the time of the adoption of the present judgment, if the removal order has not been enforced, the total length of his residence in Switzerland will have amounted to seven and a half years, which is a considerable length of time in a person's life. There does not seem to be any doubt that Switzerland has, for quite a long time, been the centre of the first applicant's private and family life.

49. The Court observes that it was not in dispute between the parties that the first applicant's conduct in prison and after his release on 5 May 2008 had been irreproachable. That positive evolution, and in particular the fact that he was released on licence after serving only part of his sentence, can be taken into account in weighing up the interests at stake (see, in particular, Maslov, cited above, §§ 87 et seq., and Emre v. Switzerland (no. 2), no. 5056/10, § 74, 11 October 2011). In this connection, the Court regards as speculative the Government's argument that the fact that he had been sentenced to 42 months' imprisonment suggested that he would remain a threat to public order and safety.

50. The Court would point out that the Federal Court did not call into question the fact that the first applicant had a genuine and close relationship with his ex-wife and the children they had together. Nor was that disputed by the Government. The couple have since got divorced. However, it can been seen, in particular, from the first applicant's letters of 21 August and 31 December 2012 that he has endeavoured to maintain regular contact with his children. The divorce-related judgment of 27 September 2012 from the Liestal District Court further shows that custody of the two children was awarded to the mother but that the first applicant was granted access rights, currently limited to one afternoon at least every two weeks. Accordingly, the Court finds that the applicants are entitled to rely on Article 8 of the Convention; moreover, the principal offence was committed by the first applicant after the two children had been conceived; in other words, his wife could not have been aware of it at the time when the family relationship was created, this being a factor of considerable importance in the assessment of the present case. However, as regards the first applicant's relationship with his new girlfriend and the birth of a child from that relationship, those facts cannot be taken into consideration in the Court's examination, given that they occurred at a time when his right to stay in Switzerland was already insecure. He is not therefore entitled to rely on this situation in the context of the present case, even if he does get married again.

51. The Federal Court further observed that the first applicant had been raised in Nigeria and that he should therefore still have an unbroken family network in that country. It took the view that he would be able to integrate quite easily in his country of origin. By contrast, he was not very well integrated in Switzerland, neither professionally nor socially, and did not speak German very well. It is not for the Court to call into question those allegations, which are not a matter of dispute between the parties. It would simply point out that the Federal Court recognised the efforts made by the applicants to overcome their reliance on benefits and that it did not rule out that the first applicant's illness (tuberculosis) might have contributed to the fact that he had no real gainful activity.

52. The Court further observes that the twin daughters, who have Swiss nationality, were born in 2003. The first applicant's removal is likely to result in their being brought up separated from their father. According to the Federal Court, the second, third and fourth applicants could hardly be obliged to follow the first applicant to Nigeria. In any event, the Court takes the view that it is in the daughters' best interests to grow up with both parents and, as the latter are now divorced, the only way for regular contact to be maintained between the first applicant and his two children is to authorise him to remain in Switzerland, given that the mother could not be expected to follow him to Nigeria with their two children.

53. Lastly, the Government claimed that the contacts between the first applicant and his two daughters would not be rendered impossible if he were to return to Nigeria. The Court observes that, in a decision of 25 January 2011, the Federal Office of Migration imposed on the first applicant a ban on entering Switzerland with effect until 26 January 2020. As to the possibility for the applicants to request a temporary or indefinite suspension of the expulsion measure, a possibility that arose from the said decision (see paragraphs 18 and 21 above), the Court takes the view that, even if the competent authorities were to grant such a request, the temporary measures could by no means be regarded as replacing the applicants' right to enjoy their right to live together, which constitutes one of the fundamental aspects of the right to respect for family life (see, mutatis mutandis, Agraw v. Switzerland, no. 3295/06, § 51, and Mengesha Kimfe v.Switzerland, no. 24404/05, §§ 69-72, both of 29 July 2010).

54. In view of the foregoing, and particularly having regard to the first applicant's first two children, to the genuine family relationship between them and to the fact that the first applicant committed only one serious offence and his subsequent conduct has been irreproachable, suggesting a positive evolution in the future, the Court finds that the respondent State overstepped the margin of appreciation afforded to it in the present case.

55. Accordingly, there would be a violation of Article 8 of the Convention in the event of the first applicant's expulsion.

(...)

For these reasons, the court

Done in French, and notified in writing on 16 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Jociene and Lorenzen is annexed to the present judgment.

We are unable to agree with the majority that the first applicant's expulsion to Nigeria would entail a violation of Article 8 of the Convention. The relevant facts of the case can be summarised as follows.

The first applicant, who is a Nigerian national, arrived in Switzerland in November 2001 at the age of 29 and under a false identity. Prior to his arrival he had been convicted in Austria of a drugs offence and given a suspended sentence of four months' imprisonment. After his application for asylum was rejected by the Swiss authorities he left Switzerland at an unknown date, but returned in September 2003 and, shortly afterwards, married a Swiss national with whom he has twin daughters, born the same year. Less than three years later he was detained and convicted in Germany on a serious charge of drug trafficking, for which he was sentenced to three years and six months' imprisonment. After his release on licence in May 2008 he returned to live in Switzerland with his wife and daughters. He separated from his wife in 2010 and they got divorced in October 2012.

In evaluating the criteria which are relevant in deciding whether an alien's expulsion is justified under Article 8 of the Convention, we consider that the first applicant's conviction in Germany for drug trafficking weighs heavily against him. Thus, the Court has often in the sphere of drug dealing stressed its understanding of the domestic authorities' firmness as regards those actively involved in the spread of this scourge (see, for instance, Maslov v. Austria [GC], no. 1638/03, § 80, ECHR 2008). We also attach importance to the fact that the first applicant arrived in Switzerland as an adult and under a false identity, that his stay in that country prior to his conviction in Germany was relatively short and that he has now lived apart from his Swiss wife for some years. We totally agree with the majority that the fact that he is now living with another woman, with whom he had a daughter in August 2012, cannot be taken into account.

It is true that expulsion to Nigeria would make it difficult for the first applicant to maintain regular contacts with his daughters, although it does not appear to be excluded that access rights could be exercised in Nigeria, or in Switzerland, by way of a temporary permit to stay there. In any event, his difficulties in that respect cannot in our opinion outweigh the above-mentioned elements, which militate against him.

In conclusion, we do not find that the Swiss authorities overstepped the margin of appreciation afforded to them in this area. It follows that there has been no violation of Article 8 of the Convention.