Etter å ha lest tekstutdragene skal følgende spørsmål (1, 2 og 3) besvares:

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1 Page 1 of 5 EKSAMENSOPPGAVE JUS Menneskerettigheter - Høst 2017 Dato: 12. desember Tid: kl Nedenfor følger tekstutdrag fra to EMD-dommer. Begge saker er fra innvandringsfeltet og omhandler en klager med barn. Felles for sakene er at det i staten er fattet vedtak om utvisning av klageren, som følge av at klageren har begått lovbrudd. Dersom utvisning gjennomføres, vil det føre til en splitting av forelder (det vil si klager) og barn. Spørsmålet i begge saker er om utvisningsvedtaket strider mot EMK artikkel 8. Begge tekstutdrag er fra den delen av dommene der EMD gir en generell beskrivelse av hvilke momenter som har betydning når den skal ta stilling til om det foreligger konvensjonsbrudd i denne type saker. For å besvare denne oppgaven, trenger du kun å forholde deg til tekstutdragene. Hva som ble resultatet i den enkelte sak, er ikke tema. Etter å ha lest tekstutdragene skal følgende spørsmål (1, 2 og 3) besvares: 1. I møte med EMDs funksjon som håndhever av EMK, har konvensjonspartene de senere år vært opptatte av å tydeliggjøre betydningen av prinsippet om subsidiaritet samt læren om statenes skjønnsmargin. På bakgrunn av tekstutdragene nedenfor: Gi en beskrivelse og vurdering av hvorvidt og hvordan EMD gjennom sine formuleringer responderer på dette. 2. Barnekonvensjonen (BK) artikkel 3 nr. 1 omhandler barnets beste som rettighet. Innholdet i bestemmelsen er utdypet gjennom Barnekomiteens generelle kommentar nr. 14.

2 Page 2 of 5 På bakgrunn av tekstutdragene nedenfor: Gi din vurdering av i hvilken grad EMDs beskrivelse av hvordan den integrerer hensynet til barna er i tråd med BK artikkel 3 nr. 1 om barnets beste. 3. På bakgrunn av dine vurderinger i 1) og 2): Diskuter hvordan dette spiller inn i nasjonale domstolers forståelse av innholdet i Grunnloven 102 og 104. TEKSTUTDRAG: EMD, JEUNESSE MOT NEDERLAND, dom 3. oktober 2014: B. The Court s assessment 2. Relevant principles 106. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective respect for family life. However, the boundaries between the State s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect a married couple s choice of country for their matrimonial residence or to authorise family reunification on its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Butt v. Norway, cited above, 78).

3 Page 3 of Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. It is the Court s well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 94, 68; Mitchell v. the United Kingdom (dec.), no /98, 24 November 1998; Ajayi and Others v. the United Kingdom (dec.), no /95, 22 June 1999; M. v. the United Kingdom (dec.), no /06, 24 June 2008; Rodrigues da Silva and Hoogkamer v. the Netherlands, cited above, 39; Arvelo Aponte v. the Netherlands, cited above, 57-58; and Butt v. Norway, cited above, 78) Where children are involved, their best interests must be taken into account (see Tuquabo-Tekle and Others v. the Netherlands, no /00, 44, 1 December 2005; mutatis mutandis, Popov v. France, nos /07 and 39474/07, , 19 January 2012; Neulinger and Shuruk v. Switzerland, cited above, 135; and X v. Latvia [GC], no /09, 96, ECHR 2013). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see Neulinger and Shuruk v. Switzerland, cited above, 135, and X v. Latvia, cited above, 96). Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it. EMD, KRASNIQI MOT ØSTERRIKE, dom 25. april The Court s assessment (a) General principles

4 Page 4 of The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, 67, Series A no. 94). The Convention does not guarantee the right of an alien to enter or 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, an interference with a person s private or family life will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of that Article as being in accordance with the law, pursuing one or more of the legitimate aims listed therein, and being necessary in a democratic society in order to achieve the aim or aims concerned. The relevant criteria to be applied, in determining whether an interference is necessary in a democratic society, was set out in, inter alia, Üner v. the Netherlands [GC], no /99, and 57-58, ECHR 2006-XII; Maslov v. Austria [GC], no. 1638/03, 72-73, ECHR 2008; Balogun v. the United Kingdom, no /09, 46, 10 April 2012; and Samsonnikov v. Estonia, no /10, 86, 3 July They are the following: the nature and seriousness of the offence committed by the applicant; the length of the applicant s stay in the country from which he or she is to be expelled; the time elapsed since the offence was committed and the applicant s conduct during that period; the nationalities of the various persons concerned; the applicant s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple s family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; whether there are children of the marriage, and if so, their age; and the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled. the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and the solidity of social, cultural and family ties with the host country and with the country of destination.

5 Page 5 of In its judgment in Jeunesse v. the Netherlands [GC] (no /10, 109, 3 October 2014), which concerned the planned expulsion of a long-term migrant with strong family ties in her host country, the Court reiterated that where children are involved: there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance... Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it. 48. This being so, the Court does not lose sight of the fact that, in the context of the removal of a non-national parent as a consequence of a criminal conviction, the decision first and foremost concerns the offender. Furthermore, as case-law has shown, in such cases the nature and seriousness of the offence committed or the offending history may outweigh the other criteria to be taken into account (see, for example, Üner, cited above, 62-64, and Salem v. Denmark, no /11, 76, 1 December 2016). 49. Lastly, the Court reiterates that national authorities enjoy a certain margin of appreciation when assessing whether an interference with a right protected by Article 8 was necessary in a democratic society and proportionate to the legitimate aim pursued (see Slivenko v. Latvia [GC], no /99, 113, ECHR 2003-X, and Berrehab v. the Netherlands, 21 June 1988, 28, Series A no. 138). The Court has consistently held that its task consists in ascertaining whether the impugned measures struck a fair balance between the relevant interests, namely the individual s rights protected by the Convention on the one hand and the community s interests on the other (see, among many other authorities, Boultif v. Switzerland, no. 4273/00, 47, ECHR 2001-IX). Thus, the State s margin of appreciation goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8 (see Maslov, cited above, 76).