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Supreme Court of Denmark

Expulsion and six-year entry ban for illegal residence, illegal work and use of another person's identity 

Case no. 364/2010
Judgment 7 April 2011
 

The Public Prosecutor
vs
T

T's expulsion and six-year entry ban for illegal residence, illegal work and use of another person's identity were not in contravention of s. 26(1) of the Danish Aliens (Consolidation) Act, Article 8 of the European Human Rights Convention or the Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Directive 2004/38/EC), regardless of whether the marriage which T had contracted in Ghana with a resident Polish woman without T's presence was valid.

T, a Ghanaian citizen, had married a resident Polish woman in a ceremony in Ghana at which T was not present. T had been found guilty of illegal residence, illegal work and use of another person's identity by the District Court and the High Court. The High Court had reduced the District Court's unconditional sentence of imprisonment for 60 days to 40 days, and both Courts had expelled T from Denmark and banned him from entry for six years.

Before the Supreme Court, T claimed reversal of the expulsion order and otherwise affirmation of the judgment, while the Public Prosecutor moved for an increase of the sentence and otherwise affirmation of the judgment.

The Supreme Court did not find sufficient grounds for increasing the sentence passed by the High Court. In addition, the Supreme Court agreed that it was not possible to expel T under s. 24, no. 2, of the Danish Aliens (Consolidation) Act. The Supreme Court stated that neither s. 26(1) of the Aliens Act, Article 8 of the European Human Rights Convention or the provisions in Directive 2004/38/EF of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States precluded T from being expelled and banned from entry for six years, regardless of whether the marriage between T and the Polish woman was held to be valid. The Supreme Court gave importance to the facts that the nature of T's crime was such that T should be expelled, and the personal conduct which T had exhibited with his crime represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, cf. Article 27(2), second sentence, of the Directive. In addition, the Supreme Court held that expulsion and the six-year entry ban could not be regarded as disproportional, cf. in this connection Article 27(2), first sentence, and Article 28 of the Directive. T's ties to the Danish labour market had, thus, been established on an illegal basis and were based on documents concerning another person. Also, T and the Polish woman had not lived together when he was arrested, and the Polish woman had to have been aware, at least from the time when the marriage was contracted in Ghana, that T was residing and working illegally in Denmark under the identity of another person.  

Against this background, the Supreme Court affirmed the High Court’s judgment.

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