54. The Court notes that it is not in dispute that the relationship between the applicant, his wife and their child falls within the ambit of Article 8 of the Convention. Given the considerable time spent by the applicant in Germany and the fact that his expulsion severed the existing family ties between him and his wife and their daughter, the Court finds that the deportation order interfered with the applicant’s private and family life within the meaning of Article 8 § 1.
55. The Court further notes that the applicant’s expulsion was based on the pertinent provisions of the Aliens Act and pursued a legitimate aim, namely public safety and the prevention of disorder or crime. It therefore remains to be determined whether the measure imposed on the applicant was "necessary in a democratic society" for the achievement of these aims.
58. The Court has reaffirmed that the following criteria should apply in all cases concerning settled migrants when assessing whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued (see Boultif v. Switzerland, no. 54273/00, § 40, ECHR 2001-IX, and Üner, cited above, §§ 57-60):
- 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.
59. In the Üner judgment (cited above, § 58), the Court further made explicit the following two criteria:
- 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.
60. The Court further considers that it has to make its assessment in the light of the situation prevailing when the deportation order became final (see El Boujaïdi v. France, judgment of 26 September 1997, Reports of Judgments and Decisions 1997-VI, p. 1990, § 33; Yildiz v. Austria, no. 37295/97, §§ 34 and 44, 31 October 2002; Yilmaz v. Germany, no. 52853/99, §§ 37 and 45, 17 April 2003; and, implicitly, Üner, cited above, § 64). The question as to when the deportation order became final has to be determined by applying the domestic law. According to the domestic law, the complaint to the Federal Constitutional Court is devised as an extraordinary remedy which does not prevent the contested decision from becoming final. It follows that the deportation order became final on 28 May 2002 when the Lower-Saxony Court of Appeal rejected the first applicant’s request for leave to appeal. The Court’s task is thus to ascertain whether or not the domestic authorities had complied with their obligation to respect the applicant’s private and family life at that particular moment, leaving aside circumstances which only came into being after the authorities took their decision (see Yildiz, cited above, § 44).
61. With regard to the nature and seriousness of the offence committed by the applicant, the Court observes that the applicant was convicted of rape. There can be no doubt that this offence was of an extremely serious nature, as is reflected in the prison sentence of five years and three months imposed on him. Although the applicant had for the most part confessed his crime, which had largely been committed owing to his state of considerable intoxication, this could, according to the criminal court, not lead to a mitigation of sentence, having regard to the fact that the applicant had performed two acts of sexual coercion, that the incident had lasted for an overall duration of forty minutes and that he had constantly used force against his victim.
62. With regard to the length of the applicant’s stay in Germany, the Court notes that the applicant had entered Germany at the age of twentyseven. By the time the deportation order became final in May 2002, he had lived there for almost thirteen years. Despite the considerable time spent by the applicant in Germany, the Court notes that his situation is not comparable to that of a so-called "second-generation immigrant", as he had arrived in Germany as an adult and had spent his childhood and youth and the first part of his university studies in Morocco. There can be no doubt that he had retained sufficient social and cultural ties with his country of origin which would allow him to reintegrate into Moroccan society.
63. As to the applicant’s conduct since the offences were committed, the Court notes that the applicant remained in prison until the deportation order became final.
64. With regard to the applicant’s family situation, the Court notes that the applicant and his wife had been married since March 1997. The spouses’ relationship had been considerably strained by his criminal conviction. By the time the deportation order became final, it was not clear whether the applicant’s wife would continue the relationship or seek a separation.
65. With regard to the applicant’s relationship with his daughter, the Court notes that the daughter was born within a marital union and that the family lived together until the applicant’s arrest in January 1999, when the child was one and a half years’ old. While contacts between the father and his child were rare in the earlier part of his prison term, the applicant received and paid regular visits to his daughter during the second part of his prison term.
66. With regard to the possibility of maintaining the parental relationship with his daughter following his deportation, the Court notes that the child was living with the applicant’s wife. As it was uncertain at the relevant time if the applicant’s wife would continue the relationship, there was no realistic prospect that she would follow him to Morocco, thus allowing them to maintain the father-child relationship. The Court further considers that the domestic authorities have not established whether the applicant’s wife or their daughter speak the Arabic language. Even if the applicant’s wife had been ready to join her husband in Morocco, she would inevitably have encountered very serious difficulties, bearing in mind that she had been the main provider of the family (see, mutatis mutandis, Amrollahi v. Denmark, no. 56811/00, § 41, 11 July 2002). It follows that the applicant’s expulsion to Morocco necessarily entailed his separation from his daughter.
67. The Court appreciates that the applicant’s expulsion had far-reaching consequences, in particular for his relationship with his young daughter. However, having regard to the nature and seriousness of the offence committed by the applicant, and bearing in mind that the psychological experts, at the relevant time, could not entirely rule out the danger of recidivism, the Court cannot find that the respondent State attributed too much weight to its own interests when it decided to impose that measure.
Accordingly, there has been no violation of Article 8 of the Convention.