Facts

The complainant, a Turkish national, married a Yugoslav woman resident in the canton of Basel-Stadt in 1987 and was granted a settlement permit in 1993. After a first application for family reunification with his two sons from a previous marriage was unsuccessful, he submitted a new application for family reunification in September 1996, which included the daughters. This application was rejected with final effect by the Appellate Court of the canton of Basel-Stadt on 4 December 1997.

In February 2000, the sons and daughters entered Switzerland with tourist visas and remained in the country after the visas expired. After the presence of the children was discovered by the authorities in January 2001, the father submitted a new application for family reunification on 22 February 2001, requesting that the children be allowed to stay provisionally for the duration of the application procedure.

On 30 April 2001, an incident occurred in the family, and the daughter filed a criminal complaint against her father and brother. On 21 September 2001, the daughter again filed a criminal complaint against her brother. The population registry office was informed of this new complaint on 25 September 2001. On 11 October 2001, the son [A.] was taken from his apartment by the cantonal police at 06.00 a.m. and handed over to the population registry office, which, after questioning him, issued an informal expulsion order, took him into custody pending deportation, and deported him to Turkey the next day.

Considerations

The Federal Court had to decide whether the informal expulsion of the complainant without granting him the opportunity to appeal was lawful. The complainant argued that the informal expulsion violated the prohibition of arbitrariness (Art. 9 Cst.) and the guarantee of Art. 13 ECHR (right to an effective remedy).

The Federal Court found that the informal expulsion of foreigners without a residence permit was permissible under Art. 12 para. 1 ANAG and Art. 17 para. 1 sentence 1 ANAV if the foreigner was staying in the country illegally and there were no special circumstances that would prevent an informal expulsion. The…