Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 21702/93

Salah Ahmut and Souffiane Ahmut

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 17 May 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-37). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 16-33) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 34-37) . . . . . . . . . . . . . . . . . . . . . 5

III. OPINION OF THE COMMISSION

(paras. 38-55). . . . . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6

C. As regards Article 8 of the Convention

(paras. 40-54) . . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION

(para. 55) . . . . . . . . . . . . . . . . . . . . . . . 8

DISSENTING OPINION OF MM. G. JÖRUNDSSON, S. TRECHSEL,

J.-C. SOYER AND L. LOUCAIDES. . . . . . . . . . . . . . . . . . . . 9

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .10

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The first applicant holds both Moroccan and Dutch nationality.

He was born in 1945 and resides in Rotterdam. The second applicant is

a Moroccan citizen, born on 27 November 1980 and resident in Rotterdam.

The applicants are father and son. They were represented before the

Commission by Mr. J.H.M. Nijhuis, a lawyer practising in Rotterdam.

3. The application is directed against the Netherlands. The

respondent Government were represented by their Agent, Mr. H.A.M. von

Hebel of the Netherlands Ministry of Foreign Affairs.

4. The case concerns the refusal of the Netherlands authorities to

grant the second applicant a residence permit. The applicants invoke

Article 8 of the Convention.

B. The proceedings

5. The application was introduced on 23 February 1993 and registered

on 22 April 1993.

6. On 1 December 1993, the Commission (Second Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 21 February 1994.

The applicants replied on 14 April 1994.

8. On 12 October 1994, the Commission declared the application

admissible in respect of the alleged violation of the applicants' right

to respect for their family life. It declared the remainder of the

application inadmissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 7 November 1994 and they were invited to submit such

further information or observations on the merits as they wished.

10. After declaring the case partly admissible, the Commission,

acting in accordance with Article 28 para. 1 (b) of the Convention,

also placed itself at the disposal of the parties with a view to

securing a friendly settlement. In the light of the parties' reaction,

the Commission now finds that there is no basis on which such a

settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

12. The text of this Report was adopted on 17 May 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is attached hereto as an Appendix.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. Out of the first applicant's first marriage, five children were

born in 1969, 1970, 1971, 1972 and 1980. The second applicant,

Souffiane Ahmut, is the youngest of the five children.

17. The first applicant's first marriage was dissolved in 1984. The

children born out of the marriage remained with their mother in

Morocco.

18. In September 1986, the first applicant went to the Netherlands

where, on 3 November 1986, he married a Dutch national, who already had

three children. On the basis of this marriage he obtained a Dutch

residence permit. On 22 February 1990, he obtained Dutch nationality.

19. On 26 March 1987, the first applicant's first wife died. The

children were subsequently taken into the household of the first

applicant's mother in Tanger. The first applicant supported his

children financially and they saw each other during visits. According

to the applicants, the first applicant's mother can no longer continue

to care for her grandchildren in view of her poor state of health.

20. In February 1990, the first applicant separated from his second

wife. Their divorce was pronounced on 21 December 1990.

21. On 26 March 1990, the second applicant and his sister Souad

entered the Netherlands without having the required authorisation for

entry (machtiging tot voorlopig verblijf). On 3 May 1990, the first

applicant requested a residence permit (vergunning tot verblijf) on

behalf of his son on the basis of family reunification.

22. The request was rejected by the Deputy Minister of Justice on

26 June 1990. He noted that the second applicant had entered the

Netherlands without the required authorisation for entry. As to the

request for a residence permit on the basis of family reunification,

the Deputy Minister of Justice considered that the second applicant did

not fulfil the conditions of Section 11 para. 5 of the Aliens Act

(Vreemdelingenwet) and the applicable policy rules laid down in the

Circular on Aliens (Vreemdelingencirculaire) because he did not in fact

belong to his father's family in the Netherlands, as, following his

parents' divorce, he had remained with his mother and had subsequently

become a member of his paternal grandmother's family in Morocco. It had

furthermore not been shown in which way the first applicant had

contributed either financially or otherwise to the upbringing of the

second applicant and it had not been substantiated that the paternal

grandmother could no longer care for him.

23. As regards Article 8 of the Convention, the Deputy Minister of

Justice did not find that the link between the applicants could be

regarded as constituting family life within the meaning of this

provision. He considered that, if there were family life, and if the

personal interests of the applicants were weighed against the general

interest, an interference with the rights under Article 8 para. 1 of

the Convention was justified under para. 2 of this provision as being

necessary in a democratic society in the interests of the economic

well-being of the country. The Deputy Minister of Justice finally held

that there were no other compelling humanitarian reasons on the basis

of which a residence permit should be granted to the second applicant.

24. The decision of 26 June 1990 was served on the applicants on

22 October 1990.

25. On 26 October 1990, two other children born out of the first

applicant's first marriage obtained permission to reside in the

Netherlands for initially one year to study at the Technical University

of Delft.

26. On 13 November 1990, the first applicant requested the Deputy

Minister of Justice to review (herziening) the decision of

26 June 1990. On 4 January 1991, the request was granted suspensive

effect in respect of the proposed expulsion of the second applicant.

27. Since the Deputy Minister of Justice had failed to take a

decision on the request for review within the prescribed period of

three months, the first applicant, on behalf of the second applicant,

filed an appeal on 6 March 1991 to the Judicial Division of the Council

of State (Afdeling Rechtspraak van de Raad van State) against the

Deputy Minister's presumed rejection (fictieve weigering) of the

request for a review.

28. On 11 March 1991, the first applicant married a Moroccan

national, who, on the basis of that marriage, obtained a Dutch

residence permit.

29. On 20 March 1991, a hearing took place before the Advisory

Commission for Aliens Affairs (Adviescommissie voor Vreemdelingenzaken)

on the request of 13 November 1990 for a review. The Commission heard

the first applicant in the presence of his lawyer; the second applicant

was present, but no questions were put to him. At the hearing the first

applicant stated, inter alia, that he had no proof of his divorce from

his first wife since one has to pay for such a document, that his

second wife had always refused to take the children born out of his

first marriage into their household, that he never applied for any

children's allowance (kinderbijslag) in the Netherlands but that he had

sent or taken money to Morocco for the maintenance of his children on

a regular basis, that he has two brothers living in Morocco, and that

his eldest son from his first marriage, Hamid, lives on his own in

Morocco and works as a merchant.

30. The applicant submitted a copy of his first wife's death

certificate to the Advisory Commission for Aliens Affairs. He also

submitted a medical certificate dated 7 November 1990, which stated

that the applicant's mother was 80 years old, that she suffered from

kidney problems and dyspnea, and that she was an out-patient at a

hospital in Tanger.

31. After having considered the statements and the documents

submitted, the Advisory Commission, unanimously, decided on

20 March 1991 to advise the Deputy Minister of Justice to reject the

request for a review. However, because in the meantime the applicant

had appealed to the Judicial Division of the Council of State, the

Deputy Minister did not determine the request for a review.

32. Following a hearing on 10 August 1992, the Judicial Division of

the Council of State rejected the appeal on 24 August 1992. It held

that the second applicant did not meet the requirements for a residence

permit for family reunification as laid down in Chapter B19 of the

Circular on Aliens, as he could not be considered as a member of his

father's family in the Netherlands. It further held that it had not

appeared or been argued that his older brother Hamid or his two uncles

in Morocco could not care for him. Moreover, the second applicant could

return to Morocco together with his sister Souad, who could equally

provide him with care in Morocco. The Judicial Division of the Council

of State further stated that it had not appeared or been argued that

it was impossible for his father to continue to provide for him

financially.

33. Under Article 8 of the Convention the Judicial Division found no

interference with the applicants' rights since the case did not concern

the revocation of a residence permit which had allowed them to enjoy

family life in the Netherlands. The Judicial Division considered that

the Dutch authorities, after weighing the personal interests of the

applicants against the general interest of the Netherlands, did not

have a positive obligation under Article 8 of the Convention to grant

the second applicant a residence permit.

B. Relevant domestic law

34. The rules on entry and residence in the Netherlands and the

grounds on which aliens may be expelled are laid down in the Aliens

Act, the regulations implementing this Act, and the Circular on Aliens.

The Circular on Aliens is a compilation of binding policy rules and

directives drawn up and published by the Dutch Ministry of Justice.

35. Section 11 para. 5 of the Aliens Act states, inter alia, that a

residence permit can be refused in the public interest. On the basis

of this provision, the Dutch authorities pursue a restrictive

immigration policy for the purposes of regulating the labour market and

restricting immigration in a densely populated country. As a rule, a

residence permit is only granted if an international obligation must

be respected, if the alien's presence in the Netherlands serves an

essential Dutch interest, or if there are compelling humanitarian

reasons.

36. Family reunification, which is dealt with in Chapter B19 of the

Circular on Aliens, is one of the grounds on which a residence permit

can be granted. Provided that a number of conditions concerning, inter

alia, sufficient means of existence, health, and public order, have

been fulfilled, a residence permit on the grounds of family

reunification can be granted to, inter alia, spouses of Dutch nationals

or aliens who lawfully reside in the Netherlands, and to their minor

children regardless of whether they were born in or out of wedlock,

provided that these children in fact belong to their family.

37. If an alien is not entitled to a residence permit on the basis

of the law and the policy, the authorities will always consider whether

there are nonetheless compelling humanitarian reasons on the basis of

which an alien should be granted residence in the Netherlands.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

38. The Commission has declared admissible the applicants' complaint

that the Netherlands authorities' refusal to grant the second applicant

a residence permit in order to take up residence with the first

applicant constituted an unjustified interference with their family

life within the meaning of Article 8 (Art. 8) of the Convention.

B. Point at issue

39. The point at issue is accordingly whether there has been a

violation of Article 8 (Art. 8) of the Convention as regards both

applicants.

C. As regards Article 8 (Art. 8) of the Convention

40. Article 8 of the Convention, insofar as relevant, reads as

follows:

"1. Everyone has the right to respect for his ... family

life ....

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of ... the economic well-being of

the country ...."

41. The applicants submit that there is family life within the

meaning of Article 8 para. 1 (Art. 8-1) between them and that the

refusal to grant a residence permit to the second applicant constitutes

an interference with their family life. In this respect they argue that

the second applicant cannot return to his grandmother, who is no longer

able to care for him, that other family members are not in the position

to care for him and that, apart from his sister Souad, none of his

brothers was living in the household of the grandmother when he left

Morocco in March 1990. According to the applicants a continuation of

the family life as it had existed prior to March 1990 was no longer

possible. The applicants submit that the interference is not justified

under Article 8 para. 2 (Art. 8-2) of the Convention.

42. The Government submit in the first place that the bond between

the applicants is not close enough to be described as family life

within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.

Subsidiarily the Government submit that even if there were family life

within the meaning of Article 8 (Art. 8) between the applicants, the

refusal to grant a residence permit to the second applicant constitutes

no interference with their family life, because the family life as it

had existed prior to March 1990, i.e. occasional contacts and financial

support, can be continued when the second applicant resides in Morocco.

Finally the Government submit that, should the Commission be of the

opinion that the refusal to grant a residence permit to the second

applicant constitutes a violation of Article 8 para. 1 (Art. 8-1), the

interference is justified under Article 8 para. 2 (Art. 8-2) of the

Convention, because the interests of the applicants do not outweigh the

public interest. They submit that the second applicant has very close

relatives in Morocco (in particular his eldest brother), that he can

live with his sister and that the first applicant can continue to make

financial contributions.

43. The Commission recalls that the Convention does not guarantee a

right to enter or reside in a particular country. However, in view of

the right to respect for family life ensured by Article 8 (Art. 8) of

the Convention, the exclusion of a person from a country in which his

close relatives reside may raise an issue under this provision of the

Convention (cf. No. 11274/84, Dec. 1.7.85, D.R. 43, p. 216).

44. The Commission finds that the links between the applicants may

be regarded as constituting family life within the meaning of Article 8

para. 1 (Art. 8-1) of the Convention.

45. Consequently, the refusal of a residence permit to the second

applicant must be considered as an interference with their right to

respect for their family life (cf. No. 13654/88, Dec. 8.9.88, D.R. 57,

p. 287).

46. The question therefore arises whether this interference was

justified under Article 8 para. 2 (Art. 8-2) of the Convention, i.e.,

whether it was "in accordance with the law" and could reasonably be

considered as necessary in a democratic society for one or more of the

legitimate aims referred to in this provision.

47. The Commission notes that the decision to refuse the second

applicant a residence permit was based on and taken in accordance with

Section 11 para. 5 of the Aliens Act and Chapter B19 of the Circular

on Aliens, which lays down special conditions for the granting of

residence permits on the grounds of family reunification.

48. The Commission further notes that the Dutch immigration policy

establishes special conditions for the purpose of regulating the labour

market, and generally of restricting immigration in a densely populated

country. Thus the legitimate aim pursued is the preservation of the

country's economic well-being within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention (cf. Eur. Court H.R., Berrehab judgment

of 21 June 1988, Series A no. 138, p. 15, para. 26).

49. Regarding the necessity of the interference in a democratic

society, the Commission recalls that the Contracting States have a

margin of appreciation in the field of immigration policy. However,

"necessity" implies that the interference must correspond to a pressing

social need and, in particular, that it must be proportionate to the

legitimate aim pursued (cf. Berrehab judgment, loc. cit. p. 16,

para. 28).

50. The Commission observes that the second applicant is a minor. At

present he is fourteen years old.

51. The Commission further observes that the second applicant's

mother died in 1987 and that his father, the first applicant, is his

closest relative. The Dutch authorities' refusal to grant the second

applicant a residence permit in order for him to take up residence with

his father will most likely lead to his expulsion from the Netherlands.

If the second applicant is expelled from the Netherlands there will be

a risk that the ties between the applicants will be weakened or broken.

52. Furthermore, the parties disagree about whether the second

applicant will have a proper place to live and whether he will receive

proper care in Morocco. It is true that the second applicant has family

members living in Morocco, but it is not clear to what extent they are

able or willing to provide the second applicant with the required care.

As regards the second applicant's grandmother, the Commission,

recalling that she is 85 years old according to the medical certificate

(see para. 30 above), finds that it is not unreasonable to assume that

she will not be able to care for the second applicant in the way she

did prior to his departure to the Netherlands in March 1990.

53. The Commission further observes that the second applicant entered

the Netherlands on 26 March 1990 and that apparently he has been living

there since that date. This is, at present, a period of more than five

years. It is true that the Dutch authorities never gave their approval

to the second applicant's residence in the Netherlands, but they did

not take action to expel him.

54. In these circumstances the Commission finds that the balance that

was struck between the interests of the parties involved was not fair.

The interference was therefore not necessary in a democratic society

as being disproportionate to the legitimate aim pursued. As a result,

the interference was not justified under Article 8 para. 2 (Art. 8-2)

of the Convention.

CONCLUSION

55. The Commission concludes, by 9 votes to 4, that in the present

case there has been a violation of Article 8 (Art. 8) of the Convention.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

(Or. English)

DISSENTING OPINION OF

MM. G. JÖRUNDSSON, S. TRECHSEL, J.-C. SOYER AND L. LOUCAIDES

In the present case, contrary to the majority, we come to the

conclusion that there has been no violation of Article 8 for the

following reasons.

We note that the second applicant entered the Netherlands without

the required authorisation. Prior to his arrival in the Netherlands in

March 1990, he had not lived with his father since 1984, whilst the

latter had remarried and started a new family in the Netherlands twice.

We further note that the second applicant has substantial links with

Morocco, where he was born, where he has lived until March 1990, and

where in any case his paternal grandmother, two uncles and an adult

brother live. It has not been shown that these family members are

unable to provide the second applicant, who at present is fourteen

years old, with the required care. Furthermore, there is nothing in the

file indicating that his father could not continue to support his son

financially. The ties between the applicants can be maintained, given

that before March 1990 the first applicant went to Morocco regularly

to visit, inter alia, the second applicant.

In these circumstances we consider that respect for the

applicants' family life does not outweigh valid considerations relating

to Dutch immigration policy and that a right balance has been struck

between the interests involved. We therefore conclude that there has

been no violation of Article 8.

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AHMUT v. THE NETHERLANDS

AHMUT v. THE NETHERLANDS

LEXI