AS TO THE ADMISSIBILITY OF

                      Application No. 29192/95

                      by Mehmet ÇILIZ

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

           Mrs   G.H. THUNE, President

           MM    J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 A. ARABADJIEV

           Ms    M.-T. SCHOEPFER, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 6 November 1995

by Mehmet ÇILIZ against the Netherlands and registered on 9 November

1995 under file No. 29192/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     28 August 1996 and the observations in reply submitted by the

     applicant on 15 November 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a Turkish citizen, born in 1965, and residing

in Meram Konya, Turkey. Before the Commission he is represented by Mrs.

G.E.M. Later, a lawyer practising in The Hague, the Netherlands.

     The facts of the case, as submitted by the parties, may be

summarised as follows.

A.   The particular circumstances of the case

     The applicant came to the Netherlands on 31 March 1988 where he

married a Turkish woman on 29 December 1988. Upon his request he was

granted a residence permit by the head of the Utrecht police on 14

February 1990 in order to live with his spouse and to work in the

Netherlands. This residence permit was valid for one year and, on 5

April 1990, the applicant was given a document showing that as a result

of his marriage he was allowed to reside in the Netherlands

indefinitely.

     On 27 August 1990, a son, Kürsad, was born to the applicant and

his wife.

     The applicant and his wife separated in November 1991 and divorce

proceedings were initiated. Consequently, the applicant lost the right

to reside in the Netherlands indefinitely since this had been dependent

on his marriage. On 24 January 1992, the applicant applied for and was

granted an independent residence permit in order to work in the

Netherlands. This permit was valid for one year.

     The applicant requested the Regional Court

(Arrondissementsrechtbank) of Utrecht to establish an arrangement

concerning parental access (omgangsregeling, hereinafter "access

arrangement"). The Regional Court requested the Child Care and

Protection Board (Raad voor de Kinderbescherming) to investigate the

feasibility of such an arrangement.

     In its report of 18 January 1993, the Child Care and Protection

Board stated that after an initial refusal to co-operate with an access

arrangement, the mother had agreed for the applicant to meet his son

several times on a provisional basis at the maternal grandparents'

house but that the applicant had failed to contact the Board. The Board

concluded that the applicant's situation had not become sufficiently

clear and for this reason the Board found that an access arrangement

would not be appropriate.

     The applicant requested a prolongation of his residence permit

in order to work in the Netherlands from the head of the Utrecht police

on 11 January 1993. At this time the applicant was in receipt of

unemployment benefits and for this reason his request was rejected on

3 February 1993. As regards Article 8 of the Convention, the head of

the Utrecht police considered, inter alia, that since it appeared that

the applicant had no regular contacts with his son there was no family

life between them within the meaning of this provision. In this respect

it was held that the applicant's claim that it was not his fault that

no regular contacts took place could not be taken into account, since

regard could only be had to the factual situation. Furthermore, even

assuming there was family life between the applicant and his son, an

interference with the right to respect for this life would, according

to the head of the Utrecht police, be justified under para. 2 of

Article 8.

     The applicant requested the State Secretary for Justice

(Staatssecretaris voor Justitie) on 22 April 1993 to review (herzien)

the decision of the head of the Utrecht police. He submitted that he

was in the process of obtaining a permanent employment contract. He

conceded that at present the contacts with his son had not yet been

regularised but that the Regional Court of Utrecht was expected to

examine and to grant a request for an arrangement concerning parental

access shortly.

     The applicant's marriage was officially dissolved on 17 March

1994.     On 15 July 1994, the applicant was heard by the Advisory

Commission for Aliens Affairs (Adviescommissie voor

Vreemdelingenzaken). The applicant stated that he visited his son

between one and three times a week.

     The Advisory Commission proposed to the State Secretary for

Justice that the applicant's request for revision be rejected. Even

though it considered that there was family life between the applicant

and his son and that the refusal to grant the applicant continued

residence in the Netherlands would constitute an interference with the

applicant's right to respect for his family life, the Advisory

Commission held that this interference was justified for the protection

of the economic well-being of the country. In this respect the Advisory

Commission considered that the applicant was in receipt of unemployment

benefits. It might be true that these benefits would be withdrawn in

view of the applicant's contract as a stand-by employee in the clothing

industry, but the Advisory Commission did not regard these activities

as serving an essential national interest since it had appeared that

on the Dutch labour market other people, having priority over the

applicant, were available for this kind of work.

     The Advisory Commission further took into account that the

applicant had only lived with his son for one and a half year, that he

saw his son irregularly and briefly, and that he contributed

irregularly to the costs of his son's upbringing and education.

     Having regard to the opinion of the Advisory Commission, the

State Secretary for Justice rejected the applicant's request for

revision on 6 October 1994. The applicant was informed at the same time

that an appeal (beroep) against this decision would not suspend his

expulsion.

     The applicant filed an appeal against the decision of 6 October

1994 with the Aliens' Chamber (Vreemdelingenkamer) of the Regional

Court of The Hague sitting at Amsterdam (nevenzittingsplaats Amsterdam)

on 31 October 1994. He submitted, inter alia, that contrary to what the

Advisory Commission had held, the relationship he had with his son was

intense. On the same date he also requested the Chairman of the Aliens'

Chamber to grant an interim measure (voorlopige voorziening) allowing

him to await the outcome of the appeal proceedings in the Netherlands.

     Meanwhile, following a hearing on 25 November 1994, the Utrecht

Regional Court on 24 January 1995 appointed the applicant's former wife

as guardian and the applicant as auxiliary guardian of their son. It

further ordered that as a contribution to the costs of the upbringing

and education of his son, the applicant should pay to the mother any

child benefits he might receive under the statutory regulations. In

view of the circumstances and the relationship between the parties the

Regional Court found it inappropriate, however, to lay down in a formal

access arrangement the varying contacts which the applicant was having

with his son at that time. The Regional Court assumed in this respect

that the contacts which the applicant had had and was still having with

his son would be continued in the future; it added that, as part of the

upbringing of the child, it was incumbent on the mother to ensure that

these contacts between father and child took place.

     The applicant filed an appeal with the Court of Appeal

(Gerechtshof) of Amsterdam against the decision of the Utrecht Regional

Court not to establish an access arrangement. A hearing took place on

19 April 1995, during which the applicant's former wife stated that she

was not willing to co-operate in an access arrangement, since she felt

that the applicant only wished to have such an arrangement established

in order to obtain a right to reside in the Netherlands. Furthermore,

she did not believe that the applicant was capable of maintaining

regular contacts with his son and submitted that irregular contacts

would not be conducive to the boy's well-being. The applicant submitted

that he had twice contacted his former wife but that she had not

allowed him to see the boy.

     On 10 May 1995, a hearing took place before the Regional Court

of The Hague sitting at Amsterdam on the appeal filed by the applicant

against the rejection of his request for revision of the decision not

to prolong his residence permit. The Regional Court rejected the appeal

by decision of 24 May 1995. It held that the refusal to grant the

applicant continued residence in the Netherlands constituted a

justified interference with his family life. The Regional Court

considered in this respect, inter alia, that the Utrecht Regional Court

had rejected the applicant's request to establish an access

arrangement. It found, furthermore, that the contacts between the

applicant and his son were irregular and short and that the applicant

did not contribute regularly to the costs of his son's upbringing and

education. The Regional Court further held that the economic well-being

of the country should be taken into account as well. It noted that the

applicant had submitted an employment contract from which it appeared

that his probationary period had not yet been concluded and that, in

any event, there was a sufficient amount of work force with priority

over the applicant available on the Dutch labour market for the kind

of work the applicant was employed to do. It appears from the Regional

Court's considerations that it would have reached the same decision if

an access arrangement had existed based on a frequency of the

applicant's contacts with his son of one to three times a week.

     When this decision was sent to the applicant, i.e. on 26 June

1995, the applicant's probationary period had come to an end and he was

in the possession of a contract of employment for an indefinite period.

     By separate decision of 24 May 1995, the President of the

Regional Court rejected the request for an interim measure in view of

the fact that the appeal proceedings had been concluded.

     As regards the applicant's request for the establishment of an

access arrangement, the Court of Appeal decided on 1 June 1995 to

adjourn these proceedings. The Court found that at the present time

there was insufficient reason to deny the applicant the right of access

to his son.  As it was not clear to what extent the applicant was

genuinely interested in his son the Court of Appeal requested the Child

Care and Protection Board to organise a number of supervised trial

meetings between the applicant and his son in order to have the

applicant's motives clarified.

     On 19 September 1995, the applicant was informed that the Court

of Appeal had further adjourned the proceedings until 3 December 1995

in view of the heavy workload of the Child Care and Protection Board.

By letter of 16 October 1995, the applicant asked the Court of Appeal

whether there was no other organisation capable of organising the trial

meetings as he wished to see his son and a further delay would have

negative effects on both the applicant and the child.

     On 31 October 1995, the applicant was placed in detention with

a view to his expulsion (vreemdelingenbewaring).

     On 2 November 1995, the applicant again requested a residence

permit in order to work in the Netherlands, to be able to be with his

child and for reasons of a compelling humanitarian nature. On this

occasion he told the head of police that as of February 1995 he had

stopped contributing financially to his son's upbringing since his

former wife no longer allowed him to see his son.

     The first trial meeting between the applicant and his son,

organised by the Child Care and Protection Board, took place on

3 November 1995 at the offices of this organisation. Since the

applicant was still in detention, he was accompanied by two police

officers who observed the meeting between the applicant and his son

from a different room.

     On 7 November 1995, the applicant's representative contacted the

officer of the Child Care and Protection Board who had also been

present at the meeting between the applicant and his son. In the

opinion of this officer, the meeting had gone well. Although eye

contact between father and son had not been established immediately,

this, according to the officer, was due to the fact that father and son

had had to re-accustom themselves to being together. Once this had been

achieved, eye contact did take place. The officer submitted as her

opinion that another experimental contact should be organised by the

Board, perhaps in the presence of a psychologist, following which the

possibility of a supervised access arrangement should be considered.

     The applicant's request of 2 November 1995 for a residence permit

was rejected by the State Secretary for Justice on 6 November 1995. The

State Secretary held that no relevant new facts had been adduced by the

applicant. Based on the information submitted by the police officers

who had observed the meeting between the applicant and his son on

3 November 1995, the State Secretary considered furthermore that it had

not appeared that the relationship between the applicant and his son

at the present time was meaningful, mutual or anything more than

shallow and neither was it realistically foreseeable that a closer

relationship would develop.

     The applicant filed an objection (bezwaar) against the refusal

of a residence permit with the State Secretary for Justice on

6 November 1995. He submitted, inter alia, that proceedings concerning

access to his son were still pending before the Amsterdam Court of

Appeal and that the trial meeting which had been ordered by the Court

of Appeal on 1 June 1995 had only taken place as late as 3 November

1995. Given the fact that at that time the applicant had been in

detention, it was unreasonable to expect that this meeting between the

applicant and his son would give a true impression of the nature of the

relationship between them. The applicant also requested the President

of the Regional Court of The Hague sitting at Amsterdam to grant an

interim measure to the effect that he would not be expelled as long as

no decision had been taken on his objection against the refusal to

grant him a residence permit.

     On 8 November 1995, the applicant was expelled to Turkey.

     On 20 February 1996, the applicant changed his request for an

interim measure by now demanding that the President of the Regional

Court order the Dutch authorities to let the applicant return to the

Netherlands and that he prohibit them from expelling the applicant

again as long as no decision had been taken on his objection and the

proceedings before the Court of Appeal of Amsterdam concerning the

access arrangement had not been terminated.

     The President of the Regional Court rejected the objection which

the applicant had filed against the refusal of a residence permit and,

in light of this decision, also rejected the request for an interim

measure on 7 March 1996.

     In the proceedings concerning the access arrangement, a hearing

before the Court of Appeal of Amsterdam was set for 2 December 1996.

On 18 October 1996 the applicant applied to the Dutch embassy in Ankara

for an entry visa in order to be present at this hearing. The

applicant's representative was informed by an officer of the Ministry

for Foreign Affairs that the applicant would not be provided with an

entry visa as there was a risk that he would settle in the Netherlands.

The request for an entry visa was officially rejected on

3 February 1997. The applicant has filed an objection against this

refusal which is currently still pending.

     The proceedings before the Court of Appeal of Amsterdam have been

adjourned.

B.   Relevant domestic law and practice

     In general, an application for a residence permit in the

Netherlands is granted only if the individual's presence serves an

essential national interest or if there are compelling humanitarian

grounds (klemmende redenen van humanitaire aard). At the relevant time,

foreigners married to either a Dutch national, a recognised refugee or

a holder of a permanent residence permit fell into the latter category.

After one year of legal residence in the Netherlands they acquired ex

jure an indefinite right to remain pursuant to Section 10 para. 2 of

the Aliens Act (Vreemdelingenwet).

     This right expired ex jure when the spouses no longer co-habited

(Section 47 para. 1 sub (a) of the Order on Aliens

[Vreemdelingenbesluit]). If, at that time, the foreigner had been

married for more than three years and had legally resided with his

spouse in the Netherlands for at least one year during the time

directly preceding the dissolution or breakdown of the marriage, he

would be eligible for an independent residence permit.

     An independent residence permit in order to work in the

Netherlands, which had been granted following the dissolution or

breakdown of a marriage, could be prolonged if at the time of the

request for such a permit the foreigner was certain of employment for

at least another year. However, prolongation was not refused if, inter

alia, there were compelling reasons of a humanitarian nature to accept

the individual's presence in the Netherlands.

     An "essential national interest" as mentioned above is considered

to exist where a foreigner is employed in a sector where there is not

a sufficient number of capable people available on the labour market

to fill all vacancies. To establish whether this is the case, regard

is only had to the number of registered unemployed people enjoying

priority (prioriteit genietend aanbod). For example, on the Dutch

labour market E.U. citizens have priority over most other foreigners.

COMPLAINTS

     The applicant complains of a violation of Article 8 of the

Convention, arguing that the interference with his right to respect for

his private and his family life cannot be justified under para. 2 of

this provision.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 6 November 1995 and registered

on 9 November 1995.

     On 27 June 1996 the Commission decided to communicate the

applicant's complaint concerning the interference with his private and

family life to the respondent Government and to declare the remainder

of the application inadmissible.

     The Government's written observations were submitted on 28 August

1996.  The applicant replied on 15 November 1996, after an extension

of the time-limit fixed for that purpose.

THE LAW

     The applicant complains under Article 8 (Art. 8) of the

Convention that the Dutch authorities did not prolong his residence

permit. As a result, he is unable to have regular contact with his son

and, following his expulsion, cannot participate in the proceedings

concerning the question whether a formal access arrangement should be

established.

     Article 8 (Art. 8) of the Convention, insofar as relevant,

provides as follows:

     "1.   Everyone has the right to respect for his private and

     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 national security, public safety or the economic well-being

     of the country, for the prevention of disorder or crime, for the

     protection of health or morals, or for the protection of the

     rights and freedoms of others."

     The Government concede that the refusal to allow the applicant

continued residence in the Netherlands constituted an interference with

his right to respect for his private and family life. However, they

submit that this interference was in accordance with the law and had

a justified objective, namely the economic well-being of the country.

As to whether the interference was proportionate to the aim pursued the

Government argue that, on balance, the importance of continued

residence in the Netherlands to the applicant was not greater than the

State's interest in his expulsion.

     In this respect the Government have taken into account, inter

alia, that the applicant lived with his son for less than eighteen

months and that the contacts between them since then have been minimal.

The Government submit that it is perfectly possible for the applicant

to maintain this contact from Turkey. Further, the limited and

irregular financial contributions made by the applicant until February

1995 do not, according to the Government, provide evidence of a close

involvement with the care and upbringing of his son. Moreover, the

applicant was in receipt of benefits paid out of public funds from

1 February 1990 to 15 April 1995. The work which he carried out on an

irregular basis from 27 June 1994 and the job which he held from

15 April 1995 were of a type for which there were sufficient applicants

deserving higher priority on the Dutch labour market.

     The applicant submits that following his separation from his

son's mother he initially went through a difficult period. However,

from February 1993 onwards he visited his son between one and three

times a week. He also contributed financially to the care and

upbringing of the child. After the Regional Court's decision of

24 January 1995 not to establish a formal access arrangement, his

former wife refused to allow the applicant contact with his son. For

this reason he stopped his financial contributions, hoping in this way

to exert pressure on the mother to grant him access.

     Even though the applicant had been in receipt of social security

benefits, he was gainfully employed at the time of the Regional Court's

decision not to extend his residence permit. As he was thus

contributing to Dutch society by paying taxes and social security

contributions, the fact that there were other people available on the

Dutch labour market to do the same work should not, in the applicant's

opinion, have had the decisive importance which was attributed to it

by the Dutch authorities.

     Having regard to the parties' submissions, the Commission

considers that the case raises complex issues of law and fact under the

Convention, which require an examination of the merits. The application

cannot, therefore, be declared inadmissible as being manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for inadmissibility have been established.

     For these reasons, the Commission, unanimously,

     DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without

     prejudging the merits of the case.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber