Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26669/95

by Edgardo TY

against the Netherlands

The European Commission of Human Rights sitting in private on

21 October 1996, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 April 1994 by

Edgardo TY against the Netherlands and registered on 8 March 1995 under

file No. 26669/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1955, is a Philippine national. He is

registered at his brother's address in Amsterdam. Before the Commission

he is represented by Mr. P. Boeles, a lawyer practising in Amsterdam,

the Netherlands.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

A. Particular circumstances of the case

The applicant has been registered at his brother's address in

Amsterdam since 14 September 1987.

On 1 July 1988 he requested a residence permit "for the purpose

of work" (on the mainland).

The head of the Amsterdam police refused this application on the

same day, stating that granting him such a permit would be contrary to

the public interest.

On 7 July 1988 the applicant requested the State Secretary for

Justice (Staatssecretaris van Justitie) to review the decision of the

head of police.

Pending the review proceedings, the applicant commenced

employment with Universal Ogden Services B.V. From 1 April 1991 he has

been working as a steward on board a drilling rig in the Dutch sector

of the North Sea.

On 24 July 1991 the State Secretary for Justice rejected the

applicant's request for review. The State Secretary recalled that

pursuant to Section 11 para. 5 of the Aliens Act (Vreemdelingenwet) the

granting of a residence permit could be refused on grounds of public

interest, whereas the Dutch authorities in applying Section 11 para. 5

of the Aliens Act followed a restrictive policy in view of the

situation as regards the population and employment in the Netherlands.

Furthermore, the State Secretary recalled that pursuant to the

Aliens Circular 1982 (Vreemdelingencirculaire) a foreigner working on

board a drilling rig in the Dutch sector of the continental shelf does

not need a residence permit or a work permit. This implies that he is

able to work on a drilling rig without having to fulfil the conditions

attached to the granting of a residence permit. Moreover, such a

foreigner is allowed to reside on the mainland without a residence

permit during his periods of leave.

The State Secretary finally recalled that only when a foreigner

working on board a drilling rig meets certain specific requirements,

will he be eligible for a residence permit. It was held that in the

present case the applicant fulfilled neither the regular conditions for

obtaining a residence permit, nor the special requirements for

foreigners working on board drilling rigs in the Dutch sector of the

continental shelf.

On 25 July 1991 the applicant filed an appeal with the Judicial

Division (Afdeling rechtspraak) of the Council of State (Raad van

State).

At the request of the Judicial Division of the Council of State,

the State Secretary for Justice submitted written observations on

21 February 1992.

In reply, the applicant submitted further observations on

28 September 1992. He explained that from 1989 he had had a

relationship with Miss H.G.L., a Philippine national, and that they

intended to marry. However, his wife would only be allowed to reside

in the Netherlands after a residence permit had been issued to him. The

applicant further alleged that Dutch policy concerning family

reunification made an unjustified distinction between foreigners who

work on board a drilling rig in the Dutch sector of the continental

shelf and foreigners who work on the Dutch mainland. In this respect

the applicant stressed in particular that foreigners working offshore

need to have worked for seven years before becoming eligible for a

residence permit "for the purpose of family reunification", whereas

there is no waiting period for foreigners working on the mainland to

be reunited with their families. In the applicant's view this

distinction was not objective or reasonable, and was not proportionate

to any legitimate aim which the Dutch Government may have pursued. He

invoked Article 8 in conjunction with Article 14 of the Convention.

The Judicial Division of the Council of State dismissed his

appeal on 2 November 1993. It recalled in the first place that, under

international law, the State has no obligations to apply Dutch aliens

law to drilling rigs in the Dutch sector of the continental shelf in

exactly the same manner as on the mainland.

Furthermore, the Judicial Division of the Council of State

considered the different conditions laid down in Section B 11.6.4 of

the Aliens Circular 1982 not to be unreasonable. It held that contrary

to foreigners working on board drilling rigs in the Dutch sector of the

continental shelf, foreigners working on the mainland had to obtain a

residence permit "for the purpose of work". In order to obtain such a

permit, it would first have to be established whether the presence in

the Netherlands of such a foreigner serves an essential national

interest. Only after having obtained a residence permit on these

grounds would foreigners working on the mainland become eligible for

family reunification without any further conditions having to be

fulfilled.

The Judicial Division of the Council of State held that, since

the applicant had benefited from the more advantageous policy

concerning access to the labour market on board drilling rigs in the

Dutch sector of the continental shelf where the requirement of

"essential national interest" does not apply, there was no reason to

assume that the State Secretary for Justice had violated the Convention

by applying a less advantageous policy concerning the eligibility for

a residence permit "for the purpose of family reunification".

On 24 August 1994 the applicant and Miss H.G.L. were married.

B. Relevant domestic law

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 reasons of a

humanitarian nature (klemmende redenen van humanitaire aard).

An "essential national interest" is considered to exist where a

foreigner will be 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

European Union citizens have priority over most other foreigners.

Pursuant to Section B 11.6.4.1 of the Aliens Circular 1982, the

general aliens policy is not applicable to foreigners who work on

ships, drilling rigs or in the international road transport business,

since they perform their professional activities wholly or mainly

outside the Dutch mainland. In other words, working in the above-

mentioned sectors is considered as operating on the "international

labour market". Therefore, this category of foreigners is, in

principle, not eligible for a residence permit in the Netherlands.

However, there are specific rules for, inter alia, family

reunification.

Pursuant to Section B 11.6.4.3 of the Aliens Circular 1982, a

foreigner working on board a drilling rig in the Dutch sector of the

continental shelf who aims at family reunification in the Netherlands,

should be in possession of a residence permit himself.

He qualifies for a residence permit "for the purpose of family

reunification" under the following conditions:

- the foreigner has worked on the rig for seven years;

- the foreigner has suitable housing for his family at his

disposal; and

- the foreigner is certain of employment for at least another

year.

Such residence permit will be granted to the foreigner under the

restriction: "for the purpose of work as employee on board a drilling

rig in the Dutch sector of the continental shelf".

COMPLAINT

The applicant complains under Article 14 in conjunction with

Article 8 of the Convention of an unjustified difference in treatment

concerning the eligibility for family reunification between foreigners

who work on board drilling rigs in the Dutch sector of the continental

shelf and foreigners who work on the Dutch mainland.

THE LAW

The applicant contends that the difference in treatment enacted

in provisions of Dutch aliens law between various categories of

foreigners amounts to discrimination contrary to Article 14, taken in

conjunction with Article 8 (Art. 14+8), of the Convention.

Article 14 (Art. 14) of the Convention reads:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

Article 8 (Art. 8), insofar as relevant, reads:

"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 Commission recalls that according to the Convention organs'

established case-law, Article 14 (Art. 14) complements the other

substantive provisions of the Convention and the Protocols. It has no

independent existence since it has effect solely in relation to "the

enjoyment of the rights and freedoms" safeguarded by those provisions.

Although the application of Article 14 (Art. 14) does not necessarily

presuppose a breach of those provisions - and to this extent it is

autonomous -, there can be no room for its application unless the facts

at issue fall within the ambit of one or more of the latter (cf. Eur.

Court HR, Abdulaziz, Cabales and Balkandali v. United Kingdom judgment

of 28 May 1985, Series A no. 94, p. 35, para. 71).

The Commission further recalls that according to the case-law of

the Convention organs, the duty imposed on Contracting States by

Article 8 (Art. 8) cannot be considered as extending to a general

obligation on the part of a Contracting State to respect the choice by

married couples of the country of their matrimonial residence (cf.

Abdulaziz, Cabales and Balkandali judgment, loc. cit., p. 34, para.

68). However, the Commission finds that the present case falls within

the ambit of Article 8 (Art. 8) of the Convention since it concerns the

applicant's family life. Accordingly, Article 14 (Art. 14) is

applicable to the present case.

The Commission points out that Article 14 (Art. 14) safeguards

individuals, placed in analogous situations, from discrimination. A

difference in treatment is discriminatory if it "has no objective and

reasonable justification", that is, if it does not pursue a "legitimate

aim" or if there is not a "reasonable relationship of proportionality

between the means employed and the aim sought to be realised" (see,

inter alia, Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979,

Series A no. 31, p. 16, para. 33; Eur. Court HR, Rasmussen v. Denmark

judgment of 28 November 1984, Series A no. 87, p. 14, para. 38; and

Abdulaziz, Cabales and Balkandali judgment, loc. cit., p. 35, para.

72).

In the present case, the Commission notes that under Dutch

immigration law, foreigners who work on board drilling rigs in the

Dutch sector of the continental shelf are subject, in respect of

matters concerning family reunification, to less favourable treatment

than foreigners who work on the Dutch mainland.

The Commission considers, however, that under Dutch law

fundamental differences between these two categories of foreigners also

exist in respect of legal status and conditions for entry.

The Commission notes that under Dutch law a foreigner employed

on the mainland is considered to operate on the Dutch labour market.

The conditions to be fulfilled in order to become eligible for a

residence permit which gives access to this labour market are strict

since such a permit is only granted if it is found that the presence

in the Netherlands of a particular foreigner serves an essential

national interest. This is only considered to be the case where a

foreigner will be employed in a sector where the number of capable

people available on the Dutch or European Union labour markets is not

sufficient to fill all vacancies. A foreigner employed on a drilling

rig in the Dutch sector of the continental shelf, on the other hand,

is considered to operate on the international labour market. Access to

this market does not require the fulfilment of any conditions since

under Dutch law this foreigner does not need a residence permit in

order to be able to spend his leave in the Netherlands.

The Commission considers, therefore, that the two categories of

foreigners involved are not placed in analogous situations, each

category being characterised by a corpus of rights and obligations of

which it would be artificial to isolate one specific aspect.

Consequently, the Commission cannot find that the difference in

treatment complained of is discriminatory within the meaning of Article

14 of the Convention in conjunction with Article 8 (Art. 14+8).

It follows that the application is manifestly ill-founded within

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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TY v. THE NETHERLANDS

TY v. THE NETHERLANDS

LEXI