Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23002/93

by K.F.Y.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 January 1995, 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

Mr. K. ROGGE, 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 12 November 1993

by K.F.Y. against the Netherlands and registered on 24 November 1993

under file No. 23002/93;

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 is a naturalised Dutch citizen, born in 1950, and

residing at Rotterdam where he owns and runs a company. Before the

Commission he is represented by Ms. V.M. Weski, a lawyer practising in

Rotterdam.

The facts, as submitted by the applicant, may be summarised as

follows.

In 1980 the applicant, who was at that time a resident of Hong

Kong, where he lived with his wife and four children, travelled to the

Netherlands for a holiday. He lost his passport and was unable to

obtain a new passport until 1987. He had therefore been forced to

remain in the Netherlands. His wife and children remained in Hong Kong.

In 1983 the applicant's wife and mother of his four children, who

were born in 1970, 1972, 1976 and 1978 respectively, left the children

for an unknown destination. The children went to live with their

grandmother, who died in 1988. In 1985 they moved to a cousin, but she

emigrated to the United States in 1988. As from that moment the

children lived on their own in the cousin's house in Hong Kong until

either December 1987 or March 1989 when the eldest daughter travelled

to the Netherlands. The other children travelled to the Netherlands to

join their father, stepmother and sister in 1992 and 1993 respectively.

There are no other relatives in Hong Kong.

On 23 June 1987 the divorce between the applicant and his wife

was pronounced. On 28 January 1988 he married a Dutch woman. He has

since obtained Dutch nationality.

The applicant submits that, after his arrival in the Netherlands,

he had frequent contacts with his children when they were still living

in Hong Kong, both by letters and by telephone and that he also

regularly sent them money. In 1989 and 1990 he visited the three

children still remaining in Hong Kong and he stayed with them for one

month.

On 28 November 1989 the applicant requested entry visas

(machtiging tot voorlopig verblijf) for his children from the Ministry

of Foreign Affairs (Ministerie van Buitenlandse Zaken), even though his

eldest daughter appears to have been already living with him at that

time. In support of his request he claimed that the children could live

in his house and that he could support them and pay for their

education. He would also be able to employ them in his company. On

25 June 1990 his request was rejected.

The applicant filed an objection (bezwaarschrift) against this

decision on 10 August 1990 with the Minister of Foreign Affairs. After

having consulted an advisory board, the Minister rejected the objection

on 28 March 1991.

On 23 April 1991 the applicant lodged an appeal with the Judicial

Division of the Council of State (Afdeling Rechtspraak van de Raad van

State). To substantiate his appeal the applicant submitted copies of

bank statements, showing transfers of money from the Netherlands to his

children in Hong Kong in 1988, 1989 and 1990, telephone bills, showing

regular telephone calls to Hong Kong from 1986 until 1991, and letters

in Chinese characters, some of which bear dates in the years 1983,

1987, 1988 and 1989.

On 2 July 1993 the Judicial Division rejected his appeal. It

observed that, since the applicant's request was aimed at obtaining

permanent residence in the Netherlands for his children, they should

fulfil the general conditions for aliens wishing to obtain a residence

permit. Having regard to Dutch immigration policy, the Judicial

Division found there was no international agreement obliging the

Netherlands to grant the children residence and their presence in the

Netherlands would not serve any essential Dutch interest. Furthermore,

it observed that the children could not be granted residence permits

for family reunion, as the actual family ties had been severed since

1980. The Judicial Division further found that there were no compelling

reasons of a humanitarian nature allowing them to reside in the

Netherlands since the children, given their age, should be able to live

independently in Hong Kong.

The Judicial Division also rejected the applicant's argument that

his eldest daughter, after having undergone an operation in Hong Kong

in February 1989, needed further medical treatment in the Netherlands.

Insofar as the applicant had complained of a violation of Article

8 of the Convention, the Judicial Division held that, although there

existed family life between the applicant and his children, there was

no interference with the right to respect for this life as the refusal

to issue the entry visas did not deprive them of a residence permit

which enabled them to lead a family life in the Netherlands.

The Judicial Division finally examined whether in the present

case the right to respect for family life within the meaning of Article

8 of the Convention entailed a positive obligation on the Netherlands

to issue the entry visas. It found, however, that, in the absence of

compelling reasons of a humanitarian nature, the Minister for Foreign

Affairs had not impaired the applicant's right to respect for his

family life when he applied the restrictive immigration policy followed

by the Dutch authorities.

In the meantime, the applicant's two eldest children and the

applicant on behalf of the two youngest, requested residence permits

on 14 April 1993, at which date all the children resided, albeit

unlawfully, with their father in the Netherlands.

These requests were rejected by the Deputy Minister of Justice

on 8 and 10 June 1993 respectively. The subsequent requests for a

review of these decisions were denied suspensive effect on

17 August 1993. The applicant's two eldest children and the applicant

on behalf of the two youngest then instigated summary proceedings (kort

geding) before the President of the Regional Court of Haarlem,

requesting an injunction prohibiting the Dutch authorities from

expelling the children before their requests for a review of the

refusal to grant residence permits had been decided, or until the

application before the European Commission of Human Rights had been

dealt with.

In his interlocutory judgment of 7 December 1993 the President

of the Haarlem Regional Court considered that the review of the

decisions to refuse the children a residence permit did not have a

reasonable chance of success in the light of the Judicial Division's

rejection of the applicant's appeal against the refusal of entry visas.

However, having regard to the Commission's decision on the

admissibility of Application No. 14852/89 (Akhtar/Johangir, Dec.

29.6.92), the President adjourned the summary proceedings and ordered

the applicant and his children to produce evidence of the fact that

family life had continued to exist between them after the applicant's

departure from Hong Kong and to substantiate their claim that the

children could not be looked after in Hong Kong or anywhere else.

Furthermore they were ordered to indicate that there existed further

elements of dependency, involving more than the normal emotional ties,

between the applicant and his eldest daughter who was 19 years of age

at the time her father first requested an entry visa for her.

On 11 November 1994 the President adjourned the summary

proceedings until 15 February 1995, awaiting the outcome of the

proceedings before the Commission.

COMPLAINT

The applicant complains that the refusal by the Netherlands

authorities to issue entry visas to his children in order for them to

join him in the Netherlands, unjustly interfered with his right to

respect for his family life within the meaning of Article 8 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 November 1993 and registered

on 24 November 1993.

On 2 November 1994 the Commission was informed about the

proceedings pending before the Haarlem Regional Court by the Registrar

of this Court. On the same day the applicant was requested to submit

additional information regarding these proceedings.

By letter of 18 November 1994 the applicant submitted the

documents requested.

THE LAW

1. The applicant has complained under Article 8 (Art. 8) of the

Convention that the refusal to issue entry visas to his children

constituted an interference with the right to respect for his family

life.

This provision, 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 (...)."

The Commission considers that, in view of the subsequent

developments after the introduction of the application, the complaint

should now be regarded as being directed against the refusal by the

Dutch authorities to grant the applicant's children residence permits.

The Commission recalls that the Convention does not, as such,

guarantee an alien either the right to enter or to reside in a

particular country, or a right not to be expelled therefrom. It is

within the discretionary power of Contracting States to set conditions

for admission and residence of aliens. 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).

2. The Commission notes that the applicant's eldest daughter was

already no longer a minor at the time the applicant requested an entry

visa for her. In this respect the Commission recalls that relationships

between adults - in the present case a father and his adult daughter -

would not necessarily acquire the protection of Article 8 (Art. 8) of

the Convention without evidence of further elements of dependency,

involving more than the normal emotional ties (cf. No. 10375/83,

Dec. 10.12.84, D.R. 40 p. 196). The Commission does not find that such

elements have been established in the present case.

It follows that the complaint under Article 8 (Art. 8) of the

Convention in respect of the applicant's family life with his eldest

daughter is manifestly ill-founded within the meaning of Article 27

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

3. The Commission observes with regard to the applicant's three

younger children that, until they came to the Netherlands, they had not

lived with him since 1980. The applicant lived in the Netherlands,

where he had remarried, and the children lived in Hong Kong, initially

with their mother and later with their grandmother followed by their

niece. From 1988 they lived on their own. The applicant helped to

support his children financially, had frequent contacts with them and,

in 1989 and 1990, visited them.

From the moment the three children arrived, albeit unlawfully,

in the Netherlands they have lived with their father, stepmother and

eldest sister as a family.

The Commission finds that the links between the applicant and

these three children may be regarded as constituting family life within

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

As regards the refusal by the Netherlands authorities to grant

residence permits to the applicant's three younger children, the

Commission considers, however, that it does not need to examine whether

this constitutes a violation of the applicant's right to respect for

family life, since the appeal proceedings against the refusal are still

pending. Although these proceedings have been denied suspensive effect,

the children are allowed to await the outcome of the summary

proceedings before the President of the Haarlem Regional Court. Given

that in these proceedings so far no final decision has been taken, the

Commission finds that the applicant has not exhausted domestic remedies

within the meaning of Article 26 (Art. 26) of the Convention.

It follows that the remainder of the application must be rejected

under Article 27 para. 3 (Art. 2-3) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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K.F.Y. v. THE NETHERLANDS

K.F.Y. v. THE NETHERLANDS

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