Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22791/93

by Bidiawatie MAIKOE and Fijentiemala BABOELAL

against the Netherlands

The European Commission of Human Rights sitting in private on

30 November 1994, the following members being present:

Present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. 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 5 August 1993 by

Bidiawatie MAIKOE and Fijentiemala BABOELAL against the Netherlands and

registered on 19 October 1993 under file No. 22791/93;

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 first applicant is a Surinamese national, born in 1968 in

Surinam, and currently resides at Rotterdam. The second applicant is

the first applicant's daughter and has the Dutch nationality. She was

born in 1988 and resides at Rotterdam with the first applicant. Before

the Commission the first applicant is represented by Mr. Angad Gaur,

a lawyer practising in The Hague. The second applicant is represented

by the first applicant.

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

summarised as follows.

On 19 August 1986 the first applicant arrived in the Netherlands.

On 25 February 1987 she married a Dutch national. On 17 March 1987 she

requested and obtained a Dutch residence permit in order to stay with

her spouse. This permit expired on 17 March 1988, on which date she

obtained a residence permit for an unlimited period for the same

purpose.

On 13 June 1988 the first applicant and her husband had a

daughter, the second applicant. The daughter holds Dutch nationality

in accordance with the Dutch Nationality Act (Rijkswet op het

Nederlanderschap), as her father is a Dutch national.

In September 1989 the first applicant's husband left the marital

home. According to the applicant he continued to see his daughter every

second week; according to the Dutch courts no intensive contact between

father and daughter was shown. The father did not financially or

otherwise contribute to his daughter's upbringing. It appears that the

first applicant has started divorce proceedings.

On 2 October 1989 the first applicant was granted welfare

benefits under the General Welfare Act (Algemene Bijstandswet) for

herself and her daughter.

On 29 August 1990 the first applicant applied for an independent

residence permit. However, as she had not been married for three years

when her husband left the marital home in September 1989, her request

was dealt with as a first request for admission to the Netherlands. On

5 September 1990 the Deputy Minister of Justice (Staatssecretaris van

Justitie) rejected the applicant's request.

On 17 October 1990 the first applicant requested a review

(herziening) of this decision. As this request was not determined

within three months she filed an appeal with the Judicial Division of

the Council of State (Afdeling Rechtspraak van de Raad van State) on

18 January 1991 against the fictitious rejection (fictieve weigering)

of the request for review.

Following a hearing on 27 June 1991, the Advisory Commission for

Aliens (Adviescommissie voor Vreemdelingenzaken) unanimously advised

the Deputy Minister of Justice to reject the request for review. The

Commission considered that the applicant did not fulfil the

requirements for admission to the Netherlands, that her presence in the

Netherlands did not serve an essential Dutch interest and that there

were no compelling reasons of a humanitarian nature to allow her to

reside in the Netherlands.

The Advisory Commission found no indication that the applicant

would not be able to support herself in Surinam, given that her mother,

brothers and sister, on whom she could rely if need be, reside in

Surinam. The fact that her daughter had the Dutch nationality did not

constitute a compelling humanitarian reason as the girl was very young

and could not be considered as being rooted in Dutch society. In this

respect the Commission also took into account that the girl had only

briefly lived with her father, that there were apparently no regular

contacts between the child and her father, that no visiting agreement

had been concluded and that the father does not contribute to the

child's upbringing.

Following a hearing on 15 December 1992, the Judicial Division

rejected the first applicant's appeal on 3 May 1993. It recalled that

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

granting of a residence permit or the prolongation thereof can be

refused on grounds of public interest (algemeen belang), whereas the

Dutch authorities in applying Section 11 para. 5 of the Aliens Act

follow a restrictive immigration policy in view of the situation as

regards the population and employment in the Netherlands. Insofar as

the first applicant had complained of a violation of Article 3 of

Protocol No. 4 to the Convention, the Judicial Division held that:

"the challenged decision implies only the refusal of the

applicant's right to remain in the Netherlands, but does not as

such impinge on the right of her daughter to stay in the

Netherlands. If this decision leads, as the applicant states, to

her daughter's departure from the Netherlands, then this will

only be the result of the applicant's choice to take the child

with her to Surinam."

With regard to the alleged violation of Article 8 of the

Convention, the Judicial Division held that the interference with the

first applicant's right to family life with her daughter was in

accordance with Dutch law and justified in the interest of the economic

well-being of the Netherlands. The Judicial Division took account of

the fact that the second applicant was 21/2 years old at the time of the

challenged decision by the Deputy Minister and could, therefore, not

be regarded as deeply rooted in Dutch society, and that no objective

obstacles to the enjoyment of family life in Surinam had appeared. The

Judicial Division also took into consideration that the first applicant

lived on welfare benefits.

The Judicial Division also noted that as a result of the

rejection of the first applicant's request for a residence permit it

seemed seem likely that the second applicant would have to follow her

mother to Surinam. It examined the question whether or not this would

violate the second applicant's right under Article 8 of the Convention

to respect for her family life with her father. It found that the

refusal of the first applicant's request interfered with the second

applicant's right to respect for her family life under Article 8 para.

1 of the Convention, but that this interference was justified under

para. 2 of this provision as being in the interest of the economic

well-being of the country. The Judicial Division observed that the

contacts between the second applicant and her father did not seem to

be of an intensive nature, that the father did not support either the

first or the second applicant financially and that the first applicant

received welfare benefits on behalf of the second applicant.

COMPLAINTS

1. The applicants complain under Article 3 of Protocol No. 4 to the

Convention that the first applicant's expulsion to Surinam would lead

to a de facto expulsion of the second applicant, as the first applicant

has no alternative but to take her daughter with her to Surinam.

2. The applicants further complain under Article 8 of the Convention

that the refusal to grant the first applicant a residence permit

constitutes not only an unjust interference with the right to respect

for family life between themselves, but also between the second

applicant and her father. They complain in particular that this

interference cannot be regarded as being necessary in a democratic

society.

THE LAW

1. The applicants complain under Article 3 of Protocol No. 4

(P4-3) to the Convention that the first applicant's expulsion to

Surinam would entail a de facto expulsion of the second applicant.

Article 3 of Protocol No. 4 (P4-3), insofar as relevant,

reads:

"1. No one shall be expelled, by means (...) of an individual

(...) measure, from the territory of the State of which he is a

national.

(...)."

The Commission observes in the first place that the first

applicant is a Surinamese national and does not hold Dutch citizenship.

Article 3 of Protocol No. 4 (P4-3) only prohibits a Contracting State

from expelling its own nationals. The Commission, therefore, finds that

the first applicant cannot claim any right under this provision as

regards her possible expulsion from the Netherlands.

As regards the second applicant the Commission notes that the

Dutch authorities have not ordered her expulsion.

It follows that this part of the application is manifestly ill-

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

Convention.

2. The applicants further complain under Article 8 (Art. 8) of the

Convention that there has been an interference with the right to

respect for family life between, on the one hand, the first and the

second applicant, and, on the other, between the second applicant and

her father.

The relevant part of Article 8 (Art. 8) of the Convention 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 recalls in the first place 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

(cf. No. 13654/88, Dec. 8.9.88, D.R. 57 p. 287). It is within the

discretionary power of Contracting States to set conditions for

admission and residence of aliens and to revoke residence permits in

cases where the grounds on which they have been granted no longer

exist.

Nevertheless, the exclusion of a person from a country where

close members of his or her family are living may amount to an

infringement of Article 8 (Art. 8) of the Convention. In determining

whether the expulsion of an alien interferes with his or her right to

respect for family life within the meaning of Article 8 (Art. 8),

regard must be had to the practicability and reasonableness of the

close members of family concerned accompanying or following the alien

and not only to the links established in the host country, but also to

their precarious nature where an initial residence permit has been

conditional throughout (cf. No. 9478/81, Dec. 8.12.1981, D.R. 27 p.

243; and No. 11333/85, Dec. 17.5.85, D.R. 43 p. 227). A further factor

to be considered is the links which the deportee and the other members

of the family have with the country of destination and in particular

whether there are further members of the family or relatives there.

This principle applies also where one or more of the deportee's

family are nationals of the country ordering the expulsion (cf. No.

11278/84, Dec. 1.7.85, D.R. 43 p. 216).

It is alleged that it cannot be expected of the second applicant

to follow her mother, who alone provides for her care, to Surinam.

The Commission notes that the second applicant is a minor of

Dutch nationality and at present six years old. No compelling reasons

have been shown why the second applicant cannot accompany her mother

to Surinam. Family life between mother and daughter could be continued

there. The Commission, therefore, finds no lack of respect for family

life between mother and daughter. This part of the application must be

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

being manifestly ill-founded.

3. Insofar as the second applicant complains that the expulsion of

the first applicant would interfere with the second applicant's family

life with her father, the Commission recalls that family life continues

after divorce or separation (cf. Eur. Court H.R., Hokkanen judgment of

23 September 1994, Series A no. 299-A, para. 54; No. 11526/85, Dec.

10.10.1986, D.R. 50 p. 219; and No. 12411/86, Dec. 4.3.1987, D.R. 51

p. 245). There is therefore family life within the meaning of Article

8 (Art. 8) of the Convention between the second applicant and her

father.

The Commission notes that both the second applicant and her

father are Dutch nationals and therefore entitled to stay in the

Netherlands. It is true that, in case the first applicant will be

expelled to Surinam, the second applicant may follow her. Though this

will be the result of the first applicant's decision for which the

respondent State cannot be held responsible under the Convention, it

will in fact lead to an interference of family life between father and

daughter.

Even assuming that the decision complained of would amount to a

lack of respect by the Dutch authorities for the second applicants'

family life, the Commission is of the opinion that this interference

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

for the following reasons.

The Commission notes that the first applicant's request for a

residence permit was rejected on the ground that she did not fulfil the

conditions for obtaining an independent residence permit, since she had

not been married for three years at the time her husband left her,

since her presence in the Netherlands did not serve any specific Dutch

interest, and since no compelling humanitarian reasons were considered

to exist on the basis of which she could be granted a residence permit.

Recalling that it is in the first place for the domestic

authorities to apply and interpret domestic law, the Commission, noting

the grounds of the decisions complained of, is satisfied that the

interference complained of was "in accordance with the law" within the

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

As regards the legitimate aim of the interference, the Commission

notes that the applicant received welfare benefits. Recalling that the

policy followed by the Dutch authorities in immigration matters is

clearly related to the economic well-being of the country, the purpose

being, inter alia, to restrict immigration into a densely populated

country (cf. Eur. Court H.R., Berrehab judgment of 21 June 1988, Series

A no. 138, p. 15, para. 26), the Commission accepts that 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.

As to the necessity of the interference the Commission considers

that in the present case the task of the Contracting States to maintain

public order, in particular by exercising their right to control the

entry, residence and expulsion of aliens, justifies the interference

with the right to family life between the second applicant and her

father.

It follows that this part of the application must also be

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

being manifestly ill-founded.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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MAIKOE AND BABOELAL v. THE NETHERLANDS

MAIKOE AND BABOELAL v. THE NETHERLANDS

LEXI