AS TO THE ADMISSIBILITY OF

                      Application No. 21702/93

                      by Salah AHMUT, Souad AHMUT and Souffiane AHMUT

                      against the Netherlands

      The European Commission of Human Rights (Second Chamber) sitting

in private on 12 October 1994, the following members being 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 23 February 1993

by  Salah AHMUT, Souad AHMUT and Souffiane AHMUT against the

Netherlands and registered on 22 April 1993 under file No. 21702/93;

      Having regard to :

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

      Commission;

-     the observations submitted by the respondent Government on

      21 February 1994 and the observations in reply submitted by the

      applicant on 14 April 1994;

      Having deliberated;

      Decides as follows:

THE FACTS

1. Particular circumstances of the case

      The first applicant was born in 1945 in Morocco, and resides in

Rotterdam. He has both the Dutch and the Moroccan nationality. The

second and third applicants are his daughter and son. They are Moroccan

nationals, born on 28 July 1972 and 27 November 1980 respectively, and

currently reside in Rotterdam. The second applicant is the mother of

a child whose father resides in Morocco. Before the Commission the

applicants are represented by Mr. J.H.M. Nijhuis, a lawyer practising

in Rotterdam.

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

summarised as follows.

      The first applicant's marriage with the second and third

applicants' mother was dissolved in 1984. The five children born out

of this marriage in 1969, 1970, 1971, 1972 and 1980 remained with their

mother. The first applicant went to the Netherlands in September 1986

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

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

residence permit.

      The first applicant's first wife died in March 1987. Their five

children were taken into the household of the first applicant's mother.

The first applicant supported the second and third applicants

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.

      In February 1990, the first applicant separated from his second

wife. Their divorce was pronounced on 21 December 1990.

      On 26 March 1990, the second and third applicants entered the

Netherlands without having the required authorisation for entry

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

requested residence permits (vergunning tot verblijf) on their behalf

on the basis of family reunification.

      These requests were rejected by the Deputy Minister of Justice

on 26 June 1990. The Deputy Minister noted that the second and third

applicants had entered the Netherlands without the required

authorisation for entry. As to the requests for a residence permit on

the basis of family reunification, the Deputy Minister considered that

the second and third applicants 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 they did not in fact belong to their

father's family in the Netherlands, as, following their parents'

divorce, they had remained with their mother and had subsequently

become members of their paternal grandmother's family in Morocco. It

had furthermore not been shown in which way their father had

contributed either financially or otherwise to their upbringing. It had

not been substantiated that their paternal grandmother could no longer

care for them.

      As regards Article 8 of the Convention, the Deputy Minister did

not find that the link between the first applicant and the second and

third 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 finally held there were no other compelling

humanitarian reasons on the basis of which residence permits to the

second and third applicants could be granted.

      On 26 October 1990, two other children from the first applicant's

first marriage, Foad and Chauki Daijaf, born in 1970 and 1971

respectively, obtained permission to reside in the Netherlands for

initially one year to study at the Technical University of Delft.

      On 13 November 1990, the first applicant requested the Deputy

Minister of Justice to review (herziening) the two decisions of

26 June 1990. By decision of 4 January 1991, these requests were

granted suspensive effect in respect of the proposed expulsion of the

second and third applicants.

      Since the Deputy Minister had failed to decide the requests for

review within the prescribed period of three months, the first

applicant - on behalf of the third applicant - and 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

presumed refusals (fictieve weigering) by the Deputy Minister of the

requests for a review.

      On 11 March 1991, the first applicant married a Moroccan

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

residence permit.

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

Commission for Aliens Affairs (Adviescommissie voor Vreemdelingenzaken)

in respect of the requests of 13 November 1990 for a review. The

Commission heard the first and the second applicants in the presence

of their lawyer; the third applicant was also present, but no questions

were put to him.

      During this 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

his children of his first marriage into their household, that he never

applied for any children 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 his oldest son from his first

marriage lives and works in Morocco and that he has two brothers living

in Morocco. The second applicant stated, inter alia, that she is

unmarried and pregnant since July 1990, that the prospective father

resides in Morocco, but travels between the Netherlands and Morocco on

a regular basis.

      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 requests

for a review. However, as it had appeared in the meantime that the

applicants had appealed to the Judicial Division of the Council of

State, the Deputy Minister did not determine the request for a review.

      Following a hearing on 10 August 1992, the Judicial Division

rejected the appeals on 24 August 1992. It held that the second and

third applicants did not meet the requirements for a residence permit

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

on Aliens, as they could not be considered as members of their father's

family in the Netherlands. In respect of the second applicant the

Judicial Division, noting her age, the fact that she had an older adult

brother and two uncles upon whom she could rely where necessary, the

fact that the prospective father of her child resided in Morocco and

that it had not appeared that it was impossible for her own father to

continue to provide for her financially, found that she could not claim

a right to reside in the Netherlands. In respect of the third applicant

the Judicial Division held additionally that it had not appeared nor

been argued that his older brother or two uncles in Morocco could not

care for him. He could return to Morocco together with his sister who

could equally provide him with care in Morocco. It had not appeared or

been argued that it was impossible for his father to continue to

provide for him financially.

      Under Article 8 of the Convention the Judicial Division found no

interference with the applicants' rights since their cases did not

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

enjoy a family life with their father in the Netherlands. The Judicial

Division did not consider that the Netherlands authorities, after

weighing the personal interests of the applicants against the general

interest, were under a positive obligation under Article 8 of the

Convention to grant the second and third applicants residence permits.

2. Relevant domestic law

      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

(Vreemdelingenwet), the regulations implementing this Act, and the

Circular on Aliens (Vreemdelingencirculaire). The Circular on Aliens

is a compilation of binding policy rules and directives drawn up and

published by the Dutch Ministry of Justice.

      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.

      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, the spouse of a Dutch

national or an alien who lawfully resides in the Netherlands, and to

his/her minor children regardless of whether they are born in or out

of wedlock, provided that these children in fact belong to his/her

family.

      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.

COMPLAINT

      The applicants complain that the Netherlands authorities' refusal

to grant the second and third applicants a residence permit in order

to take up residence with the first applicant unjustly interfered with

their right for respect for their family life within the meaning of

Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 23 February 1993 and registered

on 22 April 1993.

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

communicate the application to the respondent Government and to invite

them to submit written observations on the admissibility and merits of

the application.

      The Government's observations were submitted on 21 February 1994

and the applicants' observations in reply were submitted on 14 April

1994.THE LAW

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

Convention that the refusal to grant the second and third applicant a

residence permit unjustly interfered with their right to respect for

their family life.

      Article 8 (Art. 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 (...)."

      The Government submit in the first place that the second

applicant's bond with her relatives living in Morocco should be

regarded as family ties and that the bond between the first and the

second applicant has weakened over the years to such an extent that

they can no longer be regarded as constituting family life within the

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

bond between the first and the third applicant, the Government submit

that their relationship 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 residence permits to the second and

third applicants 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 and third applicants reside in Morocco. Finally the Government

submit that, should the Commission be of the opinion that the refusal

to grant residence permits 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; the lifestyle of the second and

third applicants in Morocco would not be such that they cannot

reasonably be expected to continue to live in Morocco.

      The applicants submit, referring, inter alia, to the emotional

and financial bonds that continued to exist after 1984, and to the fact

that the second and third applicants were taken into the household of

the paternal grandmother, that there is family life within the meaning

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

grant residence permits to the second and third applicants constitutes

an interference with their family life. In this respect the applicants

argue that the second and third applicants cannot return to their

grandmother and that none of their brothers was living in the household

of the grandmother when they left in March 1990. According to the

applicants the refusal of residence permits resulted in a situation in

which continuation of family life as it had existed until then was no

longer possible. The applicants finally submit that the interference

is not justified under Article 8 para. 2 (Art. 8-2) of the Convention.

      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).

      The Commission finds that the links between the first applicant

and the second and third applicants may be regarded as constituting

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

Convention.

2.    As regards the right to respect for the family life of the first

and second applicants, 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.

      Noting that the second applicant is the mother of a child, that

she has substantial links with Morocco, where she was born, where,

until March 1990, she has always lived and where also her paternal

grandmother, two uncles, an adult brother and the father of her child

reside, the Commission concludes that the decision to refuse the second

applicant a residence permit does not amount to a lack of respect for

the first and second applicants' family life within the meaning of

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

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

Convention in respect of the second applicant is manifestly ill-founded

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

3.    As regards the right to respect for the family life between the

first and third applicants, the Commission, having regard to the

parties' submissions, and in the light of the criteria established by

the Convention organs, considers that this part of the application

raises issues of fact and law requiring an examination of the merits.

The application cannot, therefore, be declared 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, by a majority,

      DECLARES ADMISSIBLE, without prejudging the merits of the case,

      the first and third applicants' complaint under Article 8

      (Art. 8) of the Convention concerning their right to respect for

      their family life;

      and, unanimously,

      DECLARES INADMISSIBLE the remainder of the application.

      Secretary to the Second Chamber  President of the Second Chamber

      (K. ROGGE)                             (S. TRECHSEL)