Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14852/89

by Mohammad Johangir AKHTAR, Asad JOHANGIR,

and Saqib JOHANGIR

against the Netherlands

The European Commission of Human Rights sitting in private on 7

April 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

Mr. M. de SALVIA, Deputy 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 16 January 1989

by Mohammad Johangir AKHTAR, Asad JOHANGIR and Saqib JOHANGIR against

the Netherlands and registered on 31 March 1989 under file No.

14852/89;

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, M.J. Akhtar, born in 1945, is a naturalised

Dutch citizen and resides in Zaandam, the Netherlands. The second and

third applicants, A. and S. Johangir are his sons. They are Pakistani

citizens, born on respectively 16 June 1967 and 5 September 1974, and

reside in Jhelum, Pakistan. Before the Commission, the applicants are

represented by Mr. G. Caarls, a lawyer practising in Amsterdam.

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

summarised as follows.

According to the first applicant, his first wife S. Begum, whom

he married in Pakistan in 1962, died in 1977. Out of this marriage

three children were born in 1964, 1967 (the second applicant) and 1974

(the third applicant). Until 1979 the applicants lived together with

the first applicant's father, the first applicant's brother, the

latter's wife and their five children, in one house in Pakistan.

In 1979, the first applicant went to the Netherlands, where he

resided illegally until his expulsion to Pakistan on 2 December 1981.

In the course of 1982 he returned to the Netherlands. On 13 September

1982 he married a Dutch woman, who already had three children from a

previous marriage. This marriage made him eligible for a residence

permit, which he in fact obtained on 11 November 1982. He obtained

Dutch nationality by Royal Decree on 28 October 1987.

At present the first applicant does not live with his second wife

anymore. She started divorce proceedings in the course of 1990.

As from 1979, the first applicant's children stayed with his

brother. The first applicant supported his children financially

insofar as his financial means allowed and maintained regular contacts

by correspondence, telephone and annual visits.

On 22 November 1985 the first applicant requested an

authorisation for temporary stay (machtiging tot voorlopig verblijf)

on behalf of his three children for family reunification. At the

moment of this request the second and third applicants were

respectively 18 and 11 years old. By decision of 24 January 1986,

communicated to the applicants by letter of 24 February 1986 from the

Netherlands Embassy in Islamabad, the Minister of Foreign Affairs

rejected the request.

On 20 March 1986 the first applicant filed an appeal against this

decision with the Judicial Division of the Council of State (Afdeling

Rechtspraak van de Raad van State) in which he invoked Article 8 of the

Convention.

On 24 November 1987 the first applicant requested the President

of the Judicial Division of the Council of State to grant an interim

measure (voorlopige voorziening), which was rejected by the President's

decision of 22 January 1988.

In its decision of 19 July 1988 the Judicial Division of the

Council of State rejected the first applicant's appeal of 20 March

1986. It considered that the Minister of Foreign Affairs, in weighing

all the interests involved, had given a reasonable decision. In

respect of Article 8 of the Convention it considered that at the time

of the contested decision no family life between the first applicant

and his three children existed anymore, as they had been taken into the

family of the first applicant's brother on a permanent basis, whereas

the first applicant had founded a new family in the Netherlands, of

which the three children from his previous marriage never formed a

part. The Judicial Division held furthermore that the first applicant

had failed to demonstrate how he was involved in the upbringing of

these three children and that, even if he visited them annually and

even if they were financially dependent on him, this would not alter

the decision having regard in particular to the already advanced age

of the children concerned.

In their further observations on the merits, the Government state

that, in connection with renewed requests on the part of the first

applicant for family reunion with various persons from Pakistan

including S. Johangir, the third applicant, a number of new facts have

come to light.

On 21 December 1990, the first applicant and his Dutch spouse

were formally divorced. The first applicant submitted a renewed

application for family reunion, in which he requested admission for

Mrs. T. Akhtar, whom he claims to have married in 1991, his son S.

Johangir (the third applicant) from his previous marriage with S. Begum

and Mrs. T. Akhtar's four children from a previous marriage.

According to the Government, an investigation by the Netherlands

Embassy in Islamabad into the authenticity of the documents submitted

by the first applicant in support of his new application for family

reunion resulted in the following information:

- the first applicant and Mrs. S. Begum were never married; nor was

the first applicant the father of any children born to Mrs. Begum;

- the first applicant married Mrs. T. Akhtar in 1973, which

marriage has not, to date, been dissolved. They have three children,

of whom the third applicant is one.

The Government state that the first applicant has been informed

of the results of this investigation and that, at his own request, he

has been given until the end of February to submit authentic documents

in support of his request for family reunion.

COMPLAINT DECLARED ADMISSIBLE

The applicants complain under Article 8 of the Convention that,

by refusing the third applicant access to the Netherlands, the

Netherlands authorities have prevented a family reunification of the

first applicant with this child. The applicants are of the opinion

that the concept of family life has been interpreted too narrowly by

the respondent State.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 January 1989 and registered

on 31 March 1989.

On 7 May 1990 the Commission 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 4 September 1990

and the applicants' reply thereto on 19 October 1990.

The Commission decided on 29 June 1992 to declare admissible the

first and third applicants' complaint under Article 8 of the Convention

and inadmissible the remainder of the application.

The Government submitted further observations on 7 October 1992

and supplementary observations on 13 January 1993.

Following the applicants' request to be allowed to react on the

Government's further observations, they were invited to submit their

observations before 1 February 1993.

By letter of 4 February 1993, the Commission informed the

applicants that their observations in reply had, so far, not been

received and transmitted the Government's supplementary observations.

The applicants were requested to include these supplementary

observations in their observations in reply.

Following the applicants' request for an extension of the time-

limit for the submissions of their observations in reply, the President

of the Commission agreed to extend the time-limit until 19 March 1993.

The applicants have not made any submissions since then.

THE LAW

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

Convention that, by refusing the third applicant access to the

Netherlands, the Netherlands authorities have prevented a family

reunification of the first applicant with his child. The applicants

are of the opinion that the concept of family life has been interpreted

too narrowly by the respondent State.

The Commission recalls its decision of 29 June 1992 to declare

admissible the first and third applicants' complaint under Article 8

(Art. 8) of the Convention and inadmissible the remainder of the

application.

In their supplementary observations of 13 January 1993 the

Government submitted that, following his divorce from his Dutch spouse,

the first applicant submitted a renewed application for family reunion,

in which he requested admission for Mrs. T. Akhtar, whom he claims to

have married in 1991, his son S. Johangir (the third applicant) from

his previous marriage with S. Begum and Mrs. T. Akhtar's four children

from a previous marriage.

The Government further submit that an investigation by the

Netherlands Embassy in Islamabad into the authenticity of the documents

submitted by the first applicant in support of his new application for

family reunion resulted in the following information:

- the first applicant and Mrs. S. Begum were never married; nor was

the first applicant the father of any children born to Mrs. Begum;

- the first applicant married Mrs. T. Akhtar in 1973, which

marriage has not, to date, been dissolved. They have three children,

of whom the third applicant is one.

The Government state that the first applicant has been informed

of the results of this investigation and that, at his own request, he

has been given until the end of February to submit authentic documents

in support of his request for family reunion.

According to the Government, the information gathered by them has

shown that certain of the facts on which the first applicant has based

his application are untrue. The Government submit that their Embassy

in Islamabad has noted that all but one of the documents produced by

the first applicant are false and that the first applicant must have

been aware of these forgeries.

The Government finally submit that, if it had been known in 1982,

when the first applicant married a Dutch national - through which he

acquired the right of residence - , that he was already married, this

marriage could never have taken place, as bigamy is prohibited in the

Netherlands.

The Government, therefore, ask the Commission to apply Article

29 (Art. 29) of the Convention and to reject the application on the

basis of abuse of the right of petition within the meaning of Article

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

Article 29 (Art. 29) of the Convention provides:

"After it has accepted a petition submitted under Article

25 (Art. 25), the Commission may nevertheless decide by a

majority of two-thirds of its members to reject the

petition if, in the course of its examination, it finds

that the existence of one of the grounds for non-acceptance

provided for in Article 27 (Art. 27) has been established.

In such a case, the decision shall be communicated to the

parties."

The Commission notes that the applicants have not disputed the

Government's findings and, therefore, considers that the new facts

concerning the applicants' family life should be taken into

consideration in the examination of the applicants' complaint under

Article 8 (Art. 8) of the Convention.

The Commission recalls that the Convention does not guarantee a

right to enter or reside in a particular country. However, the

Commission has also held that, 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. 11278/84, Dec. 1.7.85, D.R. 43 p. 216).

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

provides as follows:

"1. Everyone has the right to respect for his (...) family

life (...)."

In its decision of 29 June 1992 the Commission considered that

there was family life between the first applicant and S. Johangir,

which had been interfered with by reason of the authorities' refusal

to allow this son to join his father in the Netherlands.

However, it appears that the third applicant has substantial

links with Pakistan, where he has always lived and where also his

mother and two brothers reside. The third applicant, who at present is

eighteen years old, has not lived with his father since 1979, when the

latter moved to the Netherlands.

The Commission considers that in these circumstances the decision

by the Dutch authorities to refuse the third applicant access to the

Netherlands does not amount to lack of respect for the applicants'

family life within the meaning of Article 8 (Art. 8) of the Convention.

It follows that the complaint must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

Under these circumstances, the Commission is of the opinion that

the remaining part of the application should be rejected under Article

29 (Art. 29) of the Convention since one of the grounds for

inadmissibility provided for in Article 27 (Art. 27) of the Convention

has been established.

For these reasons, the Commission, by a majority of two-thirds,

Acting under Article 29 (Art. 29) of the Convention,

REJECTS THE REMAINING PART OF THE APPLICATION.

Deputy Secretary to the Commission President of the Commission

(M. de Salvia) (C.A. Nørgaard)

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AKHTAR, JOHANGIR AND JOHANGIR v. THE NETHERLANDS

AKHTAR, JOHANGIR AND JOHANGIR v. THE NETHERLANDS

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