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DALDAL-USLU v. THE NETHERLANDS

Doc ref: 17546/90 • ECHR ID: 001-1428

Document date: December 7, 1992

Inbound citations: 0
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Cited paragraphs: 0
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Outbound citations: 3

DALDAL-USLU v. THE NETHERLANDS

Doc ref: 17546/90 • ECHR ID: 001-1428

Document date: December 7, 1992

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 17546/90

by Dudu DALDAL-USLU

against the Netherlands

The European Commission of Human Rights sitting in private on

7 December 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

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

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 10 December 1990

by Dudu DALDAL-USLU against the Netherlands and registered on 10

December 1990 under file No. 17546/90;

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 Turkish national, born in 1930 and currently

residing in Amsterdam, the Netherlands. Before the Commission, she is

represented by Mrs. R. Niemer, a lawyer practising in Amsterdam.

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

follows.

The applicant lived with her husband in the Netherlands from 1974

until August 1982, holding a Dutch residence permit. In August 1982

she and her husband returned to Turkey as her husband was ill. After

the death of her husband in January 1987, the applicant returned to the

Netherlands on 7 December 1987. She receives a monthly pension of

1.432,35 Dutch guilders net from a Dutch pension fund.

The applicant has four adult children. Three sons reside in the

Netherlands and one daughter lives with her husband and two children

in Turkey. The applicant lives with two of her sons in Amsterdam, upon

whom she claims to be mentally and physically dependent in view of her

alleged poor state of health.

On 27 January 1989, the applicant applied for a residence permit.

This request was rejected on 11 April 1990 by the Head of the Municipal

Police of Amsterdam, as the applicant did not meet the requirements for

a residence permit either on the basis of family reunification or on

humanitarian grounds. Moreover, there was nothing to show that the

applicant could not live in Turkey without the actual support of

others. On 23 April 1990, the applicant requested the Deputy Minister

of Justice to reconsider the decision of 11 April 1990.

On 1 November 1990, the President of the Regional Court

(Arrondisementsrechtbank) of The Hague, in summary proceedings,

rejected the applicant's request for an injunction in respect of her

expulsion from the Netherlands. The President considered that the

applicant, when she was in Turkey, did not form part of her sons'

family. The President added that, even assuming there is family life

between the applicant and her sons, the interference complained of is

justified as the interests of the Netherlands in maintaining a

restrictive immigration policy outweighs the applicant's personal

interests.

On 18 December 1990, the Deputy Minister of Justice rejected the

applicant's request to reconsider the decision of 11 April 1990.

On 13 July 1992, the Judicial Division of the Council of State

(Afdeling Rechtspraak van de Raad van State) rejected the applicant's

appeal against the decision of 18 December 1990. The Judicial Division

held that there was no interference with the applicant's family life.

In respect of the applicant's health problems, the Judicial Division

considered that the applicant needs some medical assistance, but that

a possible medical treatment could also take place in Turkey.

COMPLAINT

The applicant claims that she belongs to the family of her two

sons with whom she lives and upon whom she is dependent. She complains

that the refusal to grant her a residence permit in the Netherlands

constitutes a violation of her right to respect for family life as

guaranteed by Article 8 of the Convention, and so would her expulsion

to Turkey.

THE LAW

The applicant complains that the refusal by the Netherlands

authorities to grant her a residence permit constitutes an unjustified

interference with her right to respect for family life as guaranteed

by Article 8 (Art. 8) of the Convention, and so would her expulsion to

Turkey. Article 8 para. 1 (Art. 8-1) of the Convention, insofar as

relevant, reads as follows:

"1. Everyone has the right to respect for his [...]

family life [...]"

The Commission first recalls that, while it is clear that no

right of an alien to enter or to reside in a particular country, nor

a right not to be expelled from a particular country is as such

guaranteed by the Convention (cf. No. 9203/80, Dec. 5.5.81, D.R. 24 p.

239), it has also repeatedly stated that, in view of the protection of

the right to respect for family life afforded by Article 8 (Art. 8) of

the Convention, the expulsion of a person from a country in which his

immediate family is resident may give rise to issues under this

provision of the Convention (cf. No. 9478/81, Dec. 8.12.81, D.R. 27

p. 243).

The question of the existence or non-existence of family life is

essentially a question of fact, depending upon the real existence in

practice of close personal ties. Relationships between adults do not

necessarily attract 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).

In the present case the Commission notes that the applicant has

substantial links with Turkey, where she has lived most of her life,

where her daughter resides and where she returned in 1982 when her

husband fell ill. It was only five years later, after his death, that

she returned to the Netherlands in order to reside with her two sons

in Amsterdam. The Commission further notes that the applicant receives

a monthly pension of 1.432,35 Dutch guilders net from a Dutch pension

fund. The Commission does not find that the applicant's claim to be

mentally and physically dependent on her sons has been sufficiently

substantiated to attract the protection of Article 8 (Art. 8) of the

Convention.

The Commission, therefore, concludes that the decision by the

Netherlands authorities not to grant the applicant the right to take

up residence in the Netherlands does not amount to lack of respect for

the applicant's family life within the meaning of Article 8 (Art. 8)

of the Convention. It follows that the application must be rejected

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

(Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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