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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 29

June 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

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 RUIZ

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 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 applicant, 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.

Mr. Akhtar's first wife, 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 Mr. Akhtar's father, Mr. Akhtar's

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

In 1979, Mr. Akhtar 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 Mr. Akhtar 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 Mr. Akhtar does not live with his second wife anymore.

She started divorce proceedings in the course of 1990.

As from 1979, Mr. Akhtar's children stayed with his brother. Mr.

Akhtar supported his children financially insofar as his financial

means allowed and maintained regular contacts by correspondence,

telephone and annual visits.

On 22 November 1985 Mr. Akhtar 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 Mr. Akhtar 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 Mr. Akhtar 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 Mr. Akhtar'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 Mr. Akhtar and his three

children existed anymore, as they had been taken into the family of Mr.

Akhtar's brother on a permanent basis, whereas Mr. Akhtar 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 Mr. Akhtar 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.

COMPLAINTS

1. The applicants complain under Article 8 of the Convention that,

by refusing the second and third applicant access to the Netherlands,

the Netherlands authorities have prevented a family reunification of

the first applicant with his children. The applicants are of the

opinion that the concept of family life has been interpreted too

narrowly by the respondent State.

2. The applicants complain under Article 12 of the Convention that

the Netherlands authorities have attached unjustified consequences to

the marriage of the first applicant with a Dutch woman, as because of

this marriage he is apparently forced to abandon his family life with

his children born out of his first marriage. The applicants are of the

opinion that thus the right to marry and to found a family has been

violated.

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 LAW

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

Convention that, by refusing the second and the third applicants access

to the Netherlands, the Netherlands authorities have prevented a family

reunification of the first applicant with his children. The applicants

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

too narrowly by the respondent State.

Article 8 (Art. 8) of the Convention provides as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

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 national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Government are of the opinion that there has been no

interference with the applicants' family life, as the family life

between Mr. Akhtar, as legal and biological father, and his children

ceased to exist as a result of events after Mr. Akhtar's departure from

Pakistan.

The Government submit that A. and S. Johangir never formed part

of the new family Mr. Akhtar formed in the Netherlands through his

second marriage, that it is not established how Mr. Akhtar concerned

himself with the upbringing of A. and S. Johangir before 1985, that A.

and S. Johangir were permanently integrated in the family of Mr.

Akhtar's brother in Pakistan and that at the time of the first

application for temporary stay A. Johangir was 18 and S. Johangir 11

years old. Insofar as the applicants' family life could be considered

as being interfered with, the respondent Government are of the opinion

that this was necessary in a democratic society in the interests of the

economic well-being of the country.

The applicants are of the opinion that their family life never

ceased to exist as Mr. Akhtar remained responsible for the care and

upbringing of his own children. They submit that apart from the legal

bond between Mr. Akhtar and his children, Mr. Akhtar insofar as

possible provided his brother with sufficient money to maintain his

children, that he visits them annually and that he has regular contacts

with them by telephone and correspondence. The applicants submit

furthermore that the respondent Government erroneously consider that

a person can only have one family life within the meaning of Article

8 (Art. 8) of the Convention at any given moment in time.

The Commission first recalls that, according to its case-law, the

Convention does not, as such, guarantee an alien either a right to

enter or to 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. 11278/84, Dec. 1.7.85, D.R.

43 p. 216).

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. The Court has held in the Berrehab

case that the bond which exists between a child and his parents amounts

to family life, whereas cohabitation of parents with their minor

children is no indispensable element for the existence of family life

between them. The Court, however, also considered that subsequent

events may break that tie (cf. Eur. Court H.R., judgment of 24 June

1988, Series A no. 138, para. 21).

The Commission notes that the parties do not dispute the fact

that Mr. Akhtar is the legal and biological father of A. and S.

Johangir, that the latter two applicants have always lived in Pakistan,

until 1979 with Mr. Akhtar and as from 1979 with Mr. Akhtar's brother,

that at the time the request for authorisation for temporary

submitted in 1985 A. Johangir was 18 and S. Johangir was 11 years old,

and that during the years of Mr. Akhtar's residence in the Netherlands,

he transferred money to his brother on at least two occasions.

Concerning the right to respect for the family life of Mr. Akhtar

and A. Johangir, the Commission recalls that relationships between

adults - a father and his 18 year old son in the present case - 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, at 198), which elements have not been

established in the present case. The Commission therefore concludes

that the decision by the Netherlands authorities not to grant the

second applicant access to the Netherlands does not amount to a lack

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

the Convention.

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

Convention in respect of the second applicant, A. Johangir, is

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

(Art. 27-2) of the Convention.

The Commission is however satisfied that there is family life

between Mr. Akhtar and S. Johangir, which has been interfered with by

reason of the authorities' refusal to allow this son to join his father

in the Netherlands.

The Commission considers that the question whether the

interference complained of was "necessary in a democratic society"

within the meaning of Article 8 para. 2 (Art. 8-2) cannot be resolved

at this stage of the proceedings and requires an examination of the

merits.

It follows that in respect of Mr. Akhtar and S. Johangir, the

complaint under Article 8 (Art. 8) of the Convention cannot be rejected

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

(Art. 27-2) of the Convention and no other ground for inadmissibility

has been established.

2. The applicants complain under Article 12 (Art. 12) of the

Convention that the Netherlands authorities have attached unjustified

consequences to he marriage of the first applicant with a Dutch woman,

as because of this marriage he is apparently forced to abandon his

family life with his children born out of his first marriage.

Article 12 (Art. 12) of the Convention provides as follows:

"Men and women of marriageable age have the right to marry

and to found a family, according to the national laws

governing the exercise of this right."

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

The mere fact that the applicants have submitted their case to

the various competent authorities does not of itself constitute

compliance with this rule. It is also required that the substance of

any complaint made before the Commission should have been raised during

the proceedings concerned. In this respect the Commission refers to

its established case-law (cf. No. 10307/83, Dec. 6.3.84, D.R. 37, pp.

113, 120; No. 11244/84, Dec. 2.3.87, D.R. 55, pp. 98, 104).

In the present case the applicants did not raise, either in form

or in substance, in the proceedings before the Judicial Division of the

Council of State the complaint they now make before the Commission.

Moreover, an examination of the case as it has been submitted does not

disclose the existence of any special circumstances which might have

absolved the applicants, according to the generally recognised rules

of international law, from raising this complaint in the proceedings

referred to.

It follows that the applicants have not complied with the

condition as to the exhaustion of domestic remedies and accordingly

this part of the application must be rejected under Article 27 para.

3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously

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;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. Krüger) (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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