Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15723/89

by Mohamed ZARIOUHI and others

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 13 May 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

Mr. K. ROGGE, Secretary to the Second 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 9 October 1989 by

Mohamed ZARIOUHI and others against the Netherlands and registered on

31 October 1989 under file No. 15723/89;

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, Mohamed Zariouhi, is a naturalised Dutch

citizen, born in 1949 and is currently residing in Roermond, the

Netherlands. He is an unemployed mechanic. The other applicants,

Mohamed (born in 1967), Ibrahim (born in 1970), Hamid (born in 1972),

Benaïssa (born in 1974), Hakima (born in 1976), Aziz (born in 1980) and

Kamal (born in 1983) Zariouhi are his children from two previous

marriages. These children all have Moroccan citizenship and are all

currently residing in Zayo-nador, Morocco.

Before the Commission the applicants are represented by G. van

Buuren, a lawyer practising in Weert, the Netherlands.

The facts, as submitted by the applicants, may be summarised as

follows.

The first applicant came to the Netherlands in 1970. The first

applicant's children Mohamed, Ibrahim and Hamid were born out of the

first applicant's marriage with Fadila, whom he repudiated on 3

December 1973. Benaïssa, Hakima, Aziz and Kamal were born out of the

first applicant's marriage with Habiba, who died on 25 May 1983.

On 6 July 1983 the first applicant married Habiba's younger

sister Najima. Out of this marriage Hanan was born in 1984.

All the first applicant's children have been born in Morocco.

The second wife Habiba and her children Benaïssa, Hakima, Aziz and

Kamal, and since 1974 also the children of the applicant's first

marriage, Mohamed, Ibrahim and Hamid, lived with Habiba's parents in

Morocco. They have never resided in the Netherlands.

In the beginning of August 1986, the first applicant's wife

Najima and his children Hanan, Ibrahim, Hamid, Benaïssa, Hakima, Aziz

and Kamal came to the Netherlands on a Benelux tourist visa.

On 11 August 1986 their requests for a Dutch residence permit for

family reunification were rejected by the Head of the local police in

Roermond. Upon their requests for reconsideration to the Deputy

Minister of Justice, Najima and Hanan received a residence permit on

11 November 1986 on the basis of family reunification. The other

requests were rejected on the same day as they did not meet the

requirements for a residence permit for family reunification. It was

held that they formed in fact part of the family of the first

applicant's family-in-law and had never in fact belonged to the first

applicant's family with whom reunification was now sought. They

subsequently appealed to the Judicial Division of the Council of State.

The first applicant's oldest son Mohamed arrived in the

Netherlands on 14 April 1987 and requested a residence permit for

family reunification, which was refused by the Head of the local police

in Roermond on 23 April 1987. His request for reconsideration to the

Deputy Minister of Justice was rejected on 18 August 1987. He

subsequently appealed to the Judicial Division of the Council of State.

By decisions of 10 April 1989 the Judicial Division rejected all

above-mentioned appeals. It was held, inter alia, that in all cases

it was in fact the first applicant's mother-in-law and not his present

wife who had raised the first applicant's children, that the first

applicant had not given any indication as to how he had been involved

in raising the children from his previous marriages, that these

children had always lived in Morocco and that the first applicant's

mother-in-law objected to the first applicant's decision to have his

children come over to the Netherlands and that they had in fact

belonged to the mother-in-law's family and not to the family of the

first applicant's present wife. The Judicial Division concluded that

although Article 8 of the Convention applied, the restrictive Dutch

policy concerning immigration outweighed the applicants' interests,

within the meaning of Article 8 para. 2 of the Convention, the

immigration policy serving the interest of the economic well-being of

the country.

COMPLAINTS

The applicants complain that the decisions of the Judicial

Division of 10 April 1989, determining their civil right to respect for

family life, violated their rights under Article 6 para. 1 of the

Convention.

The applicants further complain under Article 8 of the Convention

that their right to respect for their family life has unjustly been

interfered with and also that in this respect the Netherlands

authorities' decision to grant Hanan a residence permit constitutes

discrimination on the ground of birth within the meaning of Article 14

of the Convention in respect of the first applicant's other children

as the Dutch immigration policy distinguishes between children born out

of successive marriages.

THE LAW

1. The applicants complain that the decisions by the Judicial

Division of 10 April 1989, rejecting the appeals against the Deputy

Minister's decision not to grant the first applicant's children a

residence permit, violated their rights under Article 6 para. 1

(Art. 6-1) of the Convention. They submit that these proceedings

determined their civil right to respect for their family life.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The Commission, however, recalls that a decision as to whether

an alien should be allowed to stay in a country does not as such

involve the determination of civil rights within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention (cf. No. 12122/86, Dec.

16.10.86, D.R. 50 p. 268).

Article 6 para. 1 (Art. 6-1) does accordingly not apply to the

case and this complaint must therefore be rejected as incompatible

ratione materiae with the Convention within the meaning of Article 27

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

2. The applicants also complain that their right to respect for

their family life has unjustly been interfered with and invoke Article

8 (Art. 8) of the Convention, which provides, insofar as relevant:

"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 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 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.

for example, No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219 and No. 8245/78,

Dec. 6.5.81, D.R. 24 p. 98).

In such cases, the Commission first examines whether such a

degree of dependency exists between an applicant and his relatives as

to give rise to the protection envisaged by Article 8 (Art. 8) of the

Convention (cf. Nos. 9214/80, 9473/81, 9474/81, Dec. 11.5.82, D.R. 29

p. 176).

The Commission notes that the first applicant's children

concerned were all born in Morocco, where they have always lived. The

Commission also notes that the first applicant's children, Mohamed,

Ibahim and Hamid as from 1974, and the other children as from birth,

have lived with the first applicant's parents-in-law and were raised

by the latter, whereas the first applicant has not substantiated how

he was involved in raising his children.

However, the Commission need not examine whether such a degree

of dependency exists in the present case, as, even assuming there is

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

between the applicants, the Commission notes that the decision to

refuse the applicants a residence permit was taken on the basis of

Dutch immigration policy which lays down special conditions for the

granting of residence permits on the grounds of family reunification.

The Commission notes that the Dutch immigration policy

establishes these special conditions for the purpose of regulating the

labour market, and generally to restrict immigration into a densely

populated country. Thus, the legitimate aim pursued is the

preservation of the country's economic well-being, withing the meaning

of paragraph 2 of Article 8 (Art. 8) of the Convention (cf. Eur. Court

H.R., Berrehab judgment of 21 June 1988, Series A no. 138, para. 26).

Regarding the necessity of the interference in a democratic

society the Commission recalls that attention must be paid to the

proportionality between the seriousness of the interference and the

legitimate aim pursued (cf. Berrehab judgment, loc. cit., para. 29).

As pointed out above, the first applicant's children concerned

have always lived in Morocco. At the time of the introduction of the

present application they were between 22 and 6 years old.

A special feature of the present case is the consideration by the

Judicial Division in its decisions of 10 April 1989, that the first

applicant's mother-in-law had objected to the first applicant's

decision to have his children come over to the Netherlands, which

consideration the applicant does not dispute.

In these circumstances, the Commission considers that respect for

the applicants' family life does not outweigh valid considerations

relating to Dutch immigration policy.

The Commission considers, therefore, that the refusal to grant

a residence permit to the first applicant's children concerned cannot

be said to be disproportionate to the legitimate aim pursued and can

be regarded as necessary in a democratic society within the meaning of

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

It follows that this part of the application must be rejected as

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

(Art. 27-2) of the Convention.

3. The first applicant's children concerned also complain that they

have been discriminated against on the ground of birth as a result of

the Dutch policy to distinguish between children born out of successive

marriages. They invoke Article 14 of the Convention in conjunction

with Article 8 (Art. 14+8) of the Convention.

Article 14 (Art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

The Commission accepts that, as a general principle, it is a

legitimate interest and attribute of State sovereignty to control the

entry of immigrants and, if necessary, to limit the number of entrants,

priority being given to the close family unit. When considering

immigration on the basis of family ties, it is not contrary to the

Convention that a Contracting State examines the existence of family

ties on the basis of the factual situation at issue.

The Commission notes that the Dutch authorities have adopted a

policy, according to which an alien, who resides in the Netherlands,

is allowed to bring his spouse and the children born out of that

relationship to the Netherlands.

The Commission admits that this rule can create a difference of

treatment on the ground of birth if an alien has children born out of

a previous marriage, who do not belong to the close family unit. It

recalls however that, for the purpose of Article 14 (Art. 14), a

difference of treatment is only discriminatory if it "has no objective

and reasonable justification", that is, if it does not pursue a

"legitimate aim" or if there is not a "reasonable relationship of

proportionality between the means employed and the aim sought to be

realised" (see, inter alia, Eur. Court H.R., Darby judgment of 23

October 1990, Series A no. 187, p. 12, para. 31).

In respect of the present case, the Commission has already noted

that the decision not to grant a residence permit to the first

applicant's children concerned cannot be considered to be

disproportionate to the legitimate aim pursued. It further notes that

the difference in treatment between Hanan and the first applicant's

other children follows from the difference in legal status between the

first applicant's third wife, who is entitled to reside in the

Netherlands, and his former wives, who were not.

The Commission therefore concludes that the present complaint

does not disclose any appearance of discrimination on the ground of

birth contrary to Article 14 of the Convention in conjunction with

Article 8 (Art. 14+8).

It follows that also the application in this respect is

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 Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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ZARIOUHI AND OTHERS v. THE NETHERLANDS

ZARIOUHI AND OTHERS v. THE NETHERLANDS

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