Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14501/89

by E.A.

and A.A.

against the Netherlands

The European Commission of Human Rights sitting in private on 6

January 1992, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

SirBasil HALL

Mr.F. MARTINEZ RUIZ

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, 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 5 October 1988 by

E.A. and A.A. against the Netherlands and registered on 5 January 1989

under file No. 14501/89;

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 is a Moroccan national, born in 1947 in Bab

Berret. He presently resides in P., the Netherlands. The second

applicant is his elder son, born in 1974. He is at present residing

with his father in P.. Before the Commission, they are represented by

Mr. A. van Driel, a lawyer practising in Alkmaar.

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

summarised as follows.

The first applicant, the father, first entered the Netherlands

in 1979. On 13 June 1982, he contracted a second marriage (bigamous)

with a Moroccan woman having a permanent residence permit (vergunning

tot vestiging) in the Netherlands. He was then authorised to stay in

the country on the ground of a family reunification with his second

wife. On 18 November 1987, he was granted a permanent residence

permit.

His first wife stayed in Morocco with her children, i.e. the

second applicant, his brother and four sisters. The first applicant

visited his family in Morocco almost each year during six weeks and

provided for their maintenance, as he did for his second family in the

Netherlands. He also had regular contacts by telephone with the second

applicant.

On 23 August 1987, the second applicant entered the Netherlands

to live with his father and the latter's second wife. This decision was

partly taken in order to ensure him a medical treatment in the

Netherlands, following an accident he had in Morocco, but was

principally motivated by the increasing problems met by his mother in

raising him satisfactorily.

On 4 September 1987, the first applicant requested a residence

permit for his son, acting as his legal representative.

The Head of police of P. rejected his request on 23 December

1987, as the second applicant did not meet the requirements for

entrance in the Netherlands. On 28 January 1988, the first applicant

appealed to the Deputy Minister of Justice (Staatssecretaris van

Justitie) against that decision. The Deputy Minister, following the

advice of the Advisory Committee for Aliens Affairs (Adviescommissie

voor vreemdelingenzaken), rejected the appeal on 26 April 1988. The

decision was taken, inter alia, on the ground of the policy followed

concerning family reunification for bigamous aliens, which is to

authorise it for only one spouse and children born out of their

relationship. The decision stated that, as polygamy is contrary to the

Dutch public order, even assuming that there was an interference with

the applicants' right to respect for family life, it was justified

under Article 8 para. 2 of the Convention.

The applicants then initiated proceedings before the civil

courts, requesting that the second applicant's expulsion be prohibited

as being contrary to the provisions of Article 8 of the Convention.

The first applicant requested the Regional Court

(Arrondissementsrechtbank) of The Hague to give a declaratory judgment

(verklaring voor recht) arguing that the intended expulsion of the

second applicant by the Dutch authorities was in violation of Articles

8 and 14 of the Convention and therefore unlawful.

He simultaneously demanded in summary proceedings (kort geding)

before the President of the Regional Court of Alkmaar that the

expulsion of the second applicant be prohibited, as long as the

Regional Court of The Hague had not yet decided on his case.

The President of the Regional Court of Alkmaar rejected on 14

July 1988 the demand to prohibit the expulsion, considering that

despite the existence of the applicants' family life, interference in

this case was justified under Article 8 para. 2 of the Convention. In

balancing all interests, the President also attached importance to the

interests of the State in maintaining a restrictive immigration policy

(restrictief toelatingsbeleid), particularly having regard to the

density of the population and the issue of housing and social care

(education).

On 18 July 1988, the first applicant appealed against the

President's decision. The Court of Appeal (Gerechtshof) of Amsterdam

rejected this appeal in summary proceedings on 22 June 1989.

In the procedure on the merits, the Regional Court of The Hague

refused the declaratory judgment on 26 April 1989. The Court followed

the reasoning of the President of the Regional Court of Alkmaar in the

summary proceedings, as regards Article 8. The allegations under

Article 14 were also rejected.

In spite of the above decisions, the second applicant remained

in the Netherlands.

COMPLAINTS

1. The applicants complain that by refusing the second applicant a

residence permit, their right to respect for family life set forth in

Article 8 of the Convention has been violated. They allege that the

interests of the state cannot justify this interference with their

family life.

2. They further complain of discrimination against the children of

the first applicant's first wife, who are not allowed to enter the

Netherlands unlike the children of the first applicant's second wife

who are entitled to live in the Netherlands. They invoke Article 14

read in conjunction with Article 8 of the Convention.

THE LAW

1. The applicants have complained of an unjustified interference

with their right to respect for family life. They invoke Article 8

(Art. 8) of the Convention which reads 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 Commission first refers to its constant case-law according

to which the Convention does not, as such, guarantee a right to enter

or reside in a particular country nor a right not to be expelled from

a particular country (No. 9203/80, Dec. 5.5.81 D.R. 24, p. 239).

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 (e.g. Moustaquim v. Belgium, Comm.

Report 12.10.89, para. 50).

In the present case the Commission notes that although the second

applicant did not live with his father from 1979 to 1987, he had

frequent contacts with him as the first applicant used to visit his

first wife and children in Morocco almost each year during six weeks

and provided for their maintenance. He also had regular contacts by

telephone with the second applicant. The Commission finds that in

these circumstances the ties between the applicants are covered by the

concept of family life of Article 8 (Art. 8). It follows that the

refusal to grant the second applicant a residence permit to live with

his father and the latter's second wife constitutes an interference

with the applicants' right to respect for family life.

The question arises whether this interference was justified under

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

The Dutch authorities' refusal to grant the second applicant a

residence permit is based on the Aliens Act (Vreemdelingenwet). The

Commission also notes in this respect that polygamous marriages are in

conflict with Dutch law. It therefore finds that the interference

complained of was "in accordance with the law".

The Commission further observes that the policy followed by the

Dutch authorities in such cases is clearly related to the economic

well-being of the country, in particular to the authorities' concern,

because of the population density, to regulate the labour market (Eur.

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

26).

In assessing whether this interference was necessary in a

democratic society, the Commission recalls that the Contracting States

have a certain margin of appreciation in the field of immigration

policy (ibid. para. 28). However, the Commission must examine the

interference complained of, and it must do this not solely from the

point of view of immigration and residence, but also with regard to the

applicants' mutual interest in continuing their relations (ibid, para.

29). In balancing the different interests involved, the Commission

attaches importance on the one hand to the fact that the second

applicant is also a member of the family of his mother who continuously

lived in Morocco and on the other hand to the reasons for the decision

of the Dutch authorities. On balance it finds, having regard to the

second paragraph of Article 8 (Art. 8), that there are insufficient

elements concerning respect for family life which could outweigh the

considerations relating to the proper enforcement of immigration

controls. In this respect the Commission would emphasise the close

connection between the policy of immigration and consideration of

public order (No. 12122/86, Dec. 16.10.86, D.R. 50, p. 268, p. 272).

The Commission is therefore of the opinion that the interference with

the applicants' right to respect for family life is in accordance with

the law and justified as being necessary in a democratic society for

the economic well-being of the country under the second paragraph of

Article 8 (Art. 8), as a legitimate measure of immigration control.

Accordingly, 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.

2. The applicants also complain that the second applicant has been

discriminated against on the ground of birth as a result of the Dutch

policy of distinguishing between children born out of successive

marriages. They invoke Article 14 (Art. 14) of the Convention read in

conjunction with Article 8 (Art. 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, a Contracting State cannot be

required under the Convention to give full recognition to polygamous

marriages which are in conflict with their own legal order.

The Commission notes that the Dutch authorities have adopted a

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

is only allowed to bring with him one of his spouses, according to his

own choice, and the children born out of that relationship.

The Commission admits that this rule does create a difference of

treatment on the ground of birth. It recalls however that, for the

purpose of Article 14 (Art. 14), a difference of treatment is

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 policy in question pursued a legitimate aim. It further notes

that the difference of treatment follows from the second applicant's

legal status in that his mother, unlike his father's second wife, is

not entitled to reside in the Netherlands and in fact lives in Morocco

with his brother and four sisters. In these circumstances, the

Commission finds that the difference of treatment has an objective and

reasonable justification.

The Commission therefore concludes that the present application

does not disclose any appearance of discrimination on the ground of

birth contrary to Article 14 (Art. 14) of the Convention in conjunction

with Article 8 (Art. 8).

It follows that the application in this respect is also

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)

Menu

E.A. AND A.A. v. THE NETHERLANDS

E.A. AND A.A. v. THE NETHERLANDS

LEXI