Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13318/87

by K. and A.

against the Netherlands

The European Commission of Human Rights sitting in private

on 14 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. J. RAYMOND, 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 31 August 1987

by K. and A.against the Netherlands and registered on 13 October 1987

under file No. 13318/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a Pakistani citizen born in 1943 in

Tandoj, Pakistan. His present address is unknown to the Commission.

The second applicant, the first applicant's wife, is a Dutch citizen,

born in 1944 in Ghazi, Pakistan. She is presently residing in

Amsterdam. In the proceedings before the Commission the applicants

are represented by Mr. W.J. van Bennekom, a lawyer practising in

Amsterdam.

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

follows:

On 6 July 1974 the first applicant entered the Netherlands.

Under the so-called "Regularisation order" (regularisatieregeling) for

illegal migrant workers, he was granted a residence permit (vergunning

tot verblijf) at the end of 1975 or the beginning of 1976.

The second applicant, with her six children, entered the

Netherlands in the beginning of 1979. On 5 June 1979 she was granted

a residence permit.

On 2 March 1981 the first applicant was granted a permanent

residence permit (vergunning tot vestiging).

On 7 November 1981 the first applicant's cousin was killed in

Amsterdam.

By judgment of 24 February 1983 the Court of Appeal

(Gerechtshof) of Amsterdam convicted the first applicant of complicity

to kidnapping, and of being an accessory to arson and the murder of

his cousin and sentenced him to seven years and six months'

imprisonment. The first applicant has always denied the charge.

By decision of 18 December 1984 the Deputy Minister

(Staatssecretaris) of Justice withdrew the first applicant's permanent

residence permit, in accordance with Section 14 para. 1 (c) of the

Aliens Act (Vreemdelingenwet). By the same decision, the Deputy

Minister declared the first applicant an undesirable alien (ongewenste

vreemdeling), in accordance with Section 21 para. 1 (b) and (c) of the

Aliens Act.

On 1 April 1985 the first applicant requested the Deputy

Minister to revise her decision. By decision of 26 June 1985

the Deputy Minister rejected the request.

On 22 July 1985 the first applicant appealed to the Judicial

Division of the Council of State (Afdeling Rechtspraak van de Raad van

State). Since this appeal had no suspensive effect, he instituted

summary proceedings (kort geding) with the President of the Regional

Court (Arrondissementsrechtbank) of Amsterdam, requesting a

prohibition to deport him from the Netherlands until the Council of

State had decided on his appeal. By judgment of 11 December 1986 the

President of the Regional Court granted the request. On 24 December

1986 the State of the Netherlands appealed against this judgment to

the Court of Appeal (Gerechtshof) of Amsterdam. By judgment of

9 April 1987 the Court of Appeal quashed the judgment of the President

of the Regional Court.

By decision of 23 September 1986 the second applicant and her

under-age children were naturalized Dutch citizens.

In November 1986 the first applicant was conditionally

released from prison.

By judgment of 30 June 1987 the Judicial Division of the

Council of State rejected the first applicant's appeal against the

Deputy Minister's decision of 26 June 1985. It held, inter alia, that

no objective obstacles existed for the first applicant's family to

return to Pakistan and that, therefore, no interference in the first

applicant's family life was involved. Even assuming that there was an

interference in the first applicant's family life, this interference

was, according to the Judicial Division, justified under Article 8

para. 2 of the Convention for the prevention of disorder.

It appears that the first applicant has been in hiding since

9 April 1987 in order to prevent his deportation from the Netherlands.

COMPLAINTS

The applicants complain that the withdrawal of the first

applicant's permanent residence permit and the decision to declare him

an undesirable alien amount to a lack of respect for their family life

within the meaning of Article 8 para. 1 of the Convention without this

being justified under Article 8 para. 2 of the Convention.

THE LAW

The applicants have complained that the withdrawal of the

first applicant's permanent residence permit and the decision to

declare him an undesirable alien amount to an interference with their

right to respect for their family life. They have invoked Article 8

of the Convention.

The Commission recalls that according to its established

case-law the Convention does not guarantee, as such, any right for an

alien to enter or reside in a specific country (cf., for example, No.

4403/70, Dec. 10.10.70, Collection 36 p. 92; No. 5269/74, Dec. 8.2.72,

Collection 39 p. 104) or not to be expelled from a particular country

(cf., for example, no. 4314/69, Dec. 2.2.70, Collection 32 p. 96).

However, the Commission has also stated that expulsion from a country

in which close members of the family of the person concerned are

living may be contrary to Article 8 (Art. 8) of the Convention (cf., for

example, No. 6357/73, Dec. 8.10.74, D.R. 1 p. 77; No. 7816/77, Dec.

19.5.77, D.R. 9 p. 219).

In the present case the Commission is of the opinion that the

first applicant's expulsion from the Netherlands would constitute an

interference with the applicants' right to respect for their family

life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.

The Commission recalls, however, that under Article 8 para. 2

(Art. 8-2) of the Convention there may be an interference by a public

authority with the exercise of the right to respect for family life,

if such interference is in accordance with the law and is necessary in

a democratic society for the prevention of disorder and crime, for the

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

and freedoms of others.

The withdrawal of the first applicant's permanent residence

permit was decided in accordance with Section 14 para. 1 (c) of the

Aliens Act. The decision to declare the first applicant an

undesirable alien was taken in accordance with Section 21 para. 1 (b)

and (c) of the Aliens Act. The Commission notes that it would involve

considerable hardship for the second applicant and her children, if

they were to follow the first applicant to Pakistan.

However, given the nature and the seriousness of the crime for

which the first applicant was convicted, the Commission is satisfied

that the interference complained of was justified as a measure

necessary in a democratic society for the prevention of disorder and

crime.

It follows that the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For this reason, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (S. TRECHSEL)

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K., A. v. NETHERLANDS

K., A. v. NETHERLANDS

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