Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14014/88

by Fadma EL BELHAJI

against the Netherlands

The European Commission of Human Rights sitting in private

on 15 July 1988, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 June 1988

by Fadma EL BELHAJI against the Netherlands and registered

on 11 July 1988 under file No. 14014/88;

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 facts as submitted by the applicant may be summarised as

follows:

The applicant is a Moroccan citizen born in 1956 in Ijarmauas,

Morocco. She is unemployed and at present residing in Amsterdam, the

Netherlands. Before the Commission she is represented by M.D. van

ALLER, a lawyer practising in Amsterdam.

The applicant is the third of nine children. Her father left

Morocco in 1965 and was granted a residence permit in the Netherlands

on 8 December 1978. He continued to support his family financially.

On 1 September 1982 the applicant's mother and the five

youngest children joined the father in the Netherlands. The applicant

was required to remain in Morocco to tend to her sick grandmother. She

was financially supported by her father.

In February 1985 the grandmother died. Apparently,

according to Moroccan law, the applicant was obliged to go and live

with her father, because he is still her legal guardian.

On approximately 3 October 1985 the applicant arrived in the

Netherlands. On 11 February 1986 she applied for a residence permit

for the purpose of living with her parents. This was denied on the

same day. A request for a revision was denied by the Deputy Minister

of Justice on 3 June 1986.

On 15 February 1988 the Council of State (Raad van State)

rejected her appeal. It considered that the applicant's ties with her

family in the Netherlands had been broken, so that she did not meet

the requirements under Dutch law for a residence permit. Her appeal

for a residence permit on humanitarian grounds, in which she stated

that, for both legal and religious reasons, she could not live alone

in Morocco, was rejected. The Council of State considered that, inter

alia, in view of her age and the fact that she had always lived in

Morocco, there was no reason to assume that she would not be able to

establish a reasonable, independent existence for herself in Morocco.

The applicant has been informed that she will have to leave

the Netherlands, but no expulsion decision has as yet been taken.

COMPLAINTS

The applicant complains that she is not capable of living on

her own in Morocco. The applicant has never been to school and has

never had a job. She has always been dependent on her father.

Furthermore, a woman living alone in Morocco is considered to be

immoral, and in rural communities a woman is not allowed in the

streets unaccompanied. She contends that by expelling her the

Netherlands will be condemning her to a miserable existence. She

invokes Article 3 (Art. 3) of the Convention in this regard.

Furthermore, the applicant complains that the Netherlands has

erroneously found that she is no longer a part of her father's

family. She contends that her expulsion violates her right to a

family life. She invokes Article 8 para. 1 (Art. 8-1) of the Convention in

this regard.

THE LAW

The applicant has complained that by expelling her to Morocco

the Netherlands will be condemning her to a miserable existence. By

forcing her to live as a single woman in Morocco, the Netherlands will

be treating her inhumanly in violation of Article 3 (Art. 3) of the Convention.

The Commisison first recalls that according to its established

case-law the right to asylum and the freedom from expulsion are not as

such included among the rights and freedoms mentioned in the

Convention but that the expulsion of a person may nevertheless, in

certain exceptional circumstances, raise an issue under the Convention

and in particular under Article 3 (Art. 3) where there are serious grounds to

fear that the person concerned would be subjected, in the State to

which he is to be sent, to treatment which is in violation of this

Article (see e.g. No. 1802/62, Dec. 26.3.63, Yearbook 6 pp. 462, 480;

No. 10308/83, Dec. 3.5.84, D.R. 36 pp. 209, 231; No. 10564/83, Dec.

10.12.84, D.R. 40 pp. 262, 265).

In the present case, however, the applicant is an adult woman

and her complaint is that she will have a difficult life on her own in

Morocco. She has not submitted that she can expect to receive any

sort of physical harm in Morocco.

In these circumstances, the Commission finds that the

envisaged expulsion to Morocco cannot raise an issue under Article 3

(Art. 3) of the Convention.

It follows that the applicant's complaint in respect of the

Netherlands regarding a violation of Article 3 (Art. 3) of the Convention must

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

(Art. 27-2) of the Convention.

Furthermore, the applicant has complained that her imminent

expulsion interferes with her right to respect for her family life.

She has invoked Article 8 (Art. 8) of the Convention. This article 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 interest 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 expulsion of a

person from a country in which his close relatives reside may raise an issue

under this provision of the Convention (cf. e.g. No. 7816/79, Dec. 19.5.77,

D.R. 9 p. 219 and No. 845/78, Dec. 6.5.81, D.R. 24 p. 98).

In such cases, the Commission first examines whether such a

degree of dependency exists between the applicant and her 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 applicant lived in Morocco with

her mother and younger brothers and sisters until September 1982.

Between 1982 and 1985 she tended to her grandmother at the behest of

her family. During this time she was supported by her father. Since

October 1985 she has again been living with her family, in the

Netherlands.

In these circumstances the Commission is satisfied that there

is family life between the applicant and her father, mother and

younger brothers and sisters, within the meaning of Article 8 para. 1

(Art. 8-1) of the Convention. Consequently, the applicant's intended expulsion

can be considered as an interference with her right to respect for family life.

The question which remains to be examined is whether this

interference was justified under the second paragraph of Article 8 (Art. 8) of

the Convention.

The Commission notes that the decision to refuse the applicant

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, within the meaning

of paragraph 2 of Article 8 (Art. 8) of the Convention (see Eur. Court H.R.,

Berrehab judgment of 21 June 1988, to be published in Series A no.

138, para. 26).

In the present case the applicant had lived in Morocco until

she was 29 years old. She had not lived with her father since 1965.

She was capable of taking care of her sick grandmother between 1982

and 1985, although she was supported by her father. She is at present

32 years old and has older brothers and/or sisters in Morocco.

A special feature of the present case is the applicant's

assertion that, for religious and cultural reasons, she will have

difficulty in living alone in Morocco. Despite this humanitarian

aspect of the case, the Commission considers that, in the

circumstances and in view of the applicant's age, respect for her

family life does not outweigh valid considerations relating to Dutch

immigration policy.

The Commission considers, therefore, that the interference

cannot be said to be disporportionate to the legitimate aim pursued

and is justified as necessary in a democratic society within the

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

It follows that the application must be rejected as being

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

the Convention.

For these reasons, the Commisison

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commisison President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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B. v. THE NETHERLANDS

B. v. THE NETHERLANDS

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