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AS TO THE ADMISSIBILITY OF

Application No. 12139/86

by M. and O.M.

against the Netherlands

The European Commission of Human Rights sitting in private

on 5 October 1987 the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

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 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 April 1986

by M. and O.M. against the Netherlands and registered

on 5 May 1986 under file N° 12139/86;

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

summarised as follows:

The first applicant is a Moroccan citizen, born in 1961 and

at present residing in Amsterdam. The second applicant is his father,

a Moroccan citizen, born in 1939 and living in Amsterdam. The first

applicant owns a coffee shop, the second applicant is a worker. They

state that the latter helps his son occasionally with his coffee shop.

They are represented by Mr. P. Boeles, a lawyer practising in

Amsterdam.

It appears that the first applicant entered the Netherlands on

15 March 1980 to live with his father, the second applicant, and the

latter's second wife. It seems that the second applicant has lived

lawfully in the Netherlands since 1966. The first applicant's mother,

the second applicant's first wife, stayed in Morocco. She and the

second applicant were divorced on 1 July 1981, after which the second

applicant, on 31 August 1981, was appointed the first applicant's

guardian. The first and second applicants have not lived together

since 1985.

It follows from Dutch practice in immigration matters that

in cases of polygamous marriages, only one wife and her children under

21 years of age can, as a rule, be granted a residence permit.

On 12 February 1981 the Head of Police of Amsterdam refused to

grant the first applicant a residence permit because he was the son of

the wife living in Morocco.

On 18 February 1981 the applicants appealed against this

decision to the Deputy Minister of Justice (Staatssecretaris van

Justitie).

Since no decision was taken within three months, the appeal

was presumed to have been rejected by virtue of Section 34 para. 2

of the Dutch Aliens Act (Vreemdelingenwet).

On 19 May 1981 the applicants appealed against this

presumed decision to the Council of State's Division for Jurisdiction

(Afdeling Rechtspraak van de Raad van State).

On 31 October 1985 the Council of State's Division for

Jurisdiction concluded, inter alia, that there were no compelling

reasons of a humanitarian nature militating against a refusal.

As regards Article 8 para. 1 of the Convention, the Council

of State concluded that, even assuming that the applicants had a

"family life" within the meaning of Article 8 para. 1 at the time

of the decision concerned, an interference with family life was

justified on one or more of the grounds included in Article 8 para. 2,

such as "the prevention of disorder".

The Council of State therefore dismissed the applicants' appeal.

COMPLAINTS

The applicants allege a violation of Article 8 of the

Convention. They complain that the first applicant's expulsion to

Morocco constitutes an unjustified interference with their right to

respect for family life, since he can now no longer stay with his

father, the second applicant.

Furthermore, the applicants allege that the Dutch policy

concerning polygamous marriages constitutes discrimination on the

ground of birth because, as a rule, it grants a residence permit to

one wife only and to the children born out of that relationship (Dutch

Aliens Circular (Vreemdelingencirculaire) G-4-16, No. 6).

Therefore this policy constitutes a violation of Article 14 of

the Convention in connection with Article 8.

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 provides, inter alia:

"Everyone has the right to respect for his private and

family life, his home and his correspondence."

The Commission first refers to its constant case-law according

to which 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 (e.g. No. 7816/79, Dec. 19.5.1977, D.R. 9, p. 219;

No. 8245/78, Dec. 6.5.1981, D.R. 24, p. 98).

In cases where grown-up children wish to take up residence

with their parents the Commission examines the Article 8 (Art. 8) issue in the

light of the child's age, his or her factual living together with the

parents in the past and any financial or other dependency between

parents and child (No. 9492/81, Dec. 14.7.1982, D.R. 30, P. 232;

No. 10557/83, Dec. 5.7.1984, Chandarana v. United Kingdom, not

published).

As regards the facts of the present case the Commission notes

that the first applicant is 26 years of age and did not live with his

father from 1966 until 1980. Furthermore, it does not appear that

there is a financial or other dependency between the applicants, since

they have independent incomes and have not lived together since 1985.

The fact that the second applicant helps his son occasionally with the

latter's coffee shop does not in itself indicate any form of

dependency.

Accordingly the Commission concludes that in this case no family life

within the meaning of Article 8 (Art. 8) of the Convention exists, and that

therefore the applicants' complaint under this provision is manifestly

ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.

2. The first applicant also complains that he has been

discriminated against on ground of birth by the Dutch policy of

distinguishing between children born out of different marriages. He invokes

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 ordre public. This does not mean, however, that there is no

right to respect for the family life of a father and his children born

by different wives in a polygamous marriage.

The Commission notes that the Dutch authorities have adopted a

policy, according to which the husband, who resides in the

Netherlands, is only allowed to bring with him one of his wives,

according to his own choice, and the children of that wife. Although

this rule could give rise to some problems in relation to minor

children born by another wife, there is no such problem in the present

case, when the child in question is 26 years old. Since there is no

interference with the first applicant's right to respect for his

family life, the Commission considers that the complaint of

discrimination in respect of that right is also manifestly ill-founded

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

For these reasons, the Commission

&SDECLARES THE APPLICATION INADMISSIBLE&_

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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M. AND O.M. v. THE NETHERLANDS

M. AND O.M. v. THE NETHERLANDS

LEXI