Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12411/86

by M.M.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private on

4 March 1987, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

F. MARTINEZ

Mr. H.C. KRÜGER, Secretary to the Commission

assisted by Mrs. C. WESTERDIEK

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 September 1986

by M.M. against the Federal Republic of Germany and registered

on 26 September 1986 under file No. 12411/86;

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 they have been submitted by the

applicant, may be summarised as follows.

The applicant, a Pakistani born in 1955, was, when lodging his

application, resident at Heilbronn. Before the Commission he is

represented by Mr. V. Hohbach, a lawyer at Heilbronn.

I.

In August 1976 the applicant entered the Federal Republic of

Germany and requested asylum. His request was rejected by the Federal

Office for the Recognition of Refugees (Bundesamt für die Anerkennung

ausländischer Flüchtlinge) in 1977. The applicant lodged an action

against this decision with the Ansbach Administrative Court

(Verwaltungsgericht), which he withdrew in November 1980.

II.

On 7 November 1980 the applicant married a German woman. The

couple already had a son, born on 2 March 1980.

In October 1982 the couple separated and, with the exception

of the period November 1983 to February 1984, the applicant no longer

lived together with his wife and son.

On 11 December 1984 the Heilbronn District Court

(Amtsgericht), at the request of the applicant's wife, granted

divorce. The wife was given the care of the son. The judgment did

not contain provisions concerning the applicant's right to visit his

son.

The applicant states that, in agreement with the child's

mother, he has in fact been seeing his son regularly, on the average

one full day or two half days per week.

III.

On 27 November 1980 the Heilbronn Municipal Office

(Landratsamt), having regard to the applicant's marriage, granted him

a residence permit which was limited until 7 November 1983. On

15 November 1983 it was prolonged until 10 March 1984.

On 8 March 1984 the applicant requested a further prolongation

of his residence permit. On 18 June 1984 he lodged an action with the

Stuttgart Administrative Court (Verwaltungsgericht) and requested that

the Municipal Office be ordered to grant a further prolongation.

On 13 November 1984 the Administrative Court ordered the

Heilbronn Municipal Office to decide upon the applicant's request of

8 March 1984 taking the legal opinion of the Court into due

consideration. The Court found in particular that, as long as the

divorce proceedings were pending, the applicant's right to family

life, as guaranteed by Article 6 of the German Basic Law

(Grundgesetz), entitled him to have his residence permit prolonged.

On 14 August 1985 the Heilbronn Municipal Office rejected the

applicant's request of 8 March 1984 and ordered him to leave the

Federal Republic of Germany. It found that under S. 2 para. 1 of the

German Aliens' Act (Ausländergesetz) in conjunction with the

administrative directive of the Baden-Wurttemberg Minister of the

Interior concerning the implementation of the Aliens' Act

(Verwaltungsvorschrift zur Ausführung des Ausländergesetzes) the

applicant had no right to be granted a residence permit.

According to S. 2 para. 1 of the Aliens' Act the grant of a

residence permit lies within the discretion (pflichtgemässes Ermessen)

of the competent administrative authority. The Baden-Wurttemberg

administrative directive provides, inter alia, that a foreigner, who

has been granted a residence permit on the sole ground of his marriage

with a German national, should, in the case of the dissolution of that

marriage, only be enabled to stay in the Federal Republic of Germany

if there are still ties that ought to be protected.

The Office noted in particular that, when the couple

officially separated in October 1982, they had already lived

separately for about three months. Moreover, in February 1984 the

applicant returned for several weeks to Pakistan. The Office pointed

out that the applicant was granted a residence permit only on the

ground of his marriage with a German national. However, he was

meanwhile divorced and could no longer expect to receive a further

residence permit. Moreover, the divorce judgment did not grant the

applicant a right of access to his son and his divorced wife had

already complained to the Office about frequent molestations by the

applicant. The Office concluded that the applicant had no family ties

which were to be protected by granting a permanent residence permit.

On 14 November 1985 the Baden-Wurttemberg Administrative Court

of Appeal (Verwaltungsgerichtshof), upon the appeal (Berufung) of the

Heilbronn Municipal Office, quashed the judgment of 13 November 1984

and rejected the applicant's request. The Court confirmed in

particular the reasoning in the decision of 14 August 1985 as regards

the protection of family ties. It found that the period of the

applicant's marriage and in particular the time the spouses had

actually been living together was too short to create a firm

relationship. Furthermore, there existed in fact no family life

between the applicant and his son. The relationship was limited to a

right to access and the obligation of maintenance. The Court

concluded that in these circumstances of a solely legal relationship

the requirements of Article 6 para. 1 of the Basic Law and Article 8

para. 1 of the Convention concerning the right to respect for family

life could be met by allowing temporary visits.

The Court did not grant leave to appeal (Revision) to the

Federal Administrative Court (Bundesverwaltungsgericht).

On 13 March 1986 the Federal Administrative Court dismissed

the applicant's request for leave to appeal (Nichtzulassungsbeschwerde).

The Court found that Article 6 of the Basic Law did not require that

the applicant be granted a permanent residence permit since according

to the statement of facts in the appeal court's judgment of

14 November 1985 there were no contacts between the applicant and his

child. The Court noted that the applicant had not contested these

findings of the Office nor had he stated that he in fact exercised his

right of access to his son. The Court considered that, in proceedings

concerning an appeal on points of law (Revision), it was bound by the

statement of facts as established by the Administrative Court and the

Administrative Court of Appeal, i.e. that there existed for the time

being no family contacts between the applicant and his son. The

Court, therefore, concluded that there was no interference with the

applicant's right to respect for his family life under Article 8 of

the Convention and it referred in this context to the Commission's

decision of 8 March 1985 in the Berrehab and Koster case (No.

10730/84).

On 21 July 1986 the Federal Constitutional Court (Bundesver-

fassungsgericht) rejected the applicant's constitutional complaint

(Verfassungsbeschwerde) as offering no prospect of success. The Court

found in particular that there was no interference with the

applicant's right to respect for his family life under Article 6 of

the Basic Law and Article 8 of the Convention, as he had failed to

show that he had sufficiently strong legal and factual family

relations with his child. The Court referred in this respect to the

Commission's decision in the Berrehab and Koster case.

In October 1986 (the applicant did not specify the date nor

submit the decision) the Heilbronn Municipal Office ordered the

applicant to leave the Federal Republic of Germany by 4 November 1986

and announced the execution of the expulsion order.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that

the refusal of a residence permit in the Federal Republic of Germany

amounts to a violation of his right to respect for family life. He

submits in particular that his expulsion to Pakistan would in fact

interrupt his relationship with his son, inasmuch as he could not

afford to visit his son in Germany.

2. He also invokes Articles 3 and 14 of the Convention in respect

of the above complaint.

THE LAW

1. The applicant complains that the decision of the German

authorities to refuse a residence permit and to expel him to Pakistan

constitutes a breach of his right to respect for family life under

Article 8 (Art. 8) of the Convention.

The Commission points out first that no right of an alien to

enter or to reside in a particular country, nor a right not to be

expelled from a particular country is as such guaranteed by the

Convention. However, the exclusion of a person from a country in

which his close relatives live could involve a violation of Article 8

(Art. 8) of the Convention (cf. No. 6357/73, Dec. 8.10.74, D.R. 1 p. 77;

No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219).

Article 8 (Art. 8) of the Convention provides:

"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 recalls its constant case-law that the family

life of the parents with their children does not cease following

divorce (cf. No. 7770/70, Dec. 2.5.78, D.R. 14 p. 175) and that

Article 8 (Art. 8) of the Convention includes the right of a divorced parent

who is deprived of custody to have access to or contact with his child

(cf. Hendriks v. the Netherlands, Comm. Report 8.3.82, paras 94, 95,

D.R. 29 p. 5). The Commission notes that, in the present case, the

applicant apparently lived together with his son approximately two

years before the divorce. Moreover, the applicant alleges to have in

fact a regular relationship with his son. The Commission finds that,

because the applicant's expulsion to Pakistan will make regular

contacts with his son practically impossible, there is an interference

with the applicant's right to respect for family life.

The Commission has next examined whether or not such

interference was justified under Article 8 para. 2 (Art. 8-2) of the

Convention.

The Commission notes that the decision of the German

authorities not to grant the applicant a residence permit was taken in

accordance with S. 2 para. 1 of the German Aliens' Act and the

relevant administrative directive for its implementation. It was,

therefore, taken in accordance with German law.

Furthermore, the decision was based on German immigration

policy, which is aimed at regulating the right of aliens to take up

residence in the country. Having regard to the close connection

between immigration policy and considerations pertaining to the

economic well-being of the country and the public order, the

Commission considers that the decision not to grant the applicant a

residence permit was taken in pursuit of legitimate aims within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention, i.e. the economic

well-being of the country and the prevention of disorder.

The question which remains to be answered is whether or not

the decision was "necessary in a democratic society" in pursuit of

these aims.

The Commission recalls that "necessary" in this context

implies the existence of a pressing social need, and that it is for

the national authorities to make an initial assessment thereof (cf.

Eur. Court HR, Handyside judgment of 7 December 1976, Series A No. 24,

para. 48). A fair balance must be struck between respect for the

individual rights at issue and the protection of the particular

interests on which the interference is based. When, as in the present

case, the right at issue is the family life of a parent and a child,

particular regard must be had to the interests of the latter (cf.

Hendriks v. the Netherlands, op. cit., para. 120). When assessing the

proportionality of the interference with the applicant's and his

child's rights, the national authorities must take sufficient account

of their interest to continue existing, extensive contacts between

them (cf. No. 10730/84, Dec. 8.3.85 - Berrehab and Koster v. the

Netherlands).

The Commission therefore considers that a parent's interest in

maintaining regular contacts with a child who is in the care of the

other parent does not necessarily entitle him or her, on the basis of Article 8

(Art. 8) of the Convention, to take up residence in the country where the other

parent and the child are living. In order to establish whether such a right

exists in a particular case, the character of the relations between parent and

child must be examined and balanced against the general interest which calls

for restrictions in regard to immigration.

The Commission notes that, in the present case, the German

administrative and judicial authorities considered the applicant's

right to respect for family life under the German Basic Law and under

Article 8 (Art. 8) of the Convention. The Commission's decision of

8 March 1985 in the Koster and Berrehab case was taken into account by

the Federal Administrative Court and the Federal Constitutional Court.

The Heilbronn Municipal Office based its decision on an extensive

establishment of the applicant's situation and relationship with his

family and in particular with his son during the period of the

marriage and after its dissolution. It pointed out that the applicant

had only lived together with his family for a relatively short time,

the divorce judgment did not provide for a right to visit his son and

that, moreover, the applicant's divorced wife complained about

molestation by him. The Federal Administrative Court also referred to

the fact that the applicant had not contested the statement that he

had not executed his right of access, but rather submitted in the

appeal proceedings that he wished to have contact with his son in the

future. The German Courts, therefore, concluded that the applicant

had failed to show sufficiently strong legal and factual relations

with his child which would render the decision to expel him

unjustified.

In these particular circumstances the Commission finds no

indication that in reaching their decisions on this matter the German

Courts struck an unfair balance beween the conflicting interests at

issue.

The interference with the applicant's right under Article 8

para. 1 (Art. 8-1) of the Convention was therefore justified under paragraph 2

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

It follows that the application, in this respect, is

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

the Convention.

2. The applicant also alleges violations of Articles 3 (Art. 3) and 14

(Art. 14) of the Convention in respect of the above complaint. However, the

Commission finds no appearance of a violation of either of these Articles. It

follows that these allegations are likewise manifestly ill-founded within the

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary of the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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M. v. THE FEDERAL REPUBLIC OF GERMANY

M. v. THE FEDERAL REPUBLIC OF GERMANY

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