THIRD SECTION

DECISION

Application no . 45558/09 Firay GEREGHIHER GEREMEDHIN against the Netherlands

The European Court of Human Rights ( Third Section ), sitting on 23 August 2016 as a Chamber composed of:

Luis López Guerra , President, Helena Jäderblom , Helen Keller , Johannes Silvis , Dmitry Dedov , Pere Pastor Vilanova , Alena Poláčková , judges, and Fatoş Aracı , Deputy S ection Registrar ,

Having regard to the above application lodged on 17 August 2009 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Firay Gereghiher Geremedhin , was born in 1971 in Tesenay, Eritrea. His nationality is unknown and he is living in Rotterdam . The applicant, who has been granted legal aid, was represented before the Court by Mr C.F. Wassenaar , a lawyer practising in Rotterdam .

2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. In the late nineties, whilst the applicant was serving in the Eritrean military, his spouse Y fell ill. After her death in July 2002, their fou r children, Filmon, Mary , Robiel and Henok , were taken into the care of their paternal grandparents in Eritrea as the applicant was refused a discharge from the army for the purpose of taking care of his children.

5. Later in 2002, the applicant married Mislal, his current spouse, and in 2003 their son Hannibal was born. Having grown increasingly frustrated with the policies of the Eritrean Government and his unsuccessful requests for a discharge from the military, the appl icant and his wife fled in June 2004 to Saudi Arabia where they applied for asylum. In October 2004, they were recognised by the United Nations High Commissioner for Refugees (“UNHCR”) as refugees under the 1951 Convention on the Status of Refugees. The applicant ’ s four children from his first marriage and Hannibal remained in Eritre a with the applicant ’ s parents.

6. During the stay of the applicant and Mislal in Saudi Arabia, their daughter Betlehem was born in January 2005. She is suffering from congenital hydrocephalus and a congenital heart condition.

7. At the request of the UNHCR, the applicant, his spouse and their child Betlehem were accepted for resettlement as quota refugees in the Netherlands . According to information provided by the applicant to the UNHCR and recorded in the UNHCR Resettlement Registration Form signed by the applicant on 11 January 2007, Filmon had been born in 1990, Mary in 199 3, Rob(i)el in 1994, and Henok in 1995.

8. On 6 November 2007, the applicant, his spouse and Betlehem were granted Netherlands asylum-based residence permits. According to information provided by the applicant to the Amersfoort municipal authorities after their arrival in the Netherlands, Filmon had been born in 1991, Mary in 199 5, Robiel in 1997, and Henok in 1999.

9. On 28 January 2008, the applicant ’ s spouse filed a request for advice on the issuance of a provisional residence visa ( machtiging tot voorlopig verblijf ) for Hannibal for the purpose of family reunion in the Netherlands.

10. Also on 28 January 2008, the applicant filed a request for advice on the issuance of a provisional residence visa for his four children born out of his first marriage with Y for the purpose of family reunion in the Netherlands .

11. On an unspecified date in 2009 , the five children left Eritrea for Sudan as their grandparents were getting too old to care for them. They ended up in the Shagarab refugee camp in eastern Sudan, where they were registered as refugees after a refugee status determination carried out jointly by the UNHCR and the Government of Sudan.

12. On 9 March 2009, the Visa Service ( Visadienst ) of the Netherlands Ministry of Foreign Affairs issued a positive recommendation in respect of the request concerning Hannibal, who until their flight in June 2004 had been part of the nuclear family unit ( gezin ) of the applicant and Mislal, and provided inter alia that it would be demonstrated by official documents – when submitting the request for a provisional residence permit – that Mislal had legal custody ( rechtmatig gezag ) over Hannibal. As he lacked official documents demonstrating his family tie with the applicant and his spouse, Hannibal was considered to find himself in a situation in which – through no fault of his own – he was hampered by a lack of evidence ( bewijsnood ). He was therefore offered the possibility to demonstrate the relationship by means of a free DNA test for which he had to travel to the Netherlands mission in Khartoum. Following a delay caused by logistical problems, he was eventually taken to the Netherlands mission in Khartoum – accompanied by a UNHCR staff me mber – to provide a DNA sample.

13. On 15 December 2009, the Netherlands mission reported that the results of the DNA test showed a strong probability verging on certainty that Hannibal was the applicant ’ s son. Consequently, he could be admitted to the Netherlands and a provisional residence visa was issued to him. On 31 January 2010, the Netherlands mission in Khartoum provided Hannibal with travel documents allowing him to travel to the Netherlands and join his parents. He entered the Netherlands on 7 April 2010 and was granted a residence permit on 14 April 2010.

14. In a separate decision also taken on 9 March 2009, the Visa Service of the Netherlands Ministry of Foreign Affairs issued a negative recommendation in respect of the request for advice concerning the applicant ’ s four children born out of his first marriage. Unlike Hannibal, there were no grounds to authorise family reunion in the Netherlands under the rules applicable for reunification of refugee families since the close family ties ( gezinsband) between the applicant and the four children were considered to have ceased to exist as the children had no longer formed a part of the applicant ’ s nuclear family unit when in June 2004 the applicant and his wife had left Eritrea but , since the death of their mother in July 2002 , had belonged to the nuclear family unit of the applicant ’ s parents as the applicant was unable to care for them . Accordingly, there were doubts as to the relationship of dependency between the applicant and these four children. For this reason, the applicant had been requested to substantiate this relationship of dependency and to submit the birth certificates of these children, which he had not done. Further taking into account the ages of the children, the fact that they were living together in the care of their grandparents, that they were rooted in Eritrean society and of an age that they should be regarded as able to fend for themselves, it was also found that leaving the four children in Eritrea did not amount to such a harrowing situation that it should be qualified as undue hardship ( onevenredige hardhe i d) . It was further found that there were no special facts or circumstances giving rise to a positive obligation under Article 8 of the Convention to admit the four children to the Netherlands. A t the foot of the decision was a note that, according to settled case - law of the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ), no appeal lay against a recommendation in respect of a request for advice given by the Visa Service on the issuance of a provisional residence visa.

15. By 17 August 2009, when the present application was introduced, neither the applicant nor the four children from his first marriage had filed a formal request for the issue of a provisional residence visa for the purpose of family reunion in the Netherlands either under the rules for family reunion of refugee families or under the rules applicable to regular family reunion.

B. Developments after the introduction of the application

16. According to a medical statement, drawn up on 24 September 2009 by a doctor at the Utrecht Wilhelmina Children ’ s Hospital, Betlehem had undergone operations in this hospital from 30 November 2008 to 1 May 2009 and her present medical condition did not allow her to go to Sudan.

17. On 23 April 2010 the applicant informed the Court inter alia that he had recently rented a house in Khartoum for his children.

18. On 28 November 2012 the applicant informed the Court that his oldest son Filmon had been arrested by the Eritrean authorities on the territory of Sudan and had been taken into detention for failure to comply with his military obligations in Eritrea and possibly also for having illegally left Eritrea. The other three children were still in Sudan.

19. On 7 January 2013 the applicant filed a fresh request for advice on the issuance of a provisional residence visa, submitting inter alia that, pursuant to Article 8 of the Convention, the Netherlands authorities were under a positive obligation to provide the four children concerned with a provisional residence permit. By letter of 20 March 2013, the applicant was informed by the Immigration and Naturalisation Service ( Immigratie- en Naturalisatiedienst ) of the Ministry for Security and Justice ( Ministerie van Veiligheid en Justitie) that his request was not suited for consideration in proceedings on a request for advice because he was asking for several exemptions and investigations which could not be considered in proceedings on a request for advice. The applicant was informed that his four children should file a formal request for the issuance of a provisional residence visa in the country of origin or habitual residence. As to his requests for a DNA test and exemption of the minimum income requirement under the applicable immigration rules , he was informed that these belonged to the possibilities but would only be considered in the context of a formal request.

20. On 9 October 2013 the applicant informed the Court that, due to great difficulties in Sudan, the four children born out of his first marriage had had to leave that country. The youngest two, Robiel and Henok, had returned to Eritrea where they were living with their paternal grandmother. His oldest son was still in detention in Eritrea for failure to comply with his military obligations, and the applicant ’ s daughter Mary had been kidnapped and was being held by rebel forces in the south of Libya. These rebel forces had asked the applicant for money for her release.

21. On 10 December 2014 the applicant informed the Court that Mary had managed to travel to Europe. She had joined the applicant in the Netherlands where she had been granted asylum. The applicant further stated that he was unaware of the whereabouts and fate of his oldest son Filmon and that he intended to file an application for a provisional residence visa in due time for his two youngest sons Robiel and Henok who were still living with their grandmother in Eritrea and who would soon come of age and therefore eligible for military service in Eritrea.

22. On 20 October 2015 the applicant informed the Court that the application for a provisional residence visa he had filed on 20 March 2015 as a sponsor ( mvv-referent aanvraag ) on behalf of Robiel and Henok had been rejected on 17 July 2015 by the Deputy Minister for Security and Justice because there was a discrepancy between the information provided by the applicant and the UNHCR about the exact year of birth of Robiel and Henok, and the applicant had not demonstrated that he had legal custody of them as minor children. The applicant filed an objection ( bezwaar ) against this decision and, on 10 September 2015, submitted his written ground of appeal to the Deputy Minister and a heari ng was scheduled for 14 January 2016. No further information about these proceedings has been submitted.

23. On 12 January 2016 the applicant informed the Court that his son Henok had managed to reach the Netherlands where he had applied for asylum and that he was allowed to await the outcome of this application in the Netherlands. During his journey, he had been separated from his brother Robiel, who was still in Sudan or Libya. The applicant was still in contact with Robiel. Their eldest brother Filmon was doing his military service in Eritrea and therefore could not apply for a provisional residence visa, as Eritrea does not allow its nationals to leave the country and as there is no Netherlands embassy in Eritrea.

C . Relevant domestic law and practice

24. In a ruling handed down on 12 January 2004 (case no. 200306128/1; ECLI :NL:RVS:2004:31 ), the Administrative Jurisdiction Division found that the Visa Service ’ s response on a request for advice for the issuance of a provisional residence visa is merely a recommendation ( advies ) and not a formal decision ( beslissing ) producing legal effects ( rechtsgevolgen ) within the meaning of the General Administrative Law Act ( Algemene Wet Bestuursrecht ). Consequently, unlike a formal decision on a formal request for a provisional residence visa, such a response from the Visa Service cannot be challenged in administrative appeal proceedings.

25. A decision on a formal application for a provisional residence visa can be challenged in administrative appeal proceedings by filing an objection ( bezwaar ) with the executive administrative authority that took the decision, a subsequent request for judicial review before the Regional Court ( rechtbank ) of The Hague and, finally, a further appeal to the Administrative Jurisdiction Division. In these administrative appeal proceedings, an appellant can challenge the compatibility of the decision concern ed with, for instance, Article 8 of the Convention.

26. A positive recommendation on a request for advice for the issuance of a provisional residence visa does not automatically entail the issuance of such a visa. In order to obtain it, a petitioner must submit an actual application request for a provisional residence visa at the Netherlands mission in his or her country of origin or country of habitual residence. Any subsequent appeal proceedings can be brought by the petitioner or by a sponsor ( referent ) on the petitioner ’ s behalf.

27. The rules governing the possibility to obtain an exemption from the obligation to pay statutory administrative charges ( leges ) in immigration proceedings have been set out in G.R. v. the Netherlands ( G.R. v. the Netherlands , no. 22251/07 , § 19 , 10 January 2012 ).

28. Under the Netherlands immigration rules, the reunification of refugee families is in certain aspects less demanding for applicants than the procedure for regular family reunion in that, in the procedure for the reunification of refugee families , the accepted refugee does not have to comply with any income requirement (on this point, see Haydarie and Others v. the Netherlands (dec.), no. 8876/04, 20 October 2005) before his or her nuclear family members may be eligible for family reunion and no administrative charges must be paid for an application for reunification of a refugee family. The requirements for documentary evidence from the country of origin are also less strict than in the regular procedure.

29 . At the relevant time, a residence permit for the purpose of the reunification of a refugee family could be issued to the alien who actually belonged – whether as a spouse or minor child – to the de facto nuclear family unit ( feitelijke gezinsband ) at the time of flight of the accepted refugee, who held the same nationality as the accepted refugee, and who had entered the Netherlands at the same time as the accepted refugee or in respect of whom an application for a provisional residence visa had been filed within three months of the date on which the status of refugee had been granted to the person with whom family reunion wa s sought . The same applied in respect of a request for advice for the issuance of a provisional residence visa for the purpose of reunification of refugee families. Since 1 June 2013 it is no longer possible to request such an advice as, from that date, it is possible for persons holding the status of refugee and living in the Netherlands to apply themselves, as a sponsor, for a provisional residence visa for relatives for the purpose of refugee family reunification.

30 . Until 8 June 2013, a person eligible for a residence permit for the purpose of joining a spouse/partner in the Netherlands where the latter had been granted the stat u s of refugee under the rules applicable to the reunification of a refugee family obtained an asylum-derived residence permit ( afgeleide verblijfsvergunning asiel ), i.e. a residence permit dependent on the refugee status of the person with whom reunion had been allowed. Given the strict distinction between an asylum-related residence permit and a “regular” (i.e. non-asylum related) residence permit, arguments based on Article 8 of the Convention could not be entertained in proceedings on an application for an asylum-related residence permit, including proceedings on a request for a residence permit for reunification of a refugee family.

COMPLAINTS

32. The applicant complain ed under Article 8 of the Convention that his four children born out of his first marriage are not allowed to settle with him in the Netherlands whereas he is their sole remaining parent and whilst the medical condition of his daughter Betlehem who requires constant medical care renders impossible the exercise of family life in Sudan where these four children were living at the time of the introduction of the application.

33. In his submissions of 23 April 2010, t he applicant further complain ed that, as regards his complaint under Article 8, he did not have an effective remedy within the meaning of Article 13 of the Convention.

THE LAW

A. Complaint under Article 8 of the Convention

34. The applicant complain ed under Article 8 of the Convention that the four children born out of his first marriage a re not allowed to settle with him in the Netherlands . In so far as relevant, Article 8 provides:

“1. Everyone has the right to respect for his ... family life ...

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.”

1. The Government

35. The Government argued that the applicant had failed to exhaust domestic remedies. In this connection they pointed out that the applicant ’ s complaint concerned a recommendation concerning a request for advice on the issuance of a provisional residence visa. Unlike a decision on a formal application for a provisional residence visa, no legal remedies are available with respect to a recommendation of this kind.

36. Although the applicant, who was assisted by a lawyer when he filed his request for advice on the issuance of a provisional residence visa, had been informed on multiple occasions about the correct procedure, the four children concerned had not filed a formal application for a provisional residence permit at the Netherlands diplomatic or consular mission. If such an application had been rejected, the four children and the applicant (in his capacity as sponsor) could have challenged that decision in administrative appeal proceedings. In those appeal proceedings they would have the possibility, via judicial review and further appeal proceedings, to have the Netherlands courts assess whether the refusal to issue a provisional residence visa was in compliance with domestic and international law, including Article 8 of the Convention. The applicant, however, consciously opted for a procedure in which there were no possibilities for appeal. In doing so, he denied both the domestic administrative authorities and domestic courts the opportunity to determine whether the four children are eligible for a provisional residence visa under domestic and international law, in particular Article 8 of the Convention.

37. The Government further pointed out that the applicant apparently chose to file a request for advice because, unlike a formal application for a provisional residence visa , no administrative charges were attached to this procedure. However, this is insufficient reason bearing in mind that no administrative fees are charged if an applicant can justifiably invoke Article 8 of the Convention and meets a small number of other conditions. In the absence of a formal application and other necessary information it is impossible to say whether the four children would have been exempted from paying administrative fees. In addition, in the Netherlands there is also a Refugee Fund ( Vluchtelingenfonds ) to which refugees can appeal to pay the costs of administrative fees for residence permits, the costs associated with family reunification and general financial support. The Government saw no reason why the applicant could not approach this Fund for this purpose.

2. The applicant

38. Invoking the Court ’ s case-law that the requirement of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others v. Turkey , 16 September 1996, § 69 , Reports of Judgments and Decisions 1996 ‑ IV , and Rusu v. Austria , no. 34082/02, § 45 , 2 October 2008 ), the applicant argued that it was too formalistic of the Government to require h im and the four children to submit a formal application for a provisional residence visa in Khartoum. Apart from the fact that he himself was unable to do so and that only the four children could file a formal application for a provisional residence visa, the applicant submitted that he had applied for family reunion within three months after he had been granted refugee status in the Netherlands. Requiring the applicant, or rather his children, to file a formal application for a provisional residence visa in Khartoum would entail that a total amount of statutory administrative charges of 1,394 euros would have to be paid, that the minimum income requirement under the regular immigration rules would apply, which constitutes a major obstacle for the applicant, and that – in order to obtain the required official identity documents – the four children would be forced to return to Eritrea.

3. The Court ’ s assessment

39. The Court notes at the outset that the applicant ’ s oldest son Filmon has come of age in eith er 2008 or 2009 (see paragraphs 7-8 above), that the applicant ’ s children Mary and Henok have joined the applicant in the Netherlands, that Mary has been granted a residence permit and that Henok is allowed to await the outcome of his asylum request, and that the applicant ’ s son Robiel is currently in Sudan or Libya and that the applicant is in contact with him. The Court further notes that, in so far as can be established, the application for a provisional residence visa f iled by the applicant on 20 March 2015 as a sponsor on behalf of Robiel and Henok (see paragraph 22 above) is apparently still pending. However, the Court does not find it necessary to determine the impact of these facts on the admissibility of the present application as in any event it is inadmissible for the reasons set out below.

40. The Court reiterates the relevant general principles in respect of the obligation to exhaust domestic remedies under Article 35 § 1 of the Convention as set out in Vučković and Others v. Serbia ( ( preliminary objection) [GC], nos. 17153/11 and 29 others , § § 69-77 , 25 March 2014 ) and Gherghina v. Romania ( ( dec.) [GC], no. 42219/07, §§ 83-89 , 9 July 2015) , in particular that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights and that Contracting States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and that those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system . It should be emphasised that the Court is not a court of first instance . Article 35 § 1 also requires that the complaints intended to be made subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used . Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies.

41. Now turning to the facts of the case, the Court notes that, when the applicant was granted the status of refugee in the Netherlands, it was open to him to seek refugee family reunification with his children staying outside the Netherlands. In order to obtain clarity about their eligibility for the required provisional residence visa, there were two possibilities, namely a request filed by either the applicant or his children for free advice on the chances of obtaining a provisional residence visa or a request filed by the children applying directly for a provisional residence visa. The Court notes that it is not in dispute that, when he opted to file a request for advice, the applicant was assisted by a lawyer. It therefore considers that the applicant must have known at the material time that, unlike a decision on a formal request for a provisional residence visa, it was not possible to appeal against a negative recommendation.

42. The Court reiterates that, in principle, Contracting States have the right to require aliens seeking residence on their territory to make the appropriate request from abroad. They are thus under no obligation to allow foreign nationals to await the outcome of immigration proceedings on their territory (see, for instance, Biraga a nd others v. Sweden ( dec. ) no. 1722/10, § § 52, 59 and 64, 3 April 2012, and Jeunesse v. the Netherlands [GC], no. 12738/10, § 101, 3 October 2014) . Taking into account that the applicant was assisted by counsel at the material time, the Court has found no reason in t he present case why at the material time it could not be expected of the applicant , who chose to seek an advice only on his four oldest children ’ s eligibility for refugee family reunification, to ensure that his four children would lodge a formal request for such reunification at the Netherlands mission in Khartoum which would have allowed the applicant, as the children ’ s sponsor, to appeal a negative decision on that visa application and which would afford the Netherlands administrative and judicial authoriti es the opportunity to examine his allegation of a violation of Article 8 and, if that allegation were to be considered well-founded, to prevent or put right that violation. In reaching this finding, the Court observes in addition that, although such arguments might have been rejected at the material time, as from 8 June 2013 the existence of family life for the purpose of reunification of refugee families is assessed on the basis of, inter alia , principles based on Article 8 of the Convention whereas it has not been argued and it does not appear that it would no longer be possible for the applicant to file such an application.

43. The Court therefore finds that the applicant did not provide the national administrative and judicial authorities with the opportunity which is in principle intended to be afforded to Contracting States under Article 35 of the Convention, namely the opportunity to prevent or put right Convention violations through their own legal system (see Gherghina , cited above, § 115).

44. Accordingly, the Government ’ s objection of failure to exhaust domestic remedies must be upheld and this part of the application must be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 in fine of the Convention.

B. Complaint under Article 13 of the Convention

45. The applicant complained that he did not have an effective remedy for the alleged violation of Article 8 of the Convention in that no appeal lies against the response of the Visa Department to a request for advice on the issuance of a provisional residence visa. He invoked Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

46. According to the Court ’ s established case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131).

47. Having regard to the Court ’ s findings above that the applicant has not exhausted domestic remedies in respect of hi s complaint under Article 8, the Court concludes that the applicant did not have an “arguable claim”, and that therefore Article 13 is inapplicable to the case.

48. It follows that this complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible .

Done in English and notified in writing on 15 September 2016 .

FatoÅŸ Aracı Luis López Guerra              Deputy Registrar President