THIRD SECTION

DECISION

Application no. 31893/05 by Sekou and Aube Mohammed JOMANDAY against the Netherlands

The European Court of Human Rights (Third Section), sitting on 20 October 2009 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura , Boštjan M. Zupančič , Alvina Gyulumyan , Egbert Myjer , Luis López Guerra , Ann Power , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 29 August 2005,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Sekou Jomanday and Mr Aube Mohammed Jomanday, are brothers. They are Liberian nationals who were born in 1987 and 1991 respectively and are living in Amsterdam . They were represented before the Court by Ms F. Kilic, a lawyer practising in Amsterdam . The Dutch Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Ms L. Egmond, of the Ministry of Foreign Affairs.

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

On 19 October 1998, both applicants entered the Netherlands and 26 October 1998, the applicants ’ mother Ms A.K. Jomanday, who had been granted asylum in the Netherlands earlier, applied unsuccessfully for a residence permit on the applicants ’ behalf and for the purposes of family reunion. The final decision was taken by the Regional Court of The Hague ’ s on 7 March 2003.

On 10 December 2003, both applicants filed a second request for a residence permit for the purposes of family reunion with their mother.

In order to demonstrate their kinship with Ms A.K. Jomanday, the applicants submitted DNA test results indicating that Ms A.K. Jomanday was indeed their mother. They further submitted that they were unable to comply with the requirement to have a provisional residence visa and that they should be exempted from this obligation. Such a visa is normally a prerequisite for the grant of a residence permit, which confers more permanent residence rights, and it has to be applied for in a person ’ s country of origin. The applicants submitted that they had lived in the Netherlands since 1998 and were going to school there. Having to return to Liberia would not only entail having to interrupt their studies in the Netherlands but – given the unsettled situation in Liberia as described in the official report ( ambtsbericht ) on Liberia of 7 June 2004 – would also be manifestly unreasonable. Moreover, they did not have any friends or relatives in Liberia who could look after them pending the outcome of a visa application, their mother could not be asked to accompany them as she had built up a life in the Netherlands and had to care for a minor child.

These applications were rejected on 10 September 2004 by the Minister for Immigration and Integration ( Minister voor Vreemdelingenzaken en Integratie : “the Minister”).

By a decision of 3 March 2005 , the provisional-measures judge ( voorzieningenrechter ) of the Regional Court o f The Hague sitting in Arnhem rejected the applicant s ’ objection. The judge found that the Minister could in all reasonableness have decided against applying the “undue hardship” clause in the case at hand as the applicants ’ argument that their personal security could not be guaranteed in Liberia should be raised in asylum proceedings. As the obligation to stay in Liberia awaiting the determination of their request for a provisional residence visa would only be of a temporary duration, the provisional-measures judge further found that this obligation was not contrary to the applicants ’ right under Article 8 of the Convention.

No further appeal lay against this decision.

On 18 September 2008 the Government informed the Court that the applicants had been approached by the Dutch immigration authorities with a view to discuss the terms of a residence permit and that the Government would not be able to submit the requested observation on the admissibility and merits of the case.

On 13 August 2009 the Government informed the Court that on 7 August 2009 the applicants have been granted residence permits valid until 3 August 2010.

On 19 August 2009 the applicants ’ representative informed the Court that the applicants wanted to withdraw the application in the light of these developments.

COMPLAINTS

The applicant s complain ed that the obligation imposed on them by the Netherlands authorities to return to Liberia in order to apply for a provisional residence visa was in breach of their rights under Article 3 and Article 8 of the Convention.

The applicants further complain ed that the proceedings on their request for a residence permit for family reunion fell short of the requirements of Article 6 § 1 of the Convention.

The applicants lastly complained that in respect of their above complaints they did not have an effective remedy within the meaning of Article 13 of the Convention.

THE LAW

The Court notes that the applicants have now been granted residence permits in the Netherlands and appear not to intend to pursue their application.

The Court considers that, in these circumstances, the applicants may be regarded as no longer wishing to pursue their application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Santiago Quesada Josep Casadevall Registrar President