SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50435/99 by Solange RODRIGUES DA SILVA and Rachael HOOGKAMER against the Netherlands

The European Court of Human Rights (Second Section) , sitting on 14 September 2004 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni, judges , , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 9 July 1999 ,

Having regard to the partial decision of 25 March 2003 ,

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

Having deliberated, decides as follows:

THE FACTS

The first applicant, Solange Rodrigues da Silva, is a Brazilian national, who was born in 1972 and lives in Amsterdam . The second applicant, Rachael Hoogkamer, born in 1996, is her daughter. Rachael wa s represented by her father, Mr Daniël Hoogkamer, who exercises parental authority ( ouderlijk gezag ) over her. Both applicants we re represented before the Court by Ms G. van Atten, a lawyer practising in Amsterdam .

A. The circumstances of the case

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

The first applicant came to the Netherlands in June 1994, leaving her two sons from a previous relationship, Jean (born in 1990) and Carlos (born in 1992), with her parents. In the Netherlands she lived together with her partner Mr Hoogkamer , who was in paid employment at that time . It is submitted that t he first applicant did look into applying for a residence permit allowing her to reside in the Netherlands with her partner , but, due to the unavailability of documents concerning Mr Hoogkamer ' s income, such an application was n ever actually made .

In April 1995 the first applicant ' s son Carlos joined his mother and Mr Hoogkamer. Her other son Jean remained in Brazil with his grandparents.

On 3 February 1996 Rachael, the second applicant, was born to the first applicant and Mr Hoogkamer. The first applicant was ipso jure invested with parental authority over Rachael. Rachael was recognised ( erkenning ) by Mr Hoogkamer on 28 March 1996 , as a result of which she obtained Dutch nationality.

The first applicant and Mr Hoogkamer split up in January 1997. Rachael stayed with her father, who subsequently applied to the District Court ( kantonrechter ) of Amsterdam in order to be awarded parental authority ( ouderlijk gezag ) over Rachael. The District Court complied with this request on 20 February 1997 , against which decision the first applicant appealed to the Regional Court ( arrondissementsrechtbank ) of Amsterdam . The Regional Court requested the Child Care and Protection Board ( Raad voor de Kinderbescherming ) to examine which attribution of parental authority would be in Rachael ' s best interests.

On 12 August 1997 the first applicant applied, also on behalf of her son Carlos, for a residence permit which would allow her to reside in the Netherlands , either – depending on the outcome of the proceedings concerning the parental authority – with her daughter Rachael or in order to have access to her.

The Child Care and Protection Board stated, in its report of 26 August 1997 , that parental authority ought to remain with Mr Hoogkamer. In view of the likelihood of the first applicant having to return to Brazil, her having parental authority over Rachael could lead to a rupture of the contacts between Rachael and her father, as well as between Rachael and her paternal grandparents, who were very important to Rachael. It was considered that this would be a traumatic experience for Rachael who had her roots in the Netherlands and whose bonding with all the persons concerned had taken place in that country.

In a decision of 26 November 1997 , the Regional Court nevertheless quashed the decision of the District Court and awarded the first applicant parental authority over Rachael. Mr Hoogkamer filed an appeal on points of law to the Supreme Court ( Hoge Raad ).

On 12 January 1998 the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the first applicant ' s request for a residence permit. The first applicant lodged an objection ( bezwaar ) against this decision. At the hearing on th is objection before an official committee ( ambtelijke commissie ) on 27 May 1998, it was stated on behalf of the first applicant that she worked (illegally, as she was not in possession of a residence permit allowing her to work) from Monday to Thursday and that on those days Rachael stayed either with her father or with her grandparents. Rachael stayed with her mother on the remaining days of the week.

On 12 June 1998 the Deputy Minister rejected the objection, holding that, even if account was taken of Rachael ' s right to reside in the Netherlands and to be brought up and educated there, the interests of the economic well-being of the country outweighed the interests of the first applicant. Although the first applicant did not claim welfare benefits, she did not pay taxes or social security contributions either, and there was a sufficient number of nationals of European Union member States or aliens residing lawfully in the Netherlands available to fill the post she was occupying. The general interest also prevailed over Mr Hoogkamer ' s interest in being able to exercise his family life with Rachael in the Netherlands . In this context it was noted that at the time Mr Hoogkamer started the relationship with the first applicant, she had not been entitled to reside in the Netherlands . He had thus accepted that family life with Rachael might have to be enjoyed elsewhere or in a different manner. It was further noted that Mr Hoogkamer did not make a substantial financial contribution to Rachael ' s care and upbringing since he only took care of those expenses on the days Rachael stayed with him and, as he was in receipt of welfare benefits, those costs were borne by public funds.

The first applicant filed an appeal against the Deputy Minister ' s decision to the Regional Court of The Hague sitting in Haarlem .

On 30 October 1998 the Supreme Court quashed the Regional Court ' s decision of 26 November 1997 in the proceedings concerning parental authority and referred the case to the Court of Appeal ( gerechtshof ) of Amsterdam .

The Regional Court of Haarlem rejected the appeal against the refusal to grant the first applicant a residence permit. In its decision of 12 February 1999, the Regional Court held that Article 8 of the Convention did not oblige the national authorities to ensure that Rachael ' s parents would not have to choose between leaving Rachael with her father in the Netherlands or letting her go to Brazil with her mother. Both these options were considered to be realistically feasible. According to the Regional Court , the fact that Rachael would have to miss either her father or her mother was, strictly speaking, the result of the parent ' s choice to conceive a child at a time when the first applicant was not allowed to reside in the Netherlands .

On 15 July 1999 the Court of Appeal of Amsterdam confirmed the decision of the District Court of 20 February 1997 ; the parental authority over Rachael thus remained with Mr Hoogkamer. The first applicant filed an appeal on points of law, which was reje cted by the Supreme Court on 27 October 2000 .

In spite of having received a letter dated 8 July 1999 from the local police informing her that she had to leave the Netherlands within two weeks, the first applicant remains in the Netherlands . She works from Monday to Friday. Rachael stays with her at the weekend and with her paternal grandparents during the week.

In January 2002 the first applicant applied for a residence permit allowing her to reside in the Netherlands with her new Dutch partner. In this application the first applicant indicated that Rachael was being brought up partly by her grandparents and partly by her new family. The application was rejected on 18 April 2002 as the first applicant was not in possession of the required provisional residence visa ( machtiging tot voorlopig verblijf ). The first applicant did not challenge this decision.

The second son of the first applicant, Jean, has been living with his mother in the Netherlands since February 2002.

B. Relevant domestic law

Parental authority comprises the duty and the right of a parent to care for and bring up his or her child (Article 247 § 1 of the Civil Code ( Burgerlijk Wetboek – “CC”)). The parent invested with parental authority is the child ' s statutory representative ( wettelijk vertegenwoordiger ) and administers the child ' s possessions (Article 245 § 4 CC).

At the time relevant to the present application, the admission, residence and expulsion of aliens were regulated by the Aliens Act 19 65 ( Vreemdelingenwet 19 65 ). On 1 April 2001 a new Aliens Act entered into force but this has no bearing on the present case.

The Government pursue a restrictive immigration policy due to the population and employment situation in the Netherlands . Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds.

The admission policy for family reunion purposes was laid down in the Aliens Act Implementation Guidelines 1994 ( Vreemdelingencirculaire 1994 ). It provided that the spouse, the partner, a minor child born of the marriage or relationship and actually belonging to the family unit ( gezin ), and a minor child born outside the marriage but actually belonging to the family unit could be eligible for family reunion if certain conditions (relating to public order, accommodation and livelihood) were met. In the context of family reunion with other family members (so-called extended family reunion), such other members actually belonging to the family unit could also be eligible, in so far as they would otherwise suffer disproportiona te hardship.

The phrase “actually belonging to the family unit” ( feitelijk behoren tot het gezin ) used in Netherlands law only partly overlaps with the term “family life” in Article 8 of the Convention. The alien in question must belong to the family unit with which he or she intends to live in the Netherlands in order to qualify for admission. If it is concluded that the requirement of “actually belonging to the family unit” has not been met, an independent investigation is then carried out to ascertain whether the concept of family life within the meaning of Article 8 of the Convention applies and, if so, whether this provision obliges the State to allow the person concerned to live in the Netherlands, having regard to the specific circumstances of the case.

COMPLAINT

The applicants complained under Article 8 of the Convention of the refusal to grant the first applicant residence in the Netherlands . As a result, they cannot enjoy family life together unless Rachael was to follow her mother to Brazil – in which case she w ould have to miss her fa ther and paternal grandparents –, but her father will not give permission for Rachael to leave the Netherlands.

THE LAW

The applicants alleged that the refusal to grant the first applicant a residence permit constitutes an interference with their right to respect for their family life. They invoked Article 8 of the Convention which, in so far as relevant, provides as follows:

“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 ... 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 Government drew attention to the fact that the family life invoked by the applicants had developed while the first applicant was living in the Netherlands illegally. In their opinion, this constituted a decisive difference with the case of Berrehab v. the Netherlands (judgment of 21 June 1988 , Series A no. 138), since that case related to a refusal to allow continued residence, whereas in the present case the first applicant had not previously resided lawfully in the Netherlands . This illegality was mainly the result of the first applicant ' s own actions – or lack thereof: neither she nor her partner Mr Hoog kamer had made any serious effort to legalise her residence on the basis of their relationship.

The Government further submitted that Rachael ' s father had long since ceased to play a prominent part in her daily care and upbringing. This being so, the parents might have agreed that Rachael would be cared for by the first applicant and would accompany her to Brazil . Since Rachael had only been three years old at the time of the contested decision, she did not have such deep roots in the Netherlands that she would have been unable to adapt to life in Brazil, especially as her half-brothers, along with her mother, might be assumed to provide her with a familiar and supportive environment there. Even if Rachael were to live with her grandparents in the Netherlands , the first applicant would be able to maintain family ties to some extent, since she had the right to visit the Netherlands for short periods. In this context the Government pointed to the fact that even now the first applicant was not living with Rachael all of the time.

The Government concluded that Rachael ' s having to forsake family life with either her father or her mother did not give rise to a positive obligation on their part to admit the first applicant, since this state of affairs had come about as a direct result of Rachael ' s parents ' deliberate decision to enter into a relationship and develop family life with each other and the daughter born of their relationship, even though the mother had no right to reside in the Netherlands.

The applicants argued that by attaching such paramount importance to the fact of the first applicant ' s illegal stay, the balancing exercise to be carried out by the domestic authorities was reduced to unacceptable proportions. Rachael – who was an independent party to these proceedings – had her own, individual, interests which also required consideration: it could not and should not be held against her that she had been conceived during her mother ' s illegal stay.

In the view of the applicants, the present case fell to be compared with that of Şen v. the Netherlands (no. 31465/96, 21 December 2001 ), which concerned a young girl who, like the first applicant, had not previously lawfully resided in the Netherlands . In that case the Court had considered that the parents ' strong ties with the Netherlands constituted an essential element to be taken into account in the balancing exercise. Rachael also had very strong ties to the Netherlands . In addition, just as in the Şen case, there existed a major obstacle in the instant case to family life being developed in Brazil . Since the first applicant was not entrusted with parental authority over Rachael, she did not have the power to make decisions relating to her daughter ' s place of residence – and Rachael ' s father had always maintained that he would not give permission for Rachael to leave for Brazil . If the first applicant was forced to leave Rachael behind in the Netherlands , the latter would be without the close proximity and care of her mother – elements of essential importance to a young girl. The applicants emphasised that an annual visit to the Netherlands of the mother would not even come close to securing Rachael ' s interests.

Finally, it was the applicants ' distinct impression, obtained in the course of the proceedings relating to the parental authority, that it was precisely in order to avoid a situation whereby the Netherlands national Rachael would (have to) leave for Brazil that parental authority had been awarded to her father, d espite the fact that he did not , and still does not , play a significant role in her care and upbringing. There was no other identifiable reason why the father, who was not the parent looking after Rachael, should have been entrusted with parental authority rather than the mother, who was looking after her.

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President