SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50568/99 by Jamal and Nassma ADNANE against the Netherlands

The European Court of Human Rights (Second Section) , sitting on 6 November 2001 as a Chamber composed of

Mr J.-P. Costa , President ,

Mr A.B. Baka , Mr Gaukur Jörundsson , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr M. Ugrekhelidze , judges ,

and Mr T.L. Early , Deputy Section Registrar

Having regard to the above application introduced on 19 July 1999 and registered on 25 August 1999,

Having deliberated, decides as follows:

THE FACTS

The first applicant has both Moroccan and Dutch citizenship. He was born in 1960 and is living in Veenendaal. The second applicant is his daughter. She is a Moroccan national, born in 1989, and currently living with her father. They are represented before the Court by Mr J.A. van Ham, a lawyer practising in Veenendaal.

A. The circumstances of the case

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

The first applicant was born and raised in Morocco, where in 1985 he married M.B., whom he divorced by repudiation on 5 February 1990. The second applicant was born out of this marriage and, after her parents’ divorce, remained in the care and custody of her mother.

On 22 March 1990, the first applicant married with Ms N.B. and, on 4 July 1990, moved to the Netherlands. Out of this marriage, three children were born in the Netherlands in 1992, 1995 and 1999 respectively. Like the first applicant, Ms N.B. has both Moroccan and Dutch citizenship.

After having learned in 1993 that, on 19 June 1991, M.B. had entrusted the second applicant’s care and custody to her sister A.B., the first applicant took proceedings before the Court of First Instance in Meknès (Morocco) seeking to obtain the custody of the second applicant.

In its judgment of 30 January 1996, the Meknès Court of First Instance noted that M.B. had remarried in the meantime and held that, consequently, she had lost the entitlement to the custody of her daughter to the benefit of the father. It therefore awarded the second applicant’s custody to the first applicant. A.B. was ordered to hand the second applicant over to the first applicant, who in turn was to pay A.B. a maintenance allowance for the second applicant’s care as well as an allowance for having looked after the second applicant. This judgment was notified to the parties on 13 March 1996. On the same day, the second applicant took up residence with her parental grandparents in Morocco.

On 26 August 1997, on behalf of the second applicant, the first applicant filed a request for a provisional residence visa ( machtiging tot voorlopig verblijf ) on grounds of family reunification. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights.

On 9 January 1998, the Minister of Foreign Affairs ( Minister van Buitenlandse Zaken ) rejected the request. Insofar as the applicants relied on Article 8 of the Convention, the Minister held that there had been no interference with these rights in that the second applicant had not been deprived of a residence entitlement enabling her to enjoy family life with her father in the Netherlands. The Minister further held that there was no positive obligation under Article 8 of the Convention to allow the second applicant to take up residence in the Netherlands since the refusal to grant her a residence permit did not prevent a continuation of the applicants’ family life as it existed then whereas it had not been established that there was an obstacle to the exercise of their family life outside the Netherlands.

On 15 January 1998, the second applicant filed an objection ( bezwaar ) with the Minister of Foreign Affairs against the decision of 9 January 1998. In the course of a hearing held on 17 June 1998, the first applicant stated, inter alia , that – apart from his parents – he also had two married sisters and two brothers living in Morocco. In his decision of 14 July 1998, the Minister rejected the objection. On 24 July 1998, the second applicant filed an appeal with the Hague Regional Court ( Arrondissementsrechtbank ) sitting in Haarlem.

At some unspecified date in the summer of 1998, the second applicant travelled to the Netherlands, where she moved in with the first applicant’s family.

Following a hearing held on 16 March 1999, the Hague Regional Court rejected the appeal on 15 April 1999. The Regional Court held, inter alia , that there was no indication that the first applicant had always had the intention of being reunited with the second applicant. It noted in this respect that, when the first applicant left Morocco for the Netherlands in 1990, he had left the second applicant behind with her mother in Morocco and found it established that this situation had been intended as being a permanent arrangement. It was only after having learned that the second applicant was in fact being cared for by her maternal aunt that the first applicant took proceedings seeking to obtain the custody of the second applicant. Furthermore, the Regional Court did not find it established that there had been any regular contacts between the applicants during the period when the second applicant had been cared for by her mother and her maternal aunt. On this point, it noted that the first applicant learned only after two years that the second applicant had been entrusted to the care of her maternal aunt. This was not altered by the fact that the first applicant had paid for the costs of the second applicant’s care and upbringing since he had only started to do so after a judicial order to this effect.

As regards Article 8 of the Convention, the Regional Court held that this provision does not contain a general obligation to enable the exercise of family life by way of immigration, but that the existence of such an obligation is dependent on the particular circumstances of each case. In this connection, the Regional Court held that the applicants had not submitted any facts or circumstances on the basis of which it should be held that their personal interest outweighed the interests of the Netherlands authorities in maintaining a restrictive immigration policy, and concluded that the Minister had not acted unlawfully in refusing to grant the second applicant a provisional residence visa.

B. Relevant domestic law and practice

In view of the situation in the Netherlands as regards population size and employment, Government immigration policy – defined in the Aliens Circular ( Vreemdelingencirculaire ) of 1994 – is aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens are only granted admission for residence purposes if: (a) the Netherlands are obliged under international law to do so; (b) this serves the “essential interests of the Netherlands”, e.g. economic or cultural interests; and (c) there are “cogent reasons of a humanitarian nature” (Chapter A4/5.3 of the Aliens Circular).

The policy for admission for family reunification purposes is laid down in Chapter B1/5 of the Aliens Circular. This provides, insofar as relevant, that a residence permit for the purposes of family reunification may be granted to a parent of Dutch nationality with minor children, when the children factually belong to his/her family and family ties with one of the parents already existed abroad. Family ties are considered to have definitely ceased to exist in case of long-term integration of the child into another family while the parent(s) no longer exercise parental authority and no longer provide for the costs of the upbringing and care of the child.

COMPLAINTS

The applicants complain that the refusal by the Netherlands authorities to grant the second applicant a residence permit is contrary to their right to respect for their family life within the meaning of Article 8 of the Convention. In this respect, the applicants further invoke Article 10 of the 1989 United Nations Convention on the Rights of the Child.

THE LAW

The applicants complain that the refusal by the Netherlands authorities to grant the second applicant a residence permit is contrary to their right to respect for their family life within the meaning of Article 8 of the Convention and contrary to Article 10 of the Convention on the Rights of the Child.

Insofar as the applicants rely on the Convention on the Rights of the Child, the Court considers that, under the terms of Article 19 of the Convention, it can only examine complaints under the Convention. It cannot, therefore, examine this part of the application.

Article 8 § 1 of the Convention, insofar as relevant, provides:

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

The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective "respect" for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both contexts the State enjoys a certain margin of appreciation (cf. Gül v. Switzerland judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, p. 174, § 38; and Ahmut v. the Netherlands judgment of 28 November 1996, Reports 1996-VI, p. 2031, § 63).

The present case concerns not only family life but also immigration, and the extent of a State’s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. As a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory (cf. Gül v. Switzerland, loc. cit., p. 174, § 38, and Ahmut v. the Netherlands, loc. cit., p. 2033, § 67).

The instant case hinges on the question whether the Netherlands authorities were under a duty to allow the first applicant’s minor child to settle with him in the Netherlands, thus enabling the applicants to maintain and develop family life in its territory. For this reason the Court will view the case as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation.

Where immigration is concerned, Article 8 of the Convention cannot be considered to impose on a State a general obligation to respect immigrants’ choice of the country of their matrimonial residence and to authorise family reunion in its territory. In order to establish the scope of the respondent State’s obligations, the facts of the case must be considered.

The Court notes in this context, however, that due consideration should be given to cases where a parent has achieved settled status in a country and wants to be reunited with her or his children who, for the time being, have been left behind in their country of origin, and that it may be unreasonable to force the parent to choose between giving up the position which she/he has acquired in the country of settlement or to renounce the mutual enjoyment by parent and child of each other’s company which constitutes a fundamental element of family life ( Abdulaziz , Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 34, § 68). The issue must therefore be examined not only from the point of view of immigration and residence, but also with regard to the mutual interests of the applicants.

The Court notes that in the present case the fact of the applicants’ living apart was the result of the first applicant’s emigration to the Netherlands after his divorce from the second applicant’s mother, leaving the second applicant in her mother’s care. The Court further takes into account the Regional Court’s finding that it had not been established that, during the period that the second applicant was cared for by her mother and subsequently by a maternal aunt, the first applicant had any contacts with the second applicant or that he made any voluntary contribution towards the costs of her education and upbringing.

It was only after the first applicant had learned that the second applicant was in fact being cared for by her maternal aunt that he sought to obtain the custody of the second applicant. The Court further notes that, once the custody was awarded to the first applicant by judgment of 30 January 1996, the first applicant did not seek an immediate reunification with the second applicant, but entrusted her to his own parents in Morocco. It was not until 26 August 1997 that he applied for a Dutch provisional residence visa for the second applicant.

The Court is of the opinion that the refusal by the Netherlands’ authorities to allow entry and provisional residence to the second applicant does not prevent the applicants from maintaining the degree of family life they had prior to the arrival of the second applicant in the Netherlands. Although the applicants would now prefer to maintain and intensify their family life in the Netherlands, Article 8, as noted above, does not guarantee a right as such to choose the most suitable place to develop family life.

Noting that the second applicant has substantial links with Morocco, where she was born and has lived for most part of her life, and finding that it had not been established that the first applicant’s parents or other members of the second applicant’s family would be unable to provide for her care, if need be, with financial support by the first applicant, the Court finds that it cannot be said that the Netherlands State failed to strike a fair balance between the applicants’ interests on the one hand and its own interest in controlling immigration on the other (cf. Ahmut v. the Netherlands, loc. cit., p. 2033-2034, §§ 71- 73; Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7.11.2000; P.R. v. the Netherlands (dec.), no. 39391/97, 7.11.2000; and Lahnifi v. the Netherlands (dec.), no. 39329/98, 13.2.2001). There is therefore no appearance of a violation of the applicants’ right to respect for their family life within the meaning of Article 8 § 1 of the Convention.

It follows that the application must be rejected as being manifestly ill ‑ founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early J.-P. Costa              Deputy Registrar President