FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47042/99 by George Kenneth MENSAH against the Netherlands

The European Court of Human Rights (First Section) , sitting on 9 October 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 29 December 1998 and registered on 24 March 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant,  George Kenneth Mensah, has both Dutch and Ghanaian nationality. He was born in 1954 and is living in Almere, the Netherlands. He is represented before the Court by Mr Kooij, a lawyer practising in Almere.

A. The circumstances of the case

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

In 1978 the applicant, when living in Ghana, entered into a traditional/religious marriage (i.e. a non-civil marriage) with a Ghanaian woman. Out of this relationship twins were born in 1982, George Kobina and Georgia Araba Mensah. In 1983 the relationship between the applicant and his partner ended. The applicant submits that their mother did not wish to continue to take care of the twins and that he has since taken care of them. He has not been in contact with the mother since and her whereabouts are unknown to him.

In March 1984 the applicant entered the Netherlands for the first time. On 4 May 1984 he was expelled from the Netherlands on the grounds that he was staying in the country illegally.

On 14 June 1984 the applicant married Ms. J. Lijesen, a Dutch national. The wedding took place in Ghana and the couple lived there for a short period together with the applicant’s children. At the end of 1984 the applicant’s wife decided to move back to the Netherlands. The applicant followed her and entered the Netherlands on 11 January 1985.

On 29 March 1985 the applicant obtained a residence permit to stay with his wife. One child was born to the applicant and Ms. Lijesen. Their marriage lasted until 29 March 1989, when it was dissolved. On 4 May 1990 the applicant obtained Dutch nationality.

On 15 August 1990 the applicant married Ms. M. Owusu Sekyere. They were divorced on 30 July 1992.

In 1995 the applicant entered into a traditional/religious marriage with Ms. Juliana Owiredua of Ghanaian nationality. Ms. Owiredua has since obtained Dutch nationality. On 17 July 1996 they concluded a cohabitation contract ( samenlevingscontract ).

The applicant submits that his two former partners, Ms. Lijesen and Ms. Sekyere, did not want to have his children brought into the family and refused to take care of their upbringing, whereas Ms. Owiredua had no objection to taking care of them and loves them as if they were her own. The applicant further submits that he was unable to let the children come to the Netherlands earlier as this would have been refused on the grounds of his lack of sufficient means of subsistence as required under Dutch law.

Upon the applicant’s departure from Ghana, his two children were initially, and temporarily, housed with a friend of the applicant’s in Ghana. After three years the children could no longer be taken care of by that friend and had to move to the house of another friend  - a Mr Aboya - who, after having started a family of his own, no longer wanted to take care of the applicant’s children.

The applicant submits that his friends merely provided temporary accommodation for his children and were not effectively exercising parental authority over them. He took parental decisions, and he also paid all his children’s living expenses. From 1988 he has been visiting his children three times per year, being employed by an airline company enabling him to travel at cheaper rates.

The relation between the applicant and Mr Aboya worsened when he discovered that in the latter’s family, funds, which he had sent for his children, were used for other purposes. Thus, money intended to cover school fees was allegedly appropriated by Mr Aboya, as a result of which the children were unable to go to school in Ghana.

In September 1995 the then thirteen year old twins travelled to the Netherlands on a tourist visa. They have been living with the applicant and Ms. Owiredua ever since. On 7 November 1995 the applicant applied for a residence permit ( vergunning tot verblijf ) for his children.

On 31 October 1996 the State Secretary of Justice ( Staatssecretaris van Justitie ) rejected the request, finding that the conditions under which family reunification could be allowed had not been fulfilled. Thus, no evidence had been produced either as to the existence of family ties prior to the applicant’s residence in the Netherlands, or of contacts between the father and the children having been maintained. Neither was there any evidence that the applicant had supported his children financially. The State Secretary noted, inter alia , that the applicant, since his arrival in the Netherlands, had formed a new family twice. The situation in Ghana was not found to be of such a nature that the children could not return there, and neither had they become integrated in the Netherlands to such an extent that a return to Ghana could not be expected of them.

On 16 January 1997 the applicant filed an objection ( bezwaar ) with the State Secretary against his decision. On 3 June 1997 the State Secretary rejected the objection, finding that the family ties between father and children had been broken in view of the fact that the applicant’s leaving the twins in the care of friends for ten years could not be considered to have been a temporary measure. The State Secretary concluded that even if the situation in Ghana was less favourable for the children than the one in the Netherlands, they should nevertheless be presumed capable of fending for themselves without requiring intensive supervision and, if necessary, with financial support from the Netherlands.

On 30 June 1997 the applicant lodged an appeal with the Hague Regional Court ( Arrondissementsrechtbank ) sitting in Zwolle. He argued that the interpretation given by the domestic authorities of “family” was not in line with Article 8 of the Convention and the case-law of the Court. He further emphasised the difficulties which his children would face if returned to Ghana, with no adequate accommodation or care, whereas he was capable of taking care of them in the Netherlands.

On 1 July 1997 a person responsible for the children at school reported that they were suffering emotional problems as a result of their experiences in Ghana and that especially Georgina would benefit from a social rehabilitation programme.

On 22 July 1997 a hearing took place before the Regional Court during which it appeared that, contrary to earlier statements by the applicant, the children had stayed with their grandmother in Ghana for seven or eight years and that regular contacts also existed between the children and their mother.

The Regional Court rejected the applicant’s appeal on 24 July 1998. It held that the burden of proof as to the continued existence of family ties lay with the applicant and that he had failed to produce sufficient evidence of such family ties. In addition, no evidence confirming the applicant’s financial support or the actual exercise of parental authority over the children had been produced.

In respect of Article 8 of the Convention the Regional Court found that the current level of family life between the applicant and his children had been created at a time when the children were not allowed to be in the Netherlands. Therefore, the decision to refuse them residence was not aimed at depriving them of a previously granted right to family reunification. The Regional Court concluded that Article 8 of the Convention did not impose a positive obligation on the State to respect an alien’s choice to exercise his family life in the Netherlands. It was further held that sufficient facilities for the care of the children existed in Ghana.

On 21 January 1999 temporary guardianship ( voorlopige voogdij ) of the applicant’s daughter Georgia was attributed by the Juvenile Court Judge ( kinderrechter ) of Lelystad to a child care organisation, on the grounds that the applicant was not properly fulfilling his parental duties.

On 11 February 1999 the Child Care and Protection Board ( Raad voor de Kinderbescherming ) filed a request with the District Court ( kantongerecht ) of Lelystad for the applicant nevertheless to be awarded parental authority ( ouderlijk gezag ) over his daughter Georgia.

On 18 February 1999 the District Court judge awarded the applicant parental authority over his daughter Georgia and issued a supervision order ( ondertoezichtstelling ) whereby a child care organisation was charged with providing the applicant and his daughter the necessary support.

On 14 April 2000 the Aliens Department ( Vreemdelingendienst ) of Almere confiscated the children’s passports and ordered them to leave the country.

B. Relevant domestic law and practice

Article 1 of the Aliens Law ( Vreemdelingenwet ) provides that a provisional residence visa ( machtiging tot voorlopig verblijf ) is required for an alien who wishes remain in the Netherlands for a period of more than three months.

The policy for admission for family reunification purposes is laid down in Chapter B1/5 of the Aliens Circular ( Vreemdelingencirculaire ). 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 cost of upbringing and care of the child.

COMPLAINTS

The applicant alleges a breach of Article 8 of the Convention in that the Dutch authorities refused to grant a residence permit to his two minor children in order for them to reside with him in the Netherlands. He argues that the criteria used by the domestic authorities to establish whether family ties still exist between the children and himself are not in conformity with the Court’s case-law.

The applicant further argues that in denying his children residence, the Netherlands failed to comply with the positive obligation which Article 8 imposes on the State in this case.

The applicant also complains that the restrictions imposed on his family life were not in accordance with the law as required by paragraph 2 of Article 8 of the Convention since the refusal of family reunification was based on policy guidelines laid down in the Aliens Circular which cannot be considered as law.

THE LAW

The applicant complains that the rejection by the Dutch authorities of his children’s request for entry to the Netherlands for the purpose of family reunification constitutes a breach of Article 8 of the Convention. The applicant further contends that the alleged interference with the right to respect of his family life was not in accordance with the law as provided under paragraph 2 of Article 8 of the Convention.

The Court will deal with both issues jointly for the reasons set out below.

Article 8 of the Convention provides, in so far as relevant, 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 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 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, pp. 174-175, § 38; and Ahmut v. the Netherlands judgment of 28 November 1996, Reports 1996-VI, p. 2031, § 63).

The Court considers that the present case concerns the question whether the Netherlands authorities were under a positive obligation to allow the applicant’s children to take up residence with him in the Netherlands, thus enabling them to maintain and develop family life on its territory. The Court will therefore view the case as one involving an allegation of failure on the part of the State to comply with a positive obligation.

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. Moreover, where immigration is concerned, Article 8 of the Convention cannot be considered to impose on a State a general obligation to authorise family reunion on its territory (cf. Gül v. the Netherlands judgment, loc. cit. , pp. 174-175, § 38; and Ahmut v. the Netherlands judgment, loc. cit. , p. 2033, § 67).

The Court notes that in the present case the applicant’s living apart from his children was the result of his initial conscious decision to move to the Netherlands and settle with his Dutch spouse and subsequently, after that marriage failed, to develop and/or sustain relationships with other partners in the Netherlands, rather than to remain in or return to Ghana.

It should be emphasised that the applicant’s request for entry for his children was made ten years after his arrival in the Netherlands, whereas this would have been possible as early as 1985 when he obtained a residence permit. The Court does not find convincing the applicant’s argument that he left his children in Ghana because of the unwillingness of his partners in the Netherlands to take care of the twins, or his submission that he did not have sufficient means of subsistence enabling him to try to have his children join him earlier.

It can accordingly not be said that there was a clear intention, confirmed by adequate action on the part of the applicant, to be reunited with his children in order to exercise family life together until his children entered the Netherlands on a tourist visa ten years after he had settled there.

It is true that, following their arrival in the Netherlands in 1995, the children have been living with their father. However, the Court notes that the children entered the Netherlands without the required provisional residence visa and that they were never given any assurances that they would be granted a right of residence by the competent authorities. Therefore, no additional issues relating to the above-mentioned considerations concerning the obligations of the State under Article 8 arise in this respect.

The Court finally observes that the refusal to allow the applicant’s children residence in the Netherlands does not prevent the applicant from maintaining the degree of family life which he himself opted for when moving to the Netherlands, and which he maintained until 1995. Neither has it been made apparent that there are, strictly speaking, obstacles preventing the applicant and his children from developing their family life in Ghana.

Consequently, in the circumstances of the present case, the State cannot be said to have failed to strike a fair balance between the applicant’s interests on the one hand and its own interest in controlling immigration on the other. There has accordingly been no appearance of a violation of Article 8 of the Convention.

In view of its above findings, the Court does not find it necessary to examine the complaints under the second paragraph of Article 8 § 1 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and should be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Michael O’Boyle Elisabeth Palm Registrar President