FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48989/99 by Andry Misman TROENOSEMITO against the Netherlands

The European Court of Human Rights ( First Section) , sitting on 22 May 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 12 April 1999 and registered on 23 June 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1963 in Surinam, and presently living in The Hague, the Netherlands. He is represented before the Court by Mr C.E. Sanches , a lawyer practising in The Hague.

A.  The circumstances of the case

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

The applicant, when still living in Surinam, was married to a Ms. H. A son, Andy, was born from this marriage on 16 November 1987. The marriage between the applicant and Ms. H. was dissolved in August 1991 after which the latter moved to the Netherlands Antilles. Ms. H. has not taken care of Andy since and the applicant subsequently obtained guardianship of him.

In October 1991 the applicant entered the Netherlands.

In 1993 the applicant was officially admitted to the Netherlands in order to stay with his new partner Ms. S. On 29 October 1994 the applicant obtained Dutch nationality. Two children were subsequently born to the applicant and Ms. S.

On 3 May 1995 the applicant filed a request with the Dutch Embassy in Surinam for a provisional entry visa ( machtiging tot voorlopig verblijf ) for Andy who was eight years old at the time.

On 3 January 1996 the Minister of Foreign Affairs ( Minister van Buitenlandse Zaken ) rejected the applicant’s request.

The Minister concluded that there were no grounds to authorise family reunification since the family ties between the applicant and his son were considered to have been broken. After the applicant had left Surinam, the child had been living with his grandfather and was integrated into the latter’s family. There was no indication that this situation could not be maintained. Moreover, the applicant had not shown that he had been sufficiently involved with the upbringing and care of his son.

The decision stated, in accordance with national immigration policy, that, unless international law obliged the Netherlands to grant admission, aliens could be allowed residence only if this served “essential interests of the Netherlands” ( wezenlijk Nederlands belang ) or in case of cogent reasons of a humanitarian nature ( klemmende redenen van humanitaire aard ). Neither of these conditions was considered to have been met in the case of the applicant’s son.

On 26 January 1996 the applicant filed an objection through counsel with the Minister of Foreign Affairs. On 21 May 1997 an inquiry commission ( hoorcommissie ) of the Immigration and Naturalisation Department of the Ministry of Justice ( Immigratie - en Naturalisatiedienst van het Ministerie van Justitie ) held a hearing with the applicant and his counsel with a view to the objection.

Documents submitted in support of the objection included copies of 14 money transfers which the applicant and his partner had made for the benefit of Andy in Surinam, four copies of telephone bills from 1994 and 1995 and five letters to the applicant from Andy. The applicant further submitted that he was not in receipt of child allowances in the Netherlands in respect of Andy although he had applied for such benefits in 1994. The applicant had been back to Surinam for two weeks in 1996 when his father had fallen seriously ill. The applicant argued that his father’s state of health – according to a medical certificate the latter had been declared 70-75 % unfit to work – prevented him from taking proper care of Andy. The applicant’s other family, a brother, who was 24 years old at the time, and the applicant’s sister, who had her own family and lived far away, in another part of Surinam, as well as Andy’s older brother were also unable to take care of him.

The applicant submitted at the inquiry hearing that he had been unable to file a request for entry of his son earlier because initially he had had problems settling and finding a suitable job and accommodation.

On 19 June 1997 the Minister rejected the applicant’s objection confirming that the family ties between the applicant and his son were broken. He held, having regard to the evidence adduced, that the applicant had not shown that he had made a substantial parental or financial contribution to his son’s upbringing. Furthermore, as regards the care of Andy in Surinam, the applicant had not sufficiently shown why his son could not continue to be taken care of by the grandfather’s family or other family members in Surinam. The Minister held against the applicant the fact that he had only requested for his son to be allowed to join him in 1995 whereas he had been legally resident in the Netherlands since 1993. Thus, the Minister concluded, the child’s integration in the grandfather’s family could not be considered to have been a temporary measure.

On 3 July 1997 the applicant lodged an appeal with the Aliens Chamber of the Hague Regional Court ( Arrondissementsrechtbank te ‘s- Gravenhage , Vreemdelingenkamer ). On 7 December 1998 the Regional Court rejected the applicant’s appeal. It held that the applicant had failed to show that his family ties with his son had been maintained. It also found that following the applicant’s departure in 1991 he had no longer exercised parental authority over his son in the sense that he had been intensively involved with his son’s upbringing and had taken decisions in this regard. The Regional Court agreed with the Minister that the applicant’s son should be deemed to have integrated in the family of his grandfather. The Regional Court attached importance to the fact that the applicant only requested to have his son join him in the Netherlands on 3 May 1995.

When assessing whether the State’s actions had been in compliance with the requirements of Article 8 of the Convention, the Regional Court looked into the question of whether the refusal to grant the applicant’s son a residence permit as such constituted a violation of that provision. It pointed out that its task was to strike a balance between the interests of the applicant and those of society as a whole (the latter interest being served by a restrictive immigration policy). It found that no obligation for the State to allow family reunion on its territory could be derived from Article 8 of the Convention. It further considered that there were no objective reasons why the applicant could not exercise family life with his son in Surinam or maintain the level of family life as this had existed since 1991.

The Regional Court’s decision was final and not subject to appeal.

On 11 April 2001 the applicant’s representative informed the Court that Andy had been placed in a children’s home in Surinam following the death of his grandfather in 2000. In view of these changed circumstances, a new request for a provisional entry visa was made but to date, almost a year later, no decision has been taken on this request.

B. Relevant domestic law

1.  Entry in general

Article 1 of the Order on Aliens ( Vreemdelingenbesluit ) provides that the Minister of Foreign Affairs ( Minister van Buitenlandse Zaken ) decides on requests for a provisional residence visa.

In general, the Minister of Justice ( Minister van Justitie ) decides on requests lodged by aliens for residence in the Netherlands Article 11 Aliens Act ( Vreemdelingenwet ). He can refuse entry and residence on general interest grounds ( gronden aan het algemeen belang ontleend ).

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, an application for a residence permit in the Netherlands is granted only if the individual's presence serves an essential national interest or if there are compelling humanitarian grounds to do so (Chapter A4/5.3 of the Aliens Circular).

2.  Family reunification

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 cost of upbringing and care of the child.

3.  Adoption of children from abroad

The “Law on Adoption of Children From Abroad” ( Wet opneming buitenlandse pleegkinderen ) and the Aliens Circular provide that under specific conditions children may be adopted from abroad. These conditions include, inter alia , that the child may not be more than six years old (exceptions possible) and that the Minister of Justice has issued a specific “initial permission” ( beginseltoestemming ) after all formalities and criteria, including a positive opinion from the Child Care and Protection Board ( raad voor de kinderbescherming ), have been complied with.

COMPLAINTS

1.  The applicant complains under Article 8 of the Convention that residence in the Netherlands for the purpose of family reunification was refused to his minor son, as a result of which he is unable to enjoy family life with his child.

2.  The applicant further complains that he and his son are victims of discrimination in that other Dutch nationals are permitted to bring adopted children to the Netherlands from abroad in order to create family life.

3.  Finally, the applicant complains that the proceedings in which his request for family reunification was examined were not fair.

THE LAW

1.  The applicant complains, invoking Article 8 of the Convention, about the refusal by the Dutch authorities to authorise entry of his minor son from Surinam to the Netherlands, for the purposes of family reunification and continuation of their joint family life.

Article 8 of the Convention provides, insofar as relevant:

“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 considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government and to invite it to submit written observations on the admissibility and merits of the case.

2.  The applicant further alleges that he and his son are subjected to discriminatory treatment in comparison with Dutch nationals who are allowed to create family life by adopting children from abroad and have them come to the Netherlands.

Although the applicant does not explicitly invoke Article 14 in conjunction with Article 8 of the Convention, the Court assumes this from the wording of his complaint.

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Having examined the materials of the case and domestic law in question, the Court notes the following.

Adoption of children from abroad, like family reunification, is subject to strict criteria and conditions which have to be fulfilled before entry into the Netherlands is permitted. In the present case the right to entry was denied to the applicant’s son in view of the fact that under domestic law he was found not to qualify for family reunification. The fact that other children being adopted from abroad may be allowed to enter, in the event that their foster parents fulfil all the necessary domestic legal requirements, cannot be seen as discriminatory treatment in relation to the applicant and his son in their specific situation of having applied for family reunification. These two situations cannot be considered analogous (cf. the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 22, para . 46).

On this basis the Court considers that no issues arise under Article 14 in conjunction with Article 8 of the Convention and concludes that the complaint in this respect is manifestly ill-founded. It should therefore be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3.  The applicant also complains, without explicitly invoking Article 6 of the Convention, about the lack of a fair trial in the proceedings relating to his request for family reunification.

Article 6 of the Convention, insofar as relevant, provides:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing …”

The Court notes, with reference to the Convention case-law, and in particular most recently the Maaouia v. France ( judgment of 5 October 2000, no. 39652/98, to be published in ECHR 2000-X), that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention. This part of the application must therefore be rejected as being incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint relating to the refusal by the Netherlands authorities to allow his son entry and residence in the Netherlands for the purpose of family reunification;

Declares inadmissible the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President