FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39329/98 by Ahmed and Nagiha LAHNIFI against the Netherlands

The European Court of Human Rights (First Section) , sitting on 13 February 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr L. Ferrari Bravo , Mr C. Bîrsan , Mr J. Casadevall , Mr B. Zupančič , Mr T. Panţîru , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 21 October 1997 and registered on 13 January 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The first applicant has both Moroccan and Dutch citizenship. He was born in 1958 and is living in Leeuwarden (the Netherlands). The second applicant is the first applicant’s daughter. She is a Moroccan national, born in 1984, and living in Leeuwarden. They are represented before the Court by Mr M.A. Buys, a lawyer practising in Leeuwarden.

A. The circumstances of the case

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

The first applicant is born and raised in Morocco, where he married A.A., whom he divorced by repudiation on 21 September 1986. The second applicant is born out of this marriage and, after her parents’ divorce, remained with her mother. In 1987, the first applicant moved to the Netherlands, where he remarried. Three children were born out of this marriage. Following her mother’s death in 1994, the second applicant was cared for by her maternal grandparents.

On 29 May 1995, the second applicant entered the Netherlands in order to take up residence with her father. On 2 June 1995, on behalf of the second applicant, the first applicant filed a request for a residence permit on grounds of family reunification. On 23 April 1996, the State Secretary of Justice ( Staatssecretaris van Justitie ) rejected the request.

On 23 May 1996, the second applicant filed an objection ( bezwaar ) with the State Secretary against the decision of 23 April 1996. She was invited to appear on 18 July 1996 before the Advisory Commission for Aliens’ Affairs ( Adviescommissie voor vreemdelingenzaken ) in order to be heard in relation to her objection. The second applicant failed to appear before this Commission, but her lawyer did. On 25 July 1996, the State Secretary of Justice rejected the second applicant’s objection.

On 15 August 1996, the second applicant filed an appeal against the decision of 25 July 1996 with the Hague Regional Court ( Arrondissements-rechtbank ). On the same date, she requested the Hague Regional Court for an interim measure allowing her to remain in the Netherlands pending the appeal proceedings.

Following a hearing held on 2 May 1997, the President of the Hague Regional Court sitting in Zwolle rejected the second applicant’s request for an interim measure and rejected her appeal. The President held, inter alia :

“4.4  ... The president considers that the family tie between the and has been broken since 1987, as the since 1987 did not form a part of the family founded in the Netherlands by the first applicant>. It appears from the act of repudiation, drawn up on 21 October 1986, that not the but the maternal grandfather of the has taken the responsibility for the subsistence of the . It must be concluded from the act of repudiation that the has no longer had any involvement in the education of the . It has further not been established that the has remained in fact responsible for the direct authority over the . The president further finds that the financial support of the has not been sufficiently established. In the first place, it is strange that the - in any event only as from 1991 - has transferred money to his sister in Morocco and not to the mother. The transfer of money has further taken place in an irregular and partly unverifiable manner. The alleged financial support cannot, therefore, be seen as effectively providing for the costs of education and care within the meaning of the Aliens’ Act ( Vreemdelingenwet ).

From the fact that the mother of the has died in 1994 after which the has been taken into the family of her maternal grandparents cannot be deduced that the family tie between the and the had been re-established. ...

4.7  Finally, no compelling reasons of a humanitarian nature have been established on grounds of which residence should be granted. In this respect, the has relied on Article 8 of the Convention. On this point, the president considers as follows. Although there is family life in the present case, it cannot be said that there has been an interference, as the refusal to allow the to take up residence in the Netherlands does not deprive her of a residence title that enabled her to enjoy this family life in the Netherlands.

4.8   It has further not been established that there is a positive obligation for the State to grant the a residence title allowing her to enable her to enjoy the family life .

The has submitted that she cannot return to Morocco because her grandparents are too old to care for her. In support of her account, the has referred to the Ahmut judgment of 28 November 1996 of the European Court of Human Rights. The president considers that it has not as yet been established that there is no adequate care for the in Morocco. Since, even assuming that the submitted two statements by Asoufi would come from the father of the deceased mother - in the death, marriage and repudiation act also identified as Amar Tahar - it appears from these statements that only the financially destitute position of these grandparents has brought them to ask the father to take the responsibility for the care.

It cannot be understood why the would be unable to provide from the Netherlands for the costs of the care in Morocco, in particular not as since 1988 the Social Insurance Bank ( Sociale Verzekeringsbank ) has paid child care benefits in respect of the . No significance can further be attached to the submitted two medical certificates of the parental grandparents of the since these relate to the grandparents living in France and not to the grandparents living in Morocco. It further cannot be understood why the aunt, called J.L., would be unable to provide adequate care, the more so since, according to submitted proofs of payment, the would have transferred with a certain frequency money to this aunt, according to his own saying, destined for the . Having regard to the further facts and circumstances, the was, within the framework of the required balancing of interests of the individual concerned and of the State, able to refuse the residence in the Netherlands on correct grounds.”

B. Relevant domestic law and practice

Article 11 of the Aliens Act ( Vreemdelingenwet ) provides that the Minister of Justice  ( Minister van Justitie ) determines requests lodged by aliens for admission to and residence in the Netherlands. The Minister may refuse access 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, aliens are only granted admission for residence purposes if: (a) the Netherlands are obliged under international law to do so; (b) this serves “essential interests of the Netherlands”, e.g. economic or cultural interests; (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 upbringing and care of the child.

COMPLAINTS

1.  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. The applicants submit that, before leaving for the Netherlands, the first applicant visited his daughter at least every week and that the latter visited her father at least twice per month. They further submit that, after the first applicant’s departure for the Netherlands, they had regular contacts with each other by letters and telephone calls.  The first applicant further paid a visit to his daughter during the period that she lived with her maternal grandparents.

2.  The applicants further complain under Article 6 § 1 of the Convention that the proceedings concerning the second applicant’s request for a residence permit exceeded a reasonable time.

THE LAW

1.  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, which provision, insofar as relevant, reads as follows:

“ 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 the circumstance that in light of the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment (28 May 1985, Series A no. 94, p. 34, § 68) the proposition is supported that in 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, it may be unreasonable to give the parent the choice 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.

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 and the leaving financial responsibility for the

second applicant’s care and education to the second applicant’s maternal grandfather. It was only after about nine years of separation that the first applicant sought to be reunited with the second applicant. It has not been substantiated that, during their separation, the first applicant had contacts with the second applicant by letters or by other means.

It is true that the first applicant filed a request for a residence permit for the second applicant after the second applicant’s mother had died in Morocco. However, until that time the second applicant had lived in Morocco where, after the death of her mother, she was raised and cared for by her maternal grandparents. The Court does not find it established that these grandparents would be unable to continue to provide for the second applicant’s care.

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 after the first applicant had separated from the seconds applicant’s mother and subsequently left for 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.

In these circumstances, the State cannot be said to have 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; and P.R. v. the Netherlands (dec.), no. 39391/97, 7.11.2000). There is therefore no appearance of a violation of the applicants’ right to respect for their family life within the meaning of Article 8 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2.  The applicants further complain under Article 6 § 1 of the Convention that the proceedings on the second applicant’s request for a residence permit exceeded a reasonable time.

Article 6 § 1 of the Convention, insofar as relevant, provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court recalls 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 and that, consequently, such proceedings do not fall within the scope of this provision ( Maaouia v. France [GC], no. 39652/98, 5.10.2000, §§ 40-41, to be reported in ECHR 2000-X).

It follows that this part of the application must be rejected under Article 35 § 3 of the Convention as incompatible ratione materiae .

For these reasons, the Court by a majority

Declares the application inadmissible.

Michael O’Boyle Elisabeth Palm Registrar President