FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38047/97 by J.M. against the Netherlands

The European Court of Human Rights (First Section) , sitting on 9 January 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 28 August 1997 and registered on 3 October 1997,

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 applicant is a naturalised Dutch national of Cape Verdean origin, born in 1952 and living in Rotterdam. He is represented before the Court by Ms Y.M. Schrevelius , a lawyer practising in Rotterdam.

A. The circumstances of the case

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

The applicant entered the Netherlands in 1977, where he has lived since. In 1989, his wife and their two youngest children, who until that time had lived in the Cape Verde Islands, joined the applicant in the Netherlands and were granted residence permits. The applicant’s two eldest children, G. and L., born in 1977 and 1979 respectively, remained in the Cape Verde Islands because the applicant had not sufficient means to bring them over as well. They were cared for by the applicant’s parents.

The applicant obtained Netherlands nationality in 1992. His wife has retained her Cape Verdean nationality. Three further children were born to the applicant and his wife in the Netherlands. These children have Netherlands nationality.

After the death of the applicant’s father in June 1992, his mother came to the Netherlands in May 1993, where she was granted a residence permit on humanitarian grounds in view of her advanced age. The applicant’s children G. and L., who were still attending school, remained in the Cape Verde Islands in the house that had formerly been inhabited by the applicant’s parents. They were being cared for by a neighbour.

On 6 May 1993, the applicant applied for a provisional residence visa ( machtiging voor voorlopig verblijf ) for his children G. and L. for the purposes of family reunification. On 26 July 1993, in accordance with the advisory opinion of the Minister of Justice, the Minister of Foreign Affairs rejected the applicant’s request on the ground that the family ties between the applicant on the one hand and G. and L. on the other had been broken.

The applicant lodged an objection ( bezwaarschrift ) with the Minister for Foreign Affairs against this decision on 10 August 1993. He produced his father’s death certificate, his marriage certificate, his contract of employment, several pay slips, various letters received from the neighbour who was looking after G. and L., and G. and L.’s birth certificates. No translation of the neighbour’s letters could be provided as they were written in an almost illegible hand and very poor Portuguese.

The applicant’s objection was dismissed on 17 February 1994. The Minister considered not only that the family ties between the applicant and the two children had been broken, but also that it had not been demonstrated that the intention had been to leave them with their grandparents temporarily rather than permanently.  Moreover, it did not appear that the applicant’s financial situation would have prevented him from bringing G. and L. over at an earlier date than May 1993.  Finally, given their age and the fact that they were being cared for by their neighbour, it did not appear that their situation would be desperate if they had to remain in the Cape Verde Islands. It would, furthermore, be possible for the applicant to support them financially from the Netherlands.

On 25 February 1994 the applicant appealed to the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ) of the Council of State ( Raad van State ), which held a hearing on 3 March 1997.

On 10 March 1997 the Administrative Jurisdiction Division dismissed the appeal, reiterating the grounds on which the Minister for Foreign Affairs had dismissed the objection.  It found in addition that no satisfactory explanation had been given for the applicant’s waiting four years after bringing over his wife and his two younger children before bringing over G. and L. as well.  His financial situation could not explain this lapse of time, since it did not appear that it had improved substantially during that time. It had not been established that the applicant had maintained contact with G. and L. and had supported them financially.  It had not been shown that the neighbour who had taken care of them after their grandmother had left was no longer able or willing to do so, and in view of their age they should be considered increasingly able to take care of themselves, with financial support from the Netherlands if need be. Insofar as living conditions in the Cape Verde Islands were less favourable than in the Netherlands, this was immaterial; in this the situation of G. and L. did not differ from that of many of their compatriots who were likewise denied residence in the Netherlands. While the Administrative Jurisdiction Division accepted that “family life” in the sense of Article 8 of the Convention existed between the applicants and G. and L., it did not accept that there had been an “interference” with it, since the effect of the decision appealed against was not to break up the family by removing G. and L. from the Netherlands; nor were the applicant’s arguments sufficient to find that the Netherlands were under a positive obligation to grant G. and L. provisional residence visas.

COMPLAINT

The applicant complains that the refusal by the Dutch authorities to allow his two eldest children entry to and residence in the Netherlands is contrary to his right of respect for his family life guaranteed by Article 8 of the Convention.

THE LAW

The applicant complains that the refusal to grant a provisional residence visa to his two eldest children is contrary to Article 8 of the Convention, which provides:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

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, § 38 and Ahmut v. the Netherlands judgment of 28 November 1996, Reports 1996-VI, No. 24, § 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 ( ibidem Gül v. Switzerland, § 38 and Ahmut v. the Netherlands, § 67).

The present case hinges on the question whether the Netherlands authorities were under a duty to allow the applicant’s children G. and L. to settle with him in the Netherlands, thus enabling the applicant 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 applicant and his minor children.

The Court notes that in the present case the fact of G. and L.’s living apart from the applicant since 1977 and from their mother since 1989 is the result of two subsequent and conscious decisions by the applicant to leave G. and L. in the Cape Verde Islands.

The Court further takes into account that G. and L. have substantial links with the Cape Verde Islands, where they were born and where they have always lived, and where they have been educated. The Court further notes that when the applicant applied for a provisional residence visa, G. and L. were sixteen and thirteen years old respectively, and had come of age when the present application was introduced.

In these circumstances, the Court is of the opinion that it cannot be said that the Netherlands authorities failed in their obligation to respect the applicant’s family life by not allowing G. and L. to take up residence in the Netherlands or that they failed to strike a fair balance between the interests involved (cf. Cincil v. the Netherlands , no. 39322/98, 19.1.1999; Kwakye-Nti and Dufie v. the Netherlands , no. 31519/96, 7.11.2000; and P.R. v. the Netherlands , no. 39391/97, 7.11.2000).

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Elisabeth Palm Registrar President