FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39391/98 by P.R. against the Netherlands

The European Court of Human Rights ( First Section) , sitting on 7 November 2000 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 with the European Commission of Human Rights on 31 October 1997 and registered on 16 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 applicant is a Cape Verdean and Dutch national, born in 1959 and living in the Netherlands. She 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.

On 3 March 1989 the applicant moved from the Cape Verde Islands to the Netherlands where she married a Dutch man. On the basis of the marriage she obtained a residence permit.

At the time the applicant came to the Netherlands she had three minor children, O.C. A.C. and S.D., who stayed behind in the Cape Verde Islands in the care of their grandmother.

On 3 December 1992 the applicant’s husband passed away. The applicant’s residence permit was subsequently withdrawn. She remained in the Netherlands, however, and in July 1995 she obtained Dutch citizenship.

On 27 November 1995 the applicant filed a request to the head of police ( korpschef ) of the Rotterdam Rijnmond region for a provisional entry visa ( machtiging tot voorlopig verblijf ) for her three children. The request was forwarded for consideration on the merits to the Visa Department ( Visadienst ) of the Ministry of Foreign Affairs. At the time of the request the children were 17, 13 and 11 years of age respectively.

On 19 January 1996 the Visa Department, on behalf of the Minister of Foreign Affairs, rejected the applicant’s request. The Visa Department concluded that the family ties had been broken since, after the applicant had left, the children had been living with the grandmother and were being brought up by her. There was no indication that this situation could not be maintained. Moreover, the applicant had not shown that she had been involved with the upbringing and care of the children. The fact that the applicant had regularly transferred money to the Cape Verde Islands was insufficient to assume that family ties had continued to exist.

The decision further stated, in accordance with national aliens policy, that, apart from international obligations, aliens could only be allowed for residence in the Netherlands 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 met in the case of the applicant’s children.

On 15 February 1996 the applicant filed an objection ( bezwaar ) through her counsel to the head of the Visa Department with respect to her two youngest children, M.C. and S.D.. On 29 March 1996 she filed additional grounds for her request which emphasised the applicant’s special and emotional ties with her children. The explanation given for the time elapsed between the applicant’s departure from the Cape Verde Islands and the request for entry of her children (6.5 years) was that the applicant had waited for naturalisation before applying for family reunification. The applicant submitted that she had been back to the Cape Verde Islands twice, in 1993 and 1996, to visit her children, that she made monthly phone calls to her children, that she received child benefits in the Netherlands and had made 12 money transfers for her children between 3 October 1991 and 26 March 1996. She moreover held that her mother, who was 61 and suffering from a nervous disease - for which the applicant submitted a medical certificate - was unable to provide further care for the children.

On 9 May 1996 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 with a view to her objection.

On 9 August 1996 the Minister of Foreign Affairs rejected the applicant’s objection concluding that, other than mere kinship, no special relationship could be distinguished between the applicant and the children. Furthermore, as regards the care of the children in the Cape Verde Islands, the applicant had not sufficiently shown why her mother, in spite of her disease, would not be able to continue taking care of the children. Moreover, the Minister established that a brother and sister of the applicant’s children who were of age were living with the applicant’s minor children at the same address and they could contribute to their care.

The applicant lodged an appeal on behalf of her children with the Aliens Chamber of the Hague Regional Court sitting in Haarlem ( Arrondissementsrechtbank te ‘s- Gravenhage zittinghoudende in Haarlem , Enkelvoudige Kamer voor Vreemdelingenzaken ). She invoked, among others, Article 8 of the Convention in support of her claim.

On 15 May 1997 the Regional Court rejected the appeal as unsubstantiated. It held that the children in fact did no longer belong to the applicant’s family. It dismissed the argument of the applicant’s uncertain status in the Netherlands before her naturalisation, with a reference to the fact that she had not tried to get her children to come to the Netherlands when her Dutch husband was still alive. The Regional Court further held that the financial contributions made by the applicant could not be considered as a real contribution to the care and upbringing of the children. It stated that no evidence had been produced as to the mentioned phone calls from the applicant to the children and also that the applicant had only visited the children twice after her departure. The Regional Court assessed that the applicant had brought the family’s living as a unit to an end when she decided to leave the Cape Verde Islands and come to the Netherlands. The Regional Court concluded that no other special relation had further been established between the applicant and her children and that therefore the family ties between applicant and her children should be considered to have ceased to exist. It found no grounds therefore to grant admission for family reunification.

The Regional Court dismissed the claim for admission of the children on humanitarian grounds since it had not been shown that care for the children could not be continued in the Cape Verde Islands.

When assessing whether the State’s actions had been in compliance with the requirements of Article 8 of the Convention the Regional Court firstly acknowledged that there was “family life” in terms of that provision. It reasoned, with reference to the Gül v. Switzerland judgement of 19 February 1996 and the Ahmut v. the Netherlands judgement of 28 November 1998, that its task was to strike a balance between the interests of the applicant and those of the society as a whole (the latter interest being the necessity of a restrictive immigration policy). The Regional Court finally concluded in the light of the Court’s jurisprudence that the applicant’s choice of family life had been one of not being with her children and that if the applicant wished to re-establish direct family life with her children, this would also be possible in the Cape Verde Islands.

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

B. Relevant domestic law

Article 11 of the Aliens Law ( Vreemdelingenwet ) provides that the Minister of Justice  ( Minister van Justitie ) decides on 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.

COMPLAINT

The applicant complains under Article 8 of the Convention that entry and residence in the Netherlands for the purpose of family reunification was refused to her minor children, M.C. and S.D., due to which she cannot enjoy family life with her children in the Netherlands.

THE LAW

Article 8 of the Convention provides as follows:

“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 minor children to settle with their mother 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 her minor children.

The Court notes that in the present case the fact of the applicant living apart from her children from 1989 until 1995 was the result of her initial conscious decision to come to the Netherlands and subsequently settle with her Dutch husband rather than remain in the Cape Verde Islands with her children. Moreover, the applicant had first requested entry for her children more than six years after her arrival to the Netherlands whereas this could have been done already between 1989 and 1992 at the time when the applicant’s husband was still alive and the applicant’s residence status was certain.

The respondent State’s refusal to allow entry and provisional residence to the applicant’s children, does not prevent the applicant from maintaining the degree of family life which she herself opted for when moving to the Netherlands in the first place, nor are there strictly speaking obstacles preventing the applicant and her children from developing their family life in the Cape Verde Islands. Although the applicant would now prefer to maintain and intensify her 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 the circumstances the respondent 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 is therefore no appearance of a violation of the applicant's right to respect for family life in respect of her two minor children M.C. and S.D. within the meaning of Article 8 of the Convention.

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

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President