FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39003/97 by Hortence Jeannette KNEL and Mark Albert VEIRA against the Netherlands

The European Court of Human Rights (First Section) , sitting on 5 September 2000 as a Chamber composed of

Mr L. Ferrari Bravo, President , Mrs W. Thomassen, Mr Gaukur Jörundsson, 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 12 September 1997 and registered on 16 December 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 first applicant, Ms Knel , is the mother of the second applicant, Veira .  Both applicants are resident in Rotterdam.

Ms Knel had a relationship with Veira’s father out of which Veira was born on 17 December 1981.  It is alleged that this relationship was terminated soon after Veira’s birth, after which Veira lived with his mother Ms Knel .  At that time both applicants were resident in Surinam and had Surinam nationality.

Ms Knel married another man.  She and her husband moved to the Netherlands in 1985, leaving Veira with his paternal grandparents.  She now has Netherlands nationality. Veira still has Surinam nationality.

In 1987 Ms Knel applied to the Minister for Foreign Affairs for a provisional residence visa ( machtiging tot voorlopig verblijf ) in Veira’s name.  Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights.

By a letter dated 12 March 1987 the Visa Service of the Ministry of Justice informed the Netherlands embassy in Surinam that there was no objection to the grant of a provisional residence visa to Veira .  The applicants state that they were never informed of any decision, whether favourable or otherwise.  They did not, however, take proceedings on the basis of an implied refusal, as they might have done within a reasonable time if it appeared that a decision was not forthcoming.  It appears that Veira remained in Surinam.

A new request for a provisional residence visa was lodged in 1992, through the Netherlands embassy in the Surinam capital Paramaribo.  On 25 September 1992 the Minister for Foreign Affairs gave a decision refusing such a visa on the ground that Veira , having been resident with his grandparents since 1985, had ceased to be part of his mother’s family unit.

The applicants lodged an objection ( bezwaarschrift ) against this decision on 20 October 1992.  Following a hearing on 21 January 1993 the Minister for Foreign Affairs gave a decision on 15 March 1993 dismissing the objection.  This decision was transmitted to the embassy in Paramaribo.

The applicants lodged an appeal with the Judicial Division ( Afdeling rechtspraak ) of the Council of State ( Raad van State ) against the Minister’s decision on 8 April 1993.  This appeal was withdrawn on 21 June 1995.  It is stated that their reason for so acting was that Veira could not obtain a passport from the Surinam authorities, and that without a passport they did not expect the appeal to have any prospects of success.

As alleged by the applicants, the situation in Surinam had become untenable due to the deterioration of Veira’s grandparents’ health.  Ms Knel decided to bring Veira into the Netherlands without complying with the formalities, and on 22 October 1993 Veira entered the Netherlands.

On 13 October 1995, nearly two years after Veira had entered the Netherlands, Ms Knel applied in his name for a residence permit.  By a decision dated 22 March 1996 the Deputy Minister of Justice refused to grant such a permit.

On 3 June 1996 the applicants lodged an administrative appeal ( administratief beroep ) against the Deputy Minister’s refusal.  This was rejected on 13 December 1996.

The applicants appealed to the Regional Court ( Arrondissementsrechtbank ) of The Hague on 24 December 1996.

Following a hearing on 17 June 1997 the Regional Court dismissed the appeal on 21 June 1997.  The Regional Court considered that Veira could be cared for in Surinam by a sister of Veira’s father, with financial assistance from Ms Knel if need be, and that the applicant’s separation in 1985 had been a consequence of Ms Knel’s choices with regard to the way she had wished to lead her personal life.

It appears from a letter received from the applicants’ representative on 17 June 1998 that the Netherlands authorities were then contemplating removing Veira to Surinam.  However, the Court has not been informed that this has taken place.

COMPLAINT

The applicants allege a violation of their right to respect for their family life as guaranteed by Article 8 of the Convention.

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 Gül v. Switzerland judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, § 38).

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 (ibid.).

In order to establish the scope of the respondent State’s obligations, the facts of the case must be considered.

The present case hinges on the question whether the Netherlands authorities were under a duty to allow Veira to reside with his mother in the Netherlands, thus enabling the applicants to maintain and develop family life in their territory.  The Court must examine whether in refusing to do so the respondent State can be said to have struck a fair balance between the applicants’ interests on the one hand and its own interest in controlling immigration on the other.

Veira was born in Surinam in December 1981.  After Ms Knel’s relationship with Veira’s father foundered, Ms Knel married another man.

In June 1985 Ms Knel and her husband moved to the Netherlands, leaving Veira , who was then three and a half years old, in the care of his father’s family.  It does not appear, nor has it been alleged, that her decision to act thus was anything other than deliberate.

The Court notes that Ms Knel made  a first attempt to obtain a provisional residence visa for Veira in 1987, at which time she had been living without Veira for approximately two years and Veira was not yet six years old.  By a letter dated 12 March 1987 the Visa Service of the Ministry of Justice informed the Netherlands embassy in Surinam that there was no objection to the grant of a provisional residence visa to Veira .  While it may be so that Ms Knel was not informed of this, the fact remains that she did not pursue the visa application.

Only in 1992 did Ms Knel again attempt to obtain a provisional residence visa for Veira .  These proceedings were not pursued to a conclusion either, this time because Ms Knel withdrew her appeal against a refusal.

Veira entered the Netherlands in October 1993 without complying with the relevant formalities.  As far as the Court is aware, he has been living in the Netherlands as an illegal immigrant ever since.

In October 1995, two years later, Ms Knel applied for a residence permit in Veira’s name.  She was met with a refusal.

At the conclusion of the domestic proceedings, in June 1997, Veira was fifteen and a half years old.  By the time the Netherlands authorities informed the applicants that they wished to remove Veira to Surinam, which would appear to have been around June 1998, he was approximately sixteen and a half years old and therefore presumably not as much in need of care as a young child.

Although the Court appreciates that 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 to choose the most suitable place to develop family life.  In this connection the Court notes that the fact of the applicants' living apart from June 1985 until October 1993 was apparently the result of Ms Knel’s initial conscious decision to settle in the Netherlands with her husband rather than remain in Surinam with her son.

In these circumstances the respondent 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.

It follows that no violation of Article 8 can be found on the facts of the present case and that the application is manifestly ill-founded.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

         Michael O’Boyle        Luigi Ferrari Bravo

   Registrar                                                                           President