Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13654/88

by R.

against the Netherlands

The European Commission of Human Rights sitting in private

on 8 September 1988, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 January 1988

by R. against the Netherlands and registered on 9 March 1988 under

file No. 13654/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts as presented by the applicants may be summarised as

follows.

The applicants are sisters of Moroccan nationality, born in

Morocco on 17 December 1964 and 27 April 1966 respectively. Since

1987 they have been employed by office-cleaning firms in the

Netherlands. Before the Commission they are represented by

Mr. S. LAND, a lawyer practising in Amsterdam.

On 1 February 1968 the applicants' parents divorced. The

mother was awarded custody of the two children. They have no contact

with the father. After the divorce the mother and the applicants went

to live with the applicants' maternal grandmother in Morocco.

In 1976 the mother went to the Netherlands and married for a

second, and subsequently for a third, time. On 17 July 1985 she was

granted a permanent residence permit, independent of that of her

husband.

The applicants remained with their grandmother in Morocco.

The mother made visits almost every year, usually for at least two

months. She paid for their food and schooling, brought clothes for

them from the Netherlands, and received a Dutch family allowance on

the basis of her daughters' dependence.

The first applicant arrived in the Netherlands in September 1984

and the second in November 1985. They were both nineteen years old

when they arrived. They requested a residence permit on grounds of

family reunification on 14 November 1984 and 18 December 1985

respectively. Both requests were refused on 8 April 1987. Their

requests for a review were denied on 11 August 1987.

Thereupon they appealed to the Council of State (Raad van

State). The Deputy Minister of Justice denied suspensive effect to

these proceedings on 10 September 1987. The applicants instituted

summary proceedings with the President of the Regional Court

(Arrondissementsrechtbank) of Amsterdam, requesting suspensive effect

for the proceedings before the Council of State. This was denied on

5 November 1987. An appeal to the Court of Appeal (Gerechtshof) is

pending but has no suspensive effect.

The applicants are now apparently in hiding in the Netherlands

to avoid expulsion to Morocco. Their grandmother is seriously ill and

no longer able to care for them. Their other relatives in Morocco are

poor and have many children of their own.

COMPLAINT

The applicants complain that they went to the Netherlands to

rejoin their mother. They maintain that their right to a family life

will be violated by the Netherlands if they are expelled. They state

that in Morocco it is impossible for two young girls to live on their

own, and that their relatives cannot take care of them, nor can their

mother return to Morocco.

They invoke Article 8 para. 1 of the Convention and submit that

the interference with their family life is not justified by paragraph 2

of Article 8.

THE LAW

The applicants have complained that by expelling them to

Morocco, the Netherlands will be interfering with their family life.

They have invoked Article 8 (Art. 8) of the Convention. This article

provides as follows:

"1. Everyone has the right to respect for his private

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

interest 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 Commission recalls that the Convention does not guarantee

a right to enter or reside in a particular country. However, the

Commission has also held that, in view of the right to respect for

family life ensured by Article 8 (Art. 8) of the Convention, the

exclusion of a person from a country in which his close relatives

reside may raise an issue under this provision of the Convention (cf.

e.g. No. 7816/79, Dec. 19.5.77, D.R. 9 p. 219 and No. 8245/78, Dec.

6.5.81, D.R. 24 p. 98).

In such cases, the Commission first examines whether such a

degree of dependency exists between the applicant and his relatives as

to give rise to the protection envisaged by Article 8 (Art. 8) of the

Convention (cf. Nos. 9214/80, 9473/81, 9474/81, Dec. 11.5.82, D.R. 29

p. 176).

The Commission notes that the applicants lived with their

mother until 1976. Their mother made frequent and long visits to them

in Morocco and paid for their upbringing and schooling, for which she

received a Dutch family allowance. They have been living with their

mother again since 1984 and 1985 respectively.

In these circumstances the Commission is satisfied that there

is family life between the applicants and their mother, within the

meaning of Article 8 para. 1 (Art. 8-1) of the Convention.

Consequently, the applicants' intended expulsion must be considered as

an interference with their right to respect for family life.

The question which remains to be examined is whether this

interference was justified under the second paragraph of Article 8

(Art. 8) of the Convention.

The Commission notes that the decision to refuse the applicants

a residence permit was taken on the basis of Dutch immigration policy

which lays down special conditions for the granting of residence

permits on the grounds of family reunification.

The Commission notes that the Dutch immigration policy

establishes these special conditions for the purpose of regulating the

labour market, and generally to restrict immigration into a densely

populated country. Thus, the legitimate aim pursued is the

preservation of the country's economic well-being, within the meaning

of paragraph 2 of Article 8 (Art. 8-2) of the Convention (see Eur.

Court H.R., Berrehab judgment of 21 June 1988, to be published in

Series A no. 138, para. 26).

Regarding the necessity of the interference in a democratic

society the Commission recalls that attention must be paid to the

proportionality between the seriousness of the interference and the

legitimate aim pursued (see above-mentioned Berrehab judgment, para.

29).

In the present case the applicants had lived in Morocco until

they were nineteen years old. They did not live with their mother

for eight and nine years, respectively, and did not follow her when

she left Morocco. They are at present twenty-two and twenty-three

years old and have relatives in Morocco.

A special feature of the present case is the applicants'

assertion that they, for cultural reasons, will have difficulty in

living alone in Morocco since their grandmother is seriously ill and

can no longer take care of them. Despite this humanitarian aspect of

the case, the Commission considers that, in the circumstances and in

view of the applicants' age, respect for the applicants' family life

does not outweigh valid considerations relating to Dutch immigration

policy.

The Commission considers, therefore, that the interference

cannot be said to be disproportionate to the legitimate aim pursued and

is justified as necessary in a democratic society within the meaning

of Article 8 para. 2 (Art. 8-2) of the Convention.

It follows that the application must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2 (Art.

27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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R. v. the NETHERLANDS

R. v. the NETHERLANDS