Information Note on the Court’s case-law 53

May 2003

Chandra and Others v. the Netherlands (dec.) - 53102/99

Decision 13.5.2003 [Section II]

Article 8

Article 8-1

Respect for family life

Refusal of permanent residence permit for children who joined their mother in the Netherlands after 5 years’ absence: inadmissible

The first applicant, C., is a Netherlands national of Indonesian origin. The other applicants are her four children, born between 1979 and 1985, resident with her in the Netherlands. In 1992, C. sought a divorce from her husband, father of her four children. She left Indonesia and travelled to the Netherlands, where she met and settled with a Dutch na tional. The following year, she was granted a residence permit for the specific purpose of living with him. The children remained in Indonesia in their father’s care. C. was finally granted custody of the children in 1995. In 1996, C. obtained Dutch nation ality. The following year, the relationship with her partner ended. In March 1997, the children were granted a short stay visa for 90 days to visit their mother. They formally applied for a residence permit in May 1997 and have remained in the Netherlands ever since. Their application was rejected by the Deputy Minister of Justice, who considered that the close ties between C. and her children had been severed by their separation and that C. did not have the means to support them. Furthermore, there was no impediment to the family living together elsewhere. The applicants’ appeal to the Regional Court was unsuccessful. That court attached particular importance to the fact that it was only in 1997 that C. sought to be reunited with her children. The court did not accept that the refusal of residence permits interfered with the applicants’ rights under Article 8, since the case concerned first admission to the country rather than refusal to extend residence. It found that a proper balance had been struck betwee n the interests of the applicants and those of society as a whole.

Inadmissible under Article 8: The case hinged on the question of whether the authorities were under a duty to admit the children to reside with their mother in the Netherlands. C. had been away from her children for over five years before they joined her in 1997. Prior to their arrival in Europe, they had lived all their lives in Indonesia in the care of their father. They had therefore to be deemed to have strong links with the linguistic a nd cultural environment of their home country. By the time of the Regional Court’s ruling, two of the children had reached the age of majority, while the two youngest were 15 and 13 years and therefore in less need of care than younger children. Moreover, they had other relatives in Indonesia. While the applicants would prefer to remain in the Netherlands, Article 8 did not guarantee the right to choose the most suitable place for a family to live. It had not been established that C. could not return to Ind onesia with her children, settling far away from her former husband if necessary. The fact that the children had been in the Netherlands since 1997 did not impose a positive obligation on the authorities to allow them to settle permanently. The applicants were not entitled to expect that, by confronting the authorities with a fait accompli , a right of residence would be conferred upon them. The authorities had struck a fair balance between the applicants’ interests and those of society in controlling immigr ation: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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