Information Note on the Court’s case-law No. 82

January 2006

Rodrigues da Silva and Hoogkamer v. the Netherlands - 50435/99

Judgment 31.1.2006 [Section II]

Article 8

Article 8-1

Respect for family life

Respect for private life

Refusal to allow foreign mother to remain in the Netherlands, where she has been staying without holding a residence permit, in order to share in the care of Dutch child born there: violation

Facts : The first applicant, a Brazilian national, entered the Netherlands in 1994 and began cohabiting with a Dutch national without seeking a residence permit. A daughter, Rachael (the second applicant), was born to them in 1996 but in 1997 the couple split up. Parental authority over Rachael was awarded to her father, a decision later reversed by a regional court following the first applicant’s appeal. In 1998 the Supreme Court quashed the latter decision and referred the case to a court of appeal.

Meanwhile, in 1997 the first applicant sought a residence permit but this was refused in 1998. The Deputy Minister of Justice noted, in particular, that the first applicant, who was working illegally, did not pay taxes or social security contributions. The interests of the economic well-being of the country therefore outweighed her right to reside in the Netherlands. In 1999 a regional court upheld the refusal. Later that year the police informed the applicant that she had to leave the country within two weeks, although she remains in the country to this day.

In July 1999 the court of appeal awarded parental authority over Rachael to her father, a judgment upheld by the Supreme Court in 2000. The higher courts based their decisions on an expert report which stated that it would be a traumatic experience for the child to be uprooted from the Netherlands and separated from her father and paternal grandparents. In 2002 the first applicant again applied for a residence permit but this was again refused.

Law : The case concerned the domestic authorities’ refusal to allow the first applicant to reside in the Netherlands, where her stay has at no time been lawful. The question to be examined was therefore whether the authorities had a positive obligation to allow the first applicant to reside there, thus enabling the applicants to maintain and develop family life within Dutch territory. The Court noted that at the time the final decision on her application for a residence permit had been taken in 1999, the first applicant no longer had parental authority over Rachael as the Supreme Court had quashed the decision of the regional court to that effect. Moreover, from a very young age, Rachael had been raised jointly by the first applicant and her paternal grandparents, with her father playing a less prominent role. The refusal of a residence permit and the expulsion of the first applicant to Brazil would render it impossible for the applicants to maintain regular contacts. It was true that the applicant had not attempted to regularise her stay in the Netherlands until more than three years after first arriving in that country and her stay there had been illegal throughout. Persons who, without complying with the regulations in force, confront the authorities of a Contracting State with their presence in the country as a fait accompli do not, in general, have any entitlement to expect that a right of residence will be conferred upon them. Nevertheless, in the present case the Government had indicated that lawful residence in the Netherlands would have been possible on the basis of the fact that the first applicant and her former partner had had a lasting relationship between 1994 and 1997. Although a serious reproach had to be made of the first applicant’s cavalier attitude to Dutch immigration rules, this case fell to be distinguished from others in which the Court considered that the persons concerned could not at any time reasonably expect to be able to continue family life in the host country. In view of the far-reaching consequences which an expulsion would have on the responsibilities which the first applicant has as a mother, as well as on her family life with her young daughter, and taking into account that it is clearly in Rachael’s best interests for the first applicant to stay in the Netherlands, the Court considered that in the particular circumstances of the case the economic well-being of the country did not outweigh the applicants’ rights under Article 8, despite the fact that the first applicant had been residing illegally in the Netherlands at the time of Rachael’s birth. Indeed, by attaching such paramount importance to this latter element, the authorities could be considered to have indulged in excessive formalism and no fair balance had been struck between the different interests at stake.

Conclusion : violation (unanimously).

Article 41– The finding of a violation was held to be sufficient just satisfaction for the non-pecuniary damage sustained. The Court awarded a certain amount for costs and expenses incurred at domestic level.

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

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