Published on 19 April 2021

FOURTH SECTION

Application no. 47878/20 Eyni MUDE and Suleyman MOHAMED HUSSEIN against the Netherlands lodged on 21 October 2020 communicated on 31 March 2021

SUBJECT MATTER OF THE CASE

The application concerns family reunion between the first applicant, who has been granted asylum in the Netherlands, and her youngest son (the second applicant), who lives with her in the Netherlands but who has never had a residence permit. Residence permits for the purpose of family reunion have been granted to the first applicant ’ s other two sons.

Their application for family reunion based on Article 8 of the Convention, lodged when the second applicant was 20 years old, was rejected as the authorities were not satisfied that the relationship between them constituted family life within the meaning of that provision, considering that their actual core family ties had been severed when the second applicant, before joining his mother in the Netherlands, had entered into a marriage in Kenya.

Before the domestic courts the applicants – unsuccessfully – argued that the religious marriage entered into by the second applicant had not been legally valid under Kenyan law – and was therefore invalid also under private international law – as both parties had been underage; that it had only been concluded so that the teenage couple could see each other; that they had never lived together in their own place and that it had factually lasted for only five months, until the second applicant had left Kenya. He is no longer in contact with her.

The applicants complain under Article 8 of the Convention that the rejection of their application for family reunion constitute a violation of their right to respect for their family life.

QUESTIONS TO THE PARTIES

1. Is there family life within the meaning of Article 8 of the Convention between the applicants?

Alternatively, could it be said that the second applicant ’ s relationship with his mother no longer constituted family life within the meaning of Article 8 of the Convention because he had started a family of his own (see Azerkane v. the Netherlands , no. 3138/16, § 64, 2 June 2020)?

2. If there is family life between the applicants, does Article 8 of the Convention impose a positive obligation on the Netherlands authorities to allow the applicants to enjoy family life on its territory?

3. In the Netherlands would an alien be eligible for a residence permit for the purpose of family reunion with his or her lawfully residing spouse on the basis of a religious marriage that is not considered legally valid under either private international law or the law of the country where it had been concluded? If not, was it justified to attach consequences to the fact that the applicant in the present case had entered into such a marriage?