Communicated on 17 December 2020 Published on 11 January 2021

FOURTH SECTION

Application no. 39513/20 Namahoro Francine KAMALIZA against the Netherlands lodged on 28 August 2020

SUBJECT MATTER OF THE CASE

The application concerns family reunification with minor siblings. The applicant is a national from the Democratic Republic of Congo (DRC) who was granted asylum in the Netherlands. In December 2015 she filed an application for family reunion, based on Article 8 of the Convention, in respect of her four minor siblings (aged 13, 10, 8 and 5 at that time), who had also fled the DRC and were staying in Uganda without a residence permit, and for whom the applicant was providing financial and emotional support.

With the approval of the applicant, the immigration authorities modified the application into an application for asylum-related family reunion ( nareis ), a special type of family reunion in Dutch law for which different conditions for eligibility apply than for family reunion based on Article 8 of the Convention. According to the applicable policy rules, a person who has been granted asylum in the Netherlands may apply for asylum-related family reunion in respect of his or her (foster) children, but not in respect of siblings. As the applicant submitted that she had become responsible for her siblings and had taken care of them after the murder of their parents and elder sister in 2012, the immigration authorities regarded her as “foster mother” when examining the request.

The application was however rejected as the authorities found that it was not the applicant but her grandmother – who had come to live with the applicant and her siblings after the death of their parents (and who had also been murdered in 2013) – who should be considered as having become the children ’ s foster mother. Appeals against this decision were unsuccessful.

The applicant complains under Article 8 of the Convention that the rejection of her application for family reunion constitutes a violation of her right to respect for her family life.

QUESTIONS TO THE PARTIES

1. Is there family life within the meaning of Article 8 of the Convention between the applicant and her minor siblings?

2. If so, does Article 8 of the Convention impose a positive obligation on the Netherlands authorities to allow the applicants and her siblings to enjoy family life on its territory?

3. When examining the applicant ’ s request for family reunification, did the competent authorities take account of the applicant ’ s and her siblings ’ vulnerability and their particularly difficult situation (see e.g. Tanda ‑ Muzinga v. France , no. 2260/10, § 75, 10 July 2014)?