Communicated on 17 November 2014

THIRD SECTION

Application no. 25392/14 Tahir CERCI against the Netherlands lodged on 22 March 2014

STATEMENT OF FACTS

1 . The applicant, Mr Tahir Çerçi , is a Tu rkish national, who was born in 1962 and lives in The Hague. He is represented before the Court by Mr A.J. Eertink , a lawyer practising in The Hague.

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . The applicant arrived in the Netherlands in September 1981 at the age of 19. Since his arrival in the Netherlands, the applicant has always lived in The Hague, where his uncle and Turkish friends live as well.

4 . On 5 April 1983, the applicant married a Dutch national and, shortly afterwards, was granted a residence permit for the purposes of residing in the Netherlands with his wife. Of this marriage two children were born in 1984 and 1988 respectively. The couple divorced on 15 April 1988, after which the applicant was granted a residence permit for employment purposes.

5 . On 18 February 1992, the applicant ’ s request of 29 May 1991 for a prolongation of his residence permit for employment purposes was rejected, apparently because the applicant had failed to respond to repeated requests to present himself to the immigration authorities. It also appears that the Immigration and Naturalisation Service ( Immigratie - en Naturalisatiedienst ) treated the applicant ’ s request as a request for a new residence permit instead of a prolongation request. This decision was sent by registered post to the applicant ’ s last-known address on 6 March 1992; it appears however that it did not reach the applicant as he was detained at that time.

6 . On 2 November 1992, the applicant was convicted of multiple offences under the Opium Act and sentenced to 6 years ’ imprisonment, which sentence he served from 15 September 1991 to an unspecified date in September 1995, when he was released.

7 . On 16 November 1995 the applicant went to the aliens ’ police to ask why he had not yet had a reply to his request of 29 May 1991 for prolongation of his residence permit. The aliens ’ police crossed out the stamp, that had been placed in the applicant ’ s passport to attest to the fact that he had lodged that request, and gave the applicant a new form, containing a request for a residence permit for the purpose of working in salaried employment, to sign. On 18 March 1996 the Deputy Minister of Justice ( staatssecretaris van Justitie ) rejected the new request for a residence permit and simultaneously imposed an exclusion order ( ongewenstverklaring ) on the applicant as he was considered to pose a threat to public order given his criminal conviction. As regards the applicant ’ s family life with his children it was noted that he had not submitted any documents relating to this family life, that it had not appeared that the applicant made any financial contribution to the care for and upbringing of his children and it was moreover not known whether the applicant had (auxiliary) guardianship ( ( toeziende ) voogdij ) of his children.

8 . The applicant lodged an objection ( bezwaar ) against the rejection of his request for a residence permit; he requested the Deputy Minister of Justice to review the decision of 18 March 1996, arguing as regards the exclusion order that he had daily contacts with his two children as well as with his ex-wife. The relationship with his ex-wife had been resumed following his release from prison and the couple were considering getting married again. His children as well as his ex-wife had always visited him in prison.

9 . Meanwhile, on 27 December 1995 a copy of the decision of 18 February 1992, refusing to prolong his residence permit, had been issued to the applicant; on 15 January 1996 he had filed an administrative appeal ( administratief beroep ) against it, arguing that he had not previously been aware of the decision.

10 . On 18 April 1997, the Deputy Minister of Justice declared the administrative appeal inadmissible as having been lodged out of time and dismissed the applicant ’ s objection.

11 . The applicant lodged an appeal ( beroep ) against the Deputy Minister ’ s decision with the Regional Court ( arrondissementsrechtbank ) of The Hague. By judgment of 24 November 1997, the Regional Court upheld the appeal but only in respect of an inconsistency found in the Deputy Minister ’ s decision relating to the applicant ’ s residence status from 9 March 1988. The Regional Court dismissed the remainder of the appeal and held in particular that the Deputy Minister ’ s decision to deny the applicant a further residence permit and to impose an exclusion order on him was reasonable considering the circumstances.

12 . On 28 April 2010, the applicant was placed in aliens ’ detention ( vreemdelingenbewaring ) for removal purposes on the basis of the exclusion order (no steps to deport the applicant apparently having been taken prior to this). On 29 April 2010, the applicant filed an appeal against his placement in aliens ’ detention with the Regional Court of The Hague, which dismissed it by judgment of 17 May 2010. The applicant lodged a further appeal ( hoger beroep ) with the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ), which was dismissed on 17 June 2010 on summary grounds.

13 . On 3 May 2010, the applicant filed an objection against the decision of 18 March 1996 in so far as it concerned the imposition of the exclusion order. On 6 May 2010 he filed an objection against his removal, which was scheduled for 8 May 2010. On the same day, the applicant also filed a request for a provisional measure ( voorlopige voorziening ) to the effect that the exclusion order be suspended pending the proceedings on the objection lodged on 3 May 2010. This request was granted by the provisional-measures judge ( voorzieningenrechter ) of the Regional Court of The Hague on 7 May 2010.

14 . On 15 June 2010, the Minister of Justice ( minister van Justitie ; the successor to the Deputy Minister of Justice) declared the applicant ’ s objection against the imposition of the exclusion order inadmissible, holding against the applicant that he had not filed a further appeal against the judgment of the Regional Court of 24 November 1997.

15 . On 27 June 2010, the applicant applied for asylum, which application was rejected by the Minister of Justice on 2 July 2010. The applicant lodged appeal against that decision. On 30 July 2010, the Regional Court of The Hague, sitting in Amsterdam, declared the appeal inadmissible, holding, inter alia , that the imposed exclusion order stood in the way of the applicant being granted asylum.

16 . Meanwhile, on 30 June 2010, the applicant had filed a request for the exclusion order to be lifted. The Minister of Justice rejected that request on 2 July 2010, finding no grounds to lift the exclusion order, nor any special, individual circumstances within the ambit of Article 8 of the Convention which prevailed over the interests of public order.

17 . On 29 July 2010, the applicant lodged an objection against the refusal to lift the exclusion order.

18 . The removal to Turkey of the applicant – who was still being held in aliens ’ detention – was scheduled for 30 July 2010. However, a request for a provisional measure to stay the applicant ’ s deportation was granted by the provisional-measures judge of the Regional Court of The Hague on 30 July 2010. The provisional-measures judge considered inter alia that a substantive judicial review on the merits of the applicant ’ s Article 8 claim had not yet taken place, and the judge therefore ordered that the legal effects of the exclusion order be suspended until a decision on the objection lodged by the applicant against the refusal to lift the exclusion order had been rendered.

19 . On 6 September 2010, the applicant was released from aliens ’ detention by order of the Minister of Justice.

20 . At an unspecified date in the autumn of 2011, the applicant reunited with his ex-wife and they started living together again with their children. The applicant ’ s daughter moved back after a relationship she had been in ended and it appears that the applicant ’ s son has never moved out of the parental home. Both children are adults; they do not have a family of their own.

21 . On 22 March 2011, the Minister for Immigration, Integration and Asylum Policy ( minister voor Immigratie , Integratie en Asiel ; the successor to the Minister of Justice) rejected the applicant ’ s objection against the refusal to lift the exclusion order. The applicant filed an appeal with the Regional Court of The Hague; however, on 9 January 2012, the Minister withdrew the impugned decision, after which the applicant withdrew his appeal. On 31 January 2012, the Minister notified the applicant of his intention ( voornemen ) to lift the exclusion order but to impose a 10-year entry ban ( inreisverbod ) on the applicant. The Minister held that the submissions of the applicant during prior proceedings did not give cause for a different decision.

22 . On 13 February 2012, the applicant submitted his written comments ( zienswijze ) on the intention, contending that the intended entry ban would be in breach of Article 8 of the Convention, since the threat which he was said to pose to public order was solely based on his criminal conviction and, moreover, his interests, i.e. his private and family life developed in the Netherlands, outweighed the general interest. With regard to his family life, the applicant submitted that he was once more living with his ex-wife and that she was dependent on him due to her poor health conditions, both physical and psychological. It appears from the medical records submitted by the applicant that his ex-wife was suffering from a personality disorder and other various illnesses, such as chronic aches in the back, leg and stomach.

23 . On 19 June 2012, the Minister withdrew the exclusion order and imposed a 10-year entry ban on the applicant. The Minister inter alia found no special circumstances warranting a different approach. More specifically, the Minister considered that although the health of the applicant ’ s ex-wife was unquestionably in a bad condition, the nature of her illnesses was not such that she was dependent on the applicant, especially since both adult children were living with her while her medical treatment would not be effected by the applicant ’ s departure. Furthermore, while recognising the applicant ’ s private life and his family life with his adult children in the Netherlands (although it was considered that there were no further elements of dependency involving more than the normal emotional ties between them) , the Minister reiterated that Article 8 of the Convention had not constituted an impediment to the imposition of the exclusion order. Finding that no changes of such significance had occurred that the imposition of an entry ban would lead to a violation of Article 8, the Minister dismissed the applicant ’ s arguments to that effect.

24 . The applicant lodged an appeal with the Regional Court of The Hague, arguing, in addition to his prior submissions, that the Minister had failed to conduct an ex nunc examination of his Article 8 claims. He referred inter alia to the Court ’ s judgment in A.A. v. the United Kingdom , no. 8000/08, 20 September 2011. The applicant contended that he had committed no further offences since his conviction in 1992 while his private and family life had developed further, which, in his submission, made the entry ban incompatible with Article 8.

25 . On 28 November 2012, the Regional Court of The Hague dismissed the applicant ’ s appeal. It held that in so far as the applicant claimed that Article 8 of the Convention should lead to him being allowed to reside in the Netherlands, this claim failed already because the proceedings at issue concerned an entry ban and not an obligation to leave the country. Moreover, it had not appeared that the applicant ’ s ex-wife and children would not be able to visit the applicant abroad. As regards the applicant ’ s private life, the Regional Court found that this did not warrant protection under Article 8 because for a substantial part he had built it up while an exclusion order was in place whereas he had not made any attempts to leave the Netherlands during that time.

26 . The applicant lodged a further appeal with the Administrative Jurisdiction Division of the Council of State, which dismissed that appeal on summary grounds on 23 September 2013.

COMPLAINTS

27 . The applicant complains under Article 8 of the Convention that the entry ban imposed on him violates his right to respect for his private and family life. Invoking Article 13 of the Convention, the applicant further complains that he did not have an effective domestic remedy for his complaint under Article 8.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his private and family life within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (see, in particular, A.A. v. the United Kingdom , no. 8000/08, § 63, 20 September 2011)?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?