3 September 2010

THIRD SECTION

Application no. 45558/09 by Firay GEREGHIHER GEREMEDHIN against the Netherlands lodged on 17 August 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Firay Gereghiher Geremedhin, hails from Eritrea where he was born in 1971 . He lives in Rotterdam and is represented before the Court by Mr C.F. Wassenaar, a lawyer practising in Rotterdam .

The circumstances of the case

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

In the late nineties, whilst the applicant was serving in the Eritrean military, his spouse Yorisalem fell ill. The applicant was denied permission to visit her, allegedly because of the ongoing state of emergency in Eritrea . After the death of applicant ' s spouse in July 2002, their four children, Filmon (born in 1990), Mary (born in 1993), Robel (born in 1994) and Henok (born in 1995), were taken into the care of their paternal grandparents in Eritrea as the applicant was refused a discharge from the army for the purpose of taking care of his children.

Later in 2002, the applicant married Mislal, his current spouse, and in 2003 their son Hannibal was born. Having grown increasingly frustrated with the policies of the Eritrean Government and his unsuccessful requests for a discharge from the military, the applicant and his wife fled in June 2004 to Saudi Arabia where they applied for asylum. In October 2004, they were recognised by the United Nations High Commissioner for Refugees (“UNHCR”) as refugees under the 1951 Convention on the Status of Refugees. The applicant ' s four children from his first marriage and Hannibal had remained in Eritrea with the applicant ' s parents.

During the stay of the applicant and his spouse in Saudi Arabia , their daughter Betlehem was born in January 2005. She is suffering from congenital hydrocephalus and a congenital heart condition.

At the request of the UNHCR, the applicant, his spouse and their child Betlehem were resettled as quota refugees in the Netherlands where, on 6 November 2007, they were granted asylum residence permits. On 28 January 2008, the applicant ' s spouse filed a request for advice on the issuance of a provisional residence visa ( machtiging tot voorlopig verblijf ) for the purpose of family reunion in the Netherlands with Hannibal .

On 28 November 2008, the applicant filed a request for advice on the issuance of a provisional residence visa ( machtiging tot voorlopig verblijf ) for the purpose of family reunion in the Netherlands in respect of his four children born out of his first marriage.

On an unspecified date, the applicant ' s five children left Eritrea for Sudan as their grandparents were getting too old to care for them. They ended up in the Shagarab refugee camp in eastern Sudan , where they were registered as refugees after a refugee status determination carried out jointly by the UNHCR and the Government of Sudan.

On 9 March 2009, the Visa Service ( Visadienst ) of the Netherlands Ministry of Foreign Affairs issued a positive recommendation as to the request concerning Hannibal, provided inter alia that it would be demonstrated by way of official documents that the applicant ' s spouse was holding legal custody ( rechtmatig gezag ) over Hannibal. However, as he lacked official documents demonstrating his family tie with the applicant and his spouse, Hannibal was considered to find himself in a situation in which – through no fault of his own – he was hampered by a lack of evidence ( bewijsnood ). He was therefore offered the possibility to demonstrate this kinship by means of a DNA test for which he had to travel to the Netherlands mission in Khartoum . Following a delay caused by logistical problems, he was eventually taken to the Netherlands mission in Khartoum – accompanied by a UNHCR staff member – to provide a DNA sample. On 15 December 2009, the Netherlands mission reported that the results of the DNA test showed a strong probability verging on certainty that Hannibal was the applicant ' s son. Consequently, he could be admitted to the Netherlands and a provisional residence permit issued. On 31 January 2010, the Netherlands mission in Khartoum provided applicant ' s son Hannibal with travel documents allowing him to travel to the Netherlands .

In a separate decision taken on 9 March 2009, On 9 March 2009, the Visa Service of the Netherlands Ministry of Foreign Affairs issued a negative recommendation as regards the applicant ' s four children born out of his first marriage. Unlike Hannibal , they were found not to have formed a part of the applicant ' s family unit ( gezin ) when in June 2004 the applicant and his wife had left Sudan but had belonged to the family unit of the applicant ' s parents since the death of their mother. Accordingly, there were doubts as to the alleged relationship of dependency between the applicant and these four children. It was further found that there were no special facts or circumstances giving raise to a positive obligation under Article 8 of the Convention to admit these four children to the Netherlands . As stated at the bottom of this decision, according to settled case law of the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State, no appeal lies against an advise given by the Visa Service in respect of the issuance of a provisional residence permit. According to this case law, such an advice is merely a recommendation and not a decision within the meaning of the General Administrative Law Act ( Algemene Wet Bestuursrecht ).

To date, neither the applicant nor the four children currently staying in Sudan have filed a formal request for the issuance of a provisional residence permit for the purpose of family reunion in the Netherlands .

According to a medical statement, drawn up on 24 September 2009 by a doctor at the Utrecht Wilhelmina Children ' s Hospital, Betlehem had stayed as a patient in this hospital from 30 November 2008 to 1 May 2009 and that her medical condition did not allow a return to Sudan .

COMPLAINTS

The applicant complains under Article 8 of the Convention that his four children born out of his first marriage are not allowed to settle with him in the Netherlands whereas he is their sole remaining parent and whilst the medical condition of his daughter Betlehem who requires constant medical care renders impossible the exercise of family life in Sudan where these four children are currently living, being cared for by the UNHCR.

The applicant further complains that, as regards his complaint under Article 8, he did not have an effective remedy within the meaning of Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Have domestic remedies been exhausted as required by Article 35 § 1 of the Convention?

2. Is it compatible with the applicant ' s right to respect for family life guaranteed by Article 8 of the Convention that the applicable immigration rules do not allow his four children born out of his first marriage and currently living in a refugee camp in Sudan to join him in the Netherlands?