Published on 21 March 2022

FOURTH SECTION

Application no. 44051/20 Usha KUMARI against the Netherlands lodged on 23 September 2020 communicated on 4 March 2022

SUBJECT MATTER OF THE CASE

The applicant is an Indian national, born in 1964, who suffers from multiple medical problems that make it difficult for her to take care of herself. Two of her three children – both adults – have legal stay in the Netherlands. Since 2012, when her husband died, she has been reliant on her sons in the Netherlands for support. She regularly visited them in the Netherlands on temporary visas and they regularly visit her in India to help her organise her daily life. This visit/travel-arrangement is complex because of her sons’ work- and family life in the Netherlands. Her two grandsons are living in the Netherlands and her granddaughter, born prematurely in 2014, is buried in that country. Her oldest son suffered from psychological problems subsequently, for which he received treatment and for which the applicant provided (psychological) support. Her sons also provide financial support to the applicant.

In November 2015 the applicant’s oldest son applied for a provisional residence visa ( machtiging tot voorlopig verblijf ) for the applicant in order to enable her to live with him in the Netherlands. Relying on Article 8 of the Convention, they argued that “more than the normal emotional ties” existed between them, consisting of, inter alia , the support they provide to each other.

The Deputy Minister of Justice and Security refused the application. He did not agree that the existence of “more than the normal emotional ties” between the applicant and her elder son had been established, as it did not appear that either of the two was “exclusively dependent” on the other. It had not been demonstrated that the applicant could not get by with support from others in India, including from her daughter who lived there. The Regional Court of The Hague allowed an administrative appeal because it found that the Deputy Minister had applied a too strict standard of assessment (toetsingsmaatstaf ) when examining the question whether there existed “family life” within the meaning of Article 8 of the Convention. The Administrative Jurisdiction Division of the Council of State , upon a further appeal lodged by the Deputy Minister, overturned this judgment. It held that, in accordance with inter alia the Court’s case law in Senchishak v. Finland, no. 5049/12, 18 November 2014, the Deputy Minister had rightly included the criterion of “exclusive dependence” in its assessment of the existence of family life.

The applicant complains under Article 8 of the Convention that the authorities failed to recognise family life within the meaning of that provision between her and her sons.

QUESTIONS TO THE PARTIES

Is there, given the specific circumstances of the case, “family life” within the meaning of Article 8 of the Convention between the applicant and her adult sons?

In particular, has the applicant demonstrated that there are “additional elements of dependence” ( see Slivenko v. Latvia [GC], no. 48321/99, § 97, ECHR 2003 ‑ X , and Senchishak v. Finland, no. 5049/12, 18 November 2014, §§ 55-57) between her and her sons?

When examining that question, did the competent authorities and the domestic courts take sufficiently into account all relevant elements?