JOINT DISSENTING OPINION OF JUDGES VILLIGER, MAHONEY AND SILVIS

1. Understanding the judgment in the present case in the context of the Court’s case-law is not an easy task, since the exceptional character of the particular circumstances seems to override most of the previously followed jurisprudential principles. We were unable to follow the majority in finding that the domestic authorities failed to live up to a positive obligation by not granting the applicant residence in the Netherlands upon any of her repetitive requests. These requests for residence were lodged on various grounds, and filed from Dutch territory during an illegal overstay after expiration of a short-term tourist visa. From one point of view – that of the present dissenters – the Court can be seen to be acting as a first-instance immigration court, in disregard of the principle of subsidiarity; although, in all fairness, the rejoinder to that criticism is presumably that the Court has merely taken the approach of granting paramount importance to the best interests of the children. Is the Court striking the right balance, while the respondent State had failed to do so? Who is to perform such a balancing exercise going into the factual, detailed merits of the applicant’s individual circumstances? Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court should require strong reasons to substitute its own view for that of the domestic courts (see Von Hannover v. Germany (No. 2) , nos. 40660/08 and 60641/08, § 107).

2. In summary, the facts are as follows. The applicant, a Surinamese woman, was allowed to enter the Netherlands only once for a limited period of 45 days for the declared purpose of a tourist visit to an aunt in 1997. After expiration of her visa she overstayed illegally in the Netherlands. The applicant then repeatedly requested legal residence and all of these requests were ultimately refused, while one such request is still pending. In the meantime, the applicant had started building a family life in the Netherlands despite having no legitimate expectation of being granted permanent legal residence in the country, a factor that was at all times perfectly well known to herself and her partner. Her partner/husband is of Surinamese origin and holds Dutch nationality. Both of them have lived most of their lives in Suriname, and indeed they cohabited there before coming to the Netherlands. The applicant and her husband have three children, all holding Dutch nationality by virtue of their father’s nationality. The applicant, her husband and her children have led a continuous family life together in the Netherlands in the period under consideration. The children have never visited Suriname. The official language of Suriname is Dutch.

3. At the outset it is important to observe that the subject-matter of the Court’s judgment is not interference in family life by the State. Rather, the judgment goes to the issue of the Contracting States’ positive obligations regarding family life in the sphere of immigration. If this judgment is to be taken as establishing principled guidelines, it (a) expands the positive obligations incumbent on the State under the Convention in the interface of immigration and family law, (b) thus shrinks the margin of appreciation in relation to family life created during illegal overstay, (c) virtually disregards the attitude of the applicant as a relevant matter of consideration, (d) upgrades the obligation to take into account the best interests of the children. However, it must be observed that most of these seemingly fundamental jurisprudential developments are not reflected in the applicable general principles as hitherto formulated by the Court in its case-law and reiterated in the current judgment. They appear only under the surface in the application of these principles to the facts of the case. Perhaps this judgment by the Grand Chamber is not to be taken as establishing principled guidelines? Such ambiguity would be a worrying signal for the future performance of the Court’s advisory role under Protocol No. 16.

4. The underlying question of principle is whether foreign nationals have a claim, on the basis of Article 8 of the Convention, to obtain from a Contracting State permission to enter and/or reside on the latter’s territory in order to join or remain with their relatives who have legal residence there. In the Court’s longstanding case-law this question is answered mainly in the negative. True, the Court does acknowledge that Article 8 is capable of being applicable under its family-life head, but it has concluded most of the time that the immigration treatment accorded to these persons was not such as to violate this provision, regard being had to their situation and the general interest of the community. The overriding consideration highlighted in this case-law is that they are foreign nationals, that is to say members of a category in respect of whom the States enjoy, under international law, as is stressed in all the relevant decisions, a virtually absolute right of control over entry into their territory and discretionary power in the matter of admission and residence. The Convention does not guarantee the right of a foreign national to enter or to reside in a particular country (see, for instance, Nunez v. Norway , no. 55597/09, § 66, 28 June 2011); and it does not prevent the Contracting States from enacting into law and enforcing a strict, even very strict, immigration policy. In concrete terms, the Court has taken the stance that a Contracting State is not obliged under the Convention to accept foreign nationals and permit them to settle except in cases where family life could not be lived elsewhere than on its soil. In the great majority of cases, it has pointed out that such family life could flourish in another country.

5. Thus, having chosen not to apply for a provisional residence visa from Suriname prior to travelling to the Netherlands, the applicant had no right whatsoever to expect to obtain any right of residence by confronting the Netherlands authorities with her presence in the country as a fait accompli (see Ramos Andrade v. the Netherlands (dec.), no. 53675/00, 6 July 2004; Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003; Adnane v. the Netherlands (dec.), no. 50568/99, 6 November 2001; Mensah v. the Netherlands (dec.), no. 47042/99, 9 October 2001 ; Lahnifi v. the Netherlands (dec.), no. 39329/98; 13 February 2001; and Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000). However, taking into account the particulars of the case, the Court considers that granting residence to the applicant on the territory of the Netherlands is the only appropriate way to respect her family life and that, by not taking such a decision to grant residence, the national authorities have failed to meet the positive obligation which Article 8 placed on them.

6. Two other cases spring to mind in which the Court may seem to have taken a somewhat similar position; both concerned the Netherlands ( Tuquabo-Tekle and Others v. the Netherlands , no. 60665/00; and Şen c. les Pays Bas , no. 31465/96 – the last mentioned decision not being available in English and not being cited by the Court in the present judgment). Both of these cases concerned the reunification of families by admitting a child to the territory of the host State (the Netherlands) where the parent or parents had legal residence. The integration of the children concerned into the family unit was regarded as necessary for their development in view of their young age (nine years in Şen and fifteen years in Tuquabo-Tekle and Others ). It should be observed that neither of these two cases concerned family-formation during an illegal overstay in the host State, but that, on the contrary, in both instances the request to have the children enter the State was filed before they had entered the State, in compliance with the applicable immigration law – quite unlike the situation in the present case. In both of these previous cases, where the children themselves were applicants, the Court concluded that the Netherlands had a positive obligation to allow the children to reunify with their parent(s) lawfully on Dutch territory.

7. In the present case the original complaint of the applicant was that the respondent State had not allowed her to file a request for residence from its territory. It is noteworthy that the Court has not changed its position on the legitimacy of the immigration condition contested by the applicant. It reiterates in paragraph 101 that, in principle, Contracting States have the right to require aliens seeking residence on their territory to make the appropriate request from abroad. This matter is not further addressed in the judgment because the Court, after having reformulated the complaint proprio motu (in paragraph 76 - the original complaint being set out in paragraph 77), decides on the merits that in the particular circumstances of the case denial of residence violates the obligation to respect family life. The particular circumstances taken into consideration by the Court are that the husband and children all hold Dutch nationality; that the children have always lived in the Netherlands; that the applicant’s husband provides for the family by working full-time in a job that includes shift work, with the consequence that he is absent from the home on some evenings; and that, as a result, the applicant is the primary care-taker of the children. What is remarkable is that the Court performs a balancing exercise of its own as regards the factual, detailed merits of the individual circumstances affecting the applicant, although it cannot be said that the domestic authorities did not themselves have full and careful regard to the relevant principles, considerations and aspects as developed in the Court’s case-law (see paragraph 34).

8. After years of legal battle the respondent State is reproached by the Court for having “tolerated” her presence as long as it did (paragraph 116), having allowed her the opportunity to raise a family. The Court equates the absence of a forced removal with tolerance of her presence. While this precarious situation continued for such a lengthy period of time, during which, according to the Court, for a large part it was open to the authorities to remove her, the applicant was enabled to establish and develop strong family, social and cultural ties in the Netherlands. The Court’s reasoning can hardly be understood as applying the principle that family-creation without having stable grounds for residence is at the risk of those who do so in a situation that is known to them to be precarious. The margin of appreciation, which was wide in such circumstances, has undergone a hot wash in this case.

9. Where parents make personal choices, the State’s positive obligations under Article 8 are generally spoken of as being of secondary importance and almost the same goes for facing consequences of deliberate acts. Thus, imprisonment of fathers sentenced for having committed a crime rarely raises issues under Article 8 of the Convention, even though their children are liable to suffer from it. The same goes for divorce. The present case, of course, is not at all about a committed crime or a divorce; nor is it about an eventual rupture of family life caused by the State. It is about a family wishing to establish a particular place of residence. What would be the perspective in cases of chosen emigration from the Netherlands in contrast with this case of refused residence? Many parents seek economic or other opportunities abroad; and nowadays Suriname is a notably popular destination. Even though children of such emigrants might prefer to stay where they reside, they would be obliged to follow their parents. In such cases of chosen emigration the State has generally speaking no positive obligation to intervene. It is commonly understood that respect for family life implies that the best interests of the children are then considered to be best served by accepting the consequences of the (lawful) choices made by their parents, unless fundamental rights of the children (such as those protected by Article 3) would thereby be violated. Shifting the responsibility for consequences of choices made by parents to the State is, in our view, in principle not conducive to the furtherance of the best interests of the children with regard to family life. There would also be a great risk that parents exploited the situation of their children in order to secure a residence permit for themselves (see Butt v. Norway , no. 47017/09, § 79).

10. On our analysis of the facts, the balancing exercise between the interests of the applicant and her family, on the one hand, and the general interest of the community, on the other, was performed by the national authorities, including the independent and impartial domestic courts, in a full and careful manner, in conformity with the well-established principles of the Court’s case-law. The majority holds a different view. The approach adopted by the Court in the present case in effect involves giving to those prospective immigrants who enter or remain in the country illegally and who do not properly and honestly comply with the prescribed conditions for seeking residence a special premium, in terms of Convention protection, over those who do respect the applicable immigration law by remaining in their country of origin and conscientiously complying with the procedures laid down for seeking residence. The result is liable to be to encourage illegal entry or over-staying and refusal to comply with the prescribed immigration procedures and judicially sanctioned orders to leave the country. The right answer in hard cases is the one that fulfils the obligation of the community to treat its members in a civilised but also coherent and principled manner. In replacing the domestic balancing exercise by a strong reliance on the exceptional character of the particular circumstances, the Court is drifting away from the subsidiary role assigned to it by the Convention, perhaps being guided more by what is humane, rather than by what is right.