DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

To my regret, I have not been able to agree with my colleagues who have found a violation of Article 8 (art. 8) of the Convention in this case. I can agree with the judgment with the sole exception of paragraph 29. It is therefore not necessary for me to elaborate on the issues where I share the opinion of the majority of the Court, namely that there was family life between the applicants, that the first applicant, Mr. Abdellah Berrehab, was treated in accordance with the Aliens Act 1965 and other applicable rules and that the legislation pursues a legitimate aim. There remains the question of whether the interference complained of was "necessary in a democratic society". As already indicated, I have no comments to make on what is stated on this point in paragraph 28 of the judgment. As to the final assessment of whether or not there was a violation of Article 8 (art. 8), I would make the following observations.

The policy of the Netherlands in the field at issue here is set out in detailed rules found in or based on the 1965 Act, as amended. The amendments have been made in the light of experience and there has been a tendency to enable persons of foreign nationality who have certain family ties with Netherlands citizens to take up residence in the Netherlands . As already indicated, the rules pursue a legitimate aim. It may be added that the problem of immigration and residence of foreigners is a very important issue and there is no doubt that restrictions are unavoidable. Generally speaking, in this field the Government must have a wide margin of appreciation when formulating their policy and the necessary legal rules.

Against this have to be weighed the rights embodied in the first paragraph of Article 8 (art. 8-1). There are two applicants, the father and his daughter. It was the father who had to leave the Netherlands and who had dealings with that country ’ s authorities. As stated in the judgment, he and the mother of his daughter had been married to each other, but they had been divorced by the time their child was born. They did not live together. The mother and the first applicant agreed that he should see his daughter frequently and regularly and it must be assumed that he did so during the relevant period. He was also formally appointed an auxiliary guardian of his daughter. Notwithstanding their contacts, which constituted family life, I nevertheless find, taking into account the circumstances that the applicants did not live in the same home and that the parents of the child were not married to each other at the relevant time, that on balance the first applicant ’ s rights did not outweigh the respondent State ’ s interests recognised in paragraph 2 of Article 8 (art. 8-2). This conclusion is supported by the fact that the contacts between the two applicants were not completely terminated after the first applicant left the Netherlands .

As to the rights of the second applicant, the daughter, it seems that they were not considered by the Netherlands authorities who dealt with the first applicant ’ s case. That in itself did not, in my opinion, give rise to a violation of Article 8 (art. 8). I take the view that the Court must assess the competing rights and interests independently. It should be noted that the second applicant was a young girl when her father had to leave the Netherlands . The family life she had enjoyed with him was limited to what he had agreed with the mother. The child had hardly any voice on the scope of her contacts with her father and the respondent State could not alter that situation by any positive action on its part. Thus, her situation was very precarious. In my opinion, this is an argument in favour of the respondent State ’ s position in this case. Taking into account the family situation already described, I have come to the conclusion that neither the rights of the second applicant, taken alone, or the combined rights of the two applicants can lead to a finding of a breach of Article 8 (art. 8).

It should be mentioned that I have, in accordance with the practice in this Court, voted on the question of Article 50 (art. 50) on the basis that there was a violation of Article 8 (art. 8) as decided by the majority.

[*]  Note by the Registrar: The case is numbered 3/1987/126/177.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.