DISSENTING OPINION OF JUDGE VALTICOS

(Translation)

The decision of the small majority of the Chamber who have held that there has been no breach of the Convention in the instant case is to be regretted.

Few human rights are as important as a father ’ s right to have his son by him, to guide him, to supervise his education and training and to help him choose and begin a career and as it were to prepare the projection of his own life into the future by contributing to a happy and productive life for his child.

Similarly, few rights are as important as an adolescent son ’ s right to live with his father and to take advantage of the atmosphere of affection as well as of the father ’ s help and advice.

Alongside these fundamental factors, the arguments in support of the Netherlands authorities ’ decision to separate the son from his father (arguments such as the actual length of the son ’ s visits to his father) do not weigh very heavily and even reflect a restrictive spirit incompatible with the very meaning of the Convention and the concept of human rights.

The fact that the son did not live with his father for very long is due to the vicissitudes of the father ’ s marriage, but it has been established that the father has always taken an interest in his son, has helped him and even had him come to stay with him in the Netherlands, even if only for a short period.

To these considerations, which should have been decisive, must be added a troubling feature. The father had acquired Netherlands nationality, and in any country, a national is entitled to have his son join him, even if the son does not have the same nationality. How does it come about that in the present case this right was refused him? I cannot think that it is because the Dutch father was called "Ahmut". However, the suspicion of discrimination must inevitably lurk in people ’ s minds.

It is to be hoped that the Netherlands Government will swiftly remedy this blunder.

DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE LOHMUS

1. I am unable to persuade myself that, as found by the majority, the Netherlands did not violate Article 8 (art. 8).

2. I am worried that, although this case could have easily been distinguished from that of Gül v. Switzerland (see the Court ’ s judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, p. 159), a Chamber composed for the most part of different members has chosen to follow that unfortunate precedent. In this context I refer to what I have said in paragraph 15 of my dissenting opinion in the latter case. I fear that the present decision marks a growing tendency to relax control, if not an increasing preparedness to condone harsh decisions, in the field of immigration.

3. For my part, I maintain my views as set out in that dissenting opinion. Consequently, I find that the refusal of the Netherlands authorities to admit Souffiane in principle engages their responsibility under Article 8 para. 1 (art. 8-1). What remains to be ascertained is whether or not their refusal was justified under Article 8 para. 2 (art. 8-2).

4. The refusal was, without any doubt, in accordance with the law and served a legitimate aim. It was, however, in my opinion disproportionate.

5. For the reasons given in my above-mentioned dissenting opinion, I infer from the Court ’ s Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985 (Series A no. 94) that where the issue of family reunification arises in a case of "immigrants who already had a family which they left behind", the State of settlement is in principle bound to respect the choice of immigrants who have achieved settled status there and, accordingly, must as a rule admit members of the family left behind by such settlers. There may, perhaps, be exceptions to this rule. However, in my opinion, where reunion with the immigrant ’ s little children is at stake it is very difficult to admit that the rule should not be followed. So much for general principles. I now turn to the case at hand.

6. Salah Ahmut has achieved settled status in the Netherlands , in fact the best possible settled status: he has acquired Netherlands nationality. Admittedly, one might be tempted to doubt whether he has acquired that status by means which are above suspicion. However, since the Government have not relied on this feature of the case and have accepted that Salah Ahmut is a Netherlands national, the principle of equality requires that the Court apply the same standards as it would apply to those whose Netherlands nationality is irreproachable. In the context of the present case the fact that the Netherlands authorities have allowed Salah Ahmut to retain his Moroccan nationality is immaterial.

7. After Souffiane ’ s mother died, Salah Ahmut decided to take care of his son who - at the moment which the Government have rightly accepted as decisive, i.e. the moment of the refusal - was only 9 years old. Whether or not his father had then started a new family in the Netherlands , whether or not Souffiane might possibly be brought up by his grandmother, his uncles, his brothers or sister, is all, in principle, immaterial as long as Souffiane ’ s father is ready, willing and able to do so. If a father who is a Netherlands national wants to live with and care for his 9-year-old child in the Netherlands both father and child are, in principle, entitled to have that decision respected.

8. There are, in my opinion, no grounds which justify an exception. The mere fact that the child is an alien does not do so (see paragraphs 5 and 6 above). Nor does the fact that Salah Ahmut, within a year after he had assumed the care of Souffiane, sent his son to a boarding-school in Morocco , if only because this fact occurred after the decisive date.

9. For these reasons I find that the refusal of the Netherlands authorities to admit Souffiane constitutes a violation of their obligations under Article 8 of the Convention (art. 8).