JOINT DISSENTING OPINION OF JUDGE S ZIEMELE, TSOTSORIA AND PARDALOS

1. We cannot agree with the Chamber ’ s conclusions in the present case.

2. The Chamber reiterates that Article 8 of the Convention does not impose a general obligation on a State to grant entry into the country and authorise family reunion in its territory. “Nevertheless, in a case which concerns family life as well as immigration, the extent of a State ’ s obligation to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest” (see paragraph 54). The Chamber also reiterates the balancing exercise that the national authorities are required to carry out:

“ Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would be precarious from the outset. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Rodrigues da Silva and Hoogkamer v. the Netherlands , no . 50435/99, § 39 with further references, ECHR 2006 I).” ( see paragraph 55)

3. We note that the applicant learnt of the requirement to sign a formal statement to the effect that she had never been the subject of a criminal conviction only after her return to the Netherlands on the basis of the provisional residence visa. The latter was issued in view of a positive recommendation from the Aliens Police Service. Only once she was in the Netherlands , when filing a request for a temporary regular residence permit, did she discover that requirement, which she obviously could not comply with and which explains her refusal to sign the declaration. In our view, it was an honest move on the part of the applicant. Moreover, under the national law “an application for a provisional residence visa is in principle assessed on the basis of the same criteria as a residence permit” (see paragraph 31). Since August 2001 the applicant ’ s immigration status has been examined by various authorities. It is in fact this examination of the various factors by the authorities that is of interest for the purposes of Article 8 and not the outcome per se .

4. We note that the Deputy Minister of Justice declared the applicant an undesirable alien because in 1996 she had participated in the deliberate importation of cocaine. The Deputy Minister considered that the interference with the applicant ’ s right to respect for her family life was justified in the interests of public safety. At that stage, no analysis was made of her behaviour since the conviction, the time that had elapsed since the offence was committed, other factors indicating that it was a genuine couple, and so on. Later on the Minister for Immigration also primarily emphasised the conviction factor, adding that the family would have no obvious problems in following the applicant to Venezuela . Only the Regional Court noted that eight years had elapsed since the conviction, that the marriage and the birth of the child had taken place after the exclusion order was imposed and that the family could move to Venezuela, and drew a distinction with the case of Boultif v. Switzerland , no. 54273/00, ECHR 2001 ‑ IX , in which the applicant had been granted a residence permit and was subject to expulsion. We agree that the factors established in the Boultif case, as long as it is recognised that Article 8 also applies to illegal aliens, all have to be taken into account and balanced against each other. The problem that we have in this case – again as long as it is accepted that Article 8 applies – has to do with the manner in which the Netherlands authorities assessed and weighed up all the factors. It may well be that they would have arrived at the same conclusion and it may well be that the public-order consideration was particularly strong in this case. But the State is required, under Article 8, to have due regard to the other factors. For example, it could very well be the case that the main reason for the applicant giving birth to the child in 2004 was her age. The authorities should have considered that possibility and should not have assumed that this was a deliberate act undertaken on account of the applicant ’ s difficult immigration situation. In other words, from the facts, as presented in the case, it is difficult to see to what extent the authorities had regard to the personality of the applicant and her true family situation, which should have been balanced against the public-order considerations.

5. In many ways the majority does more justice to the balancing exercise in its reasoning than the national authorities did (see paragraphs 56–60). We cannot agree with the majority, however, when they stress the fact that the applicant ’ s presence in the Netherlands constituted a criminal offence. This was a situation which emerged by virtue of the legislation and, we should say, a certain inconsistency between the administrative-law avenue for challenging an exclusion order of no suspensive effect and the position under criminal law regarding the stay of aliens following an exclusion order (see paragraphs 36-38). The alleged criminal offence of the applicant (see paragraph 59) was not of her doing for as long as, at least theoretically, there were remedies by which she could challenge the exclusion order.

6. There has therefore in our view been a violation of the procedural aspect of Article 8 and a violation of Article 13.