Instantie

Europese Commissie voor de Rechten van de Mens

Samenvatting

De vader is eerst getrouwd in Marokko en heeft vijf kinderen. De vader
emigreert naar Nederland, trouwt met een Nederlandse vrouw. Vader heeft
Nederlandse en Marokkaanse nationaliteit. De moeder overlijdt. De vader
vraagt gezinshereniging aan voor de jongste zoon, negen jaar oud, uit het
eerste huwelijk. Dit wordt geweigerd omdat het kind niet meer behoort tot het
gezin van de vader in Nederland.
De Commissie is van oordeel dat er sprake is van gezinsleven tussen de vader
en het kind. Het kind is een minderjarige. Zijn vader is zijn
dichtstbijzijnde familielid. Door verwijdering uit Nederland – het kind is
reeds vijf jaar in Nederland – is er de kans dat de banden tussen vader en
zoon verbroken zullen worden. Zijn oma in Marokko is 85 jaar en kan hem niet
meer verzorgen.
De inmenging in het gezinsleven tussen vader en zoon is disproportioneel
gezien het doel van de regeling, in strijd met artikel 8 EVRM.

Volledige tekst

I. Introduction
1. The following is an outline of the case as submitted to the European
Commission of Human Rights, and of the procedure before the Commission.

A. The application
2. The first applicant holds both Moroccan and Dutch nationality. He was born
in 1945 and resides in Rotterdam. The second applicant is a Moroccan citizen,
born on 27 November 1980 and resident in Rotterdam. The applicants are father
and son. They were represented before the Commission by Mr. J.H.M. Nijhuis, a
lawyer practising in Rotterdam.
3. The applicant is directed against the Netherlands. The respondent
Government were represented by their Agent, Mr. H.A.M. von Hebel of the
Netherlands Ministry of Foreign Affairs.
4. The case concerns the refusal of the Netherlands authorities to grant the
second applicant a residence permit. The applicants invoke Article 8 of the
Convention.

B. The proceedings
5. The application was introduced on 23 February 1993 and registered on 22
April 1993.
6. On 1 December 1993, the Commission (Second Chamber) decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to submit
written observations on its admissibility and merits.
7. The Government’s observations were submitted on 21 February 1994. The
applicants replied on 14 April 1994.
8. On 12 October 1994, the Commission declared the application admissible in
respect of the alleged violation of the applicants’ right to respect for
their family life. It declared the remainder of the application inadmissible.
9. The text of the Commission’s decision on admissibility was sent to the
parties on 7 November 1994 and they were invited to submit such further
information or observations on the merits as they wished.
10. After declaring the case partly admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed itself
at the disposal of the parties with a view to securing a friendly settlement.
In the light of the parties’ reaction, the Commission now finds that there is
no basis on which such a settlement can be effected.

C. The present Report
11. The present Report has been drawn up by the Commission (Second Chamber)
in pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present: Mr. H. Danelius, President Mrs
G.H. Thune, MM. G. Jörundsson, S. Trechsel, J.-C. Soyer, H.G. Schermers, F.
Martinez, L. Loucaides, J.-C. Geus, M.A. Nowicki, I. Cabral Barreto, J.
Mucha, D. Sváby.
12. The text of this Report was adopted on 17 May 1995 by the Commission and
is now transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
13. The purpose of the Report, pursuant to Article 31 of the Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose a breach by
the State concerned of its obligations under the Convention.
14. The Commission’s decision on the admissibility of the application is
attached hereto as an Appendix.
15. The full text of the parties’ submissions, together with the documents
lodged as exhibits, are held in the archives of the Commission.

II. Establishment of the facts

A. The particular circumstances of the case
16. Out of the first applicant’s first marriage, five children were born in
1969, 1970, 1971, 1972 and 1980. The second applicant, Souffiane Ahmut is the
youngest of the five children.
17. The first applicant’s marriage was dissolved in 1984. The children born
out of the marriage remained with their mother in Morocco.
18. In September 1986, the first applicant went to the Netherlands where, on
3 November 1986, he married a Dutch national, who already had three children.
On the basis of this marriage he obtained a Dutch residence permit. On 22
February 1990, he obtained Dutch nationality.
19. On 26 March 1987, the first applicant’s first wife died. The children
were subsequently taken into the household of the first applicant’s mother in
Tanger. The first applicant supported his children financially and they saw
each other during visits. According to the applicant’s the first applicant’s
mother can no longer continue to care for her grandchildren in view of her
poor state of health.
20. In February 1990, the first applicant separated from his second wife.
Their divorce was pronounced on 21 December 1990.
21. On 26 March 1990, the second applicant and his sister Souad entered the
Netherlands without having the required authorisation for entry (machtiging
tot voorlopig verblijf). On 3 May 1990, the first applicant requested a
residence permit (vergunning tot verblijf) on behalf of his son on the basis
of family reunification.
22. The request was rejected by the Deputy Minister of Justice on 26 June
1990. He noted that the second applicant had entered the Netherlands without
the required authorisation for entry. As to the request for a residence
permit on the basis of family reunification, the Deputy Minister of Justice
considered that the second applicant did not fulfil the conditions of Section
11 para. 5 of the Aliens Act (Vreemdelingenwet) and the applicable policy
rules laid down in the Circular on Aliens (Vreemdelingencirculaire) because
he did not in fact belong to his father’s family in the Netherlands, as,
following his parents’ divorce, he had remained with his mother and had
subsequently become a member of his paternal grandmother’s family in Morocco.
It had furthermore not been shown in which way the first applicant had
contributed either financially or otherwise to the upbringing of the second
applicant and it had not been substantiated that the paternal grandmother
could no longer care for him.
23. As regards Article 8 of the Convention, the Deputy Minister of Justice
did not find that the link between the applicants could be regarded as
constituting family life within the meaning of this provision. He considered
that, if there were family life, and if the personal interests of the
applicants were weighted against the general interest, an interference with
the rights under Article 8 para. 1 of the Convention was justified under
para. 2 of this provision as being necessary in a democratic society in the
interests of the economic well-being of the country. The Deputy Minister of
Justice finally held that there were no other compelling humanitarian reasons
on the basis of which a residence permit should be granted to the second
applicant.
24. The decision of 26 June 1990 was served on the applicants on 22 October
1990.
25. On 26 October 1990, two other children born out of the first applicant’s
first marriage obtained permission to reside in the Netherlands for initially
one year to study at the Technical University of Delft.
26. On 13 November 1990, the first applicant requested the Deputy Minister of
Justice to review (herziening) the decision of 26 June 1990. On 4 January
1991, the request was granted suspensive effect in respect of the proposed
expulsion of the second applicant.
27. Since the Deputy Minister of Justice had failed to take a decision on the
request for review within the prescribed period of three months, the first
applicant, on behalf of the second applicant, filed an appeal on 6 March 1991
to the Judicial Division of the Council of State (Afdeling Rechtspraak van de
Raad van State) against the Deputy Minister’s presumed rejection (fictieve
weigering) of the request for a review.
28. On 11 March 1991, the first applicant married a Moroccan national, who,
on the basis of that marriage, obtained a Dutch residence permit.
29. On 20 March 1991, a hearing took place before the advisory Commission for
Aliens Affairs (Adviescommissie voor Vreemdelingenzaken) on the request of 13
November 1990 for a review. The Commission heard the first applicant in the
presence of his lawyer; the second applicant was present, but no questions
were put to him. At the hearing the first applicant stated, inter alia, that
he had no proof of his divorce from his first wife since one has to pay for
such a document, that his second wife had always refused to take the children
born out of his first marriage into their household, that he never applied
for any children’s allowance (kinderbijslag) in the Netherlands but that he
had sent or taken money to Morocco for the maintenance of his children on a
regular basis, that he has two brothers living in Morocco, and that his
eldest son from his first marriage, Hamid, lives on his own in Morocco and
works as a merchant.
30. The applicant submitted a copy of his first wife’s death certificate to
the Advisory Commission for Aliens Affairs. He also submitted a medical
certificate dated 7 November 1990, which stated that the applicant’s mother
was 80 years old, that she suffered from kidney problems and dyspnea, and
that was an out-patient at a hospital in Tanger.
31. After having considered the statements and the documents submitted, the
Advisory Commission, unanimously, decided on 20 March 1991 to advise the
Deputy Minister of Justice to reject the request for a review. However,
because in the meantime the applicant had appealed to the Judicial Division
of the Council of State, the Deputy Minister did not determine the request
for a review.
32. Following a hearing on 10 August 1992, the Judicial Division of the
Council of State rejected the appeal on 24 August 1992. It held that the
second applicant did not meet the requirements for a residence permit for
family reunification as laid down in Chapter B19 of the Circular on Aliens,
as he could not be considered as a member of his father’s family in the
Netherlands. It further held that it had not appeared or been argued that his
older brother Hamid or his two uncles in Morocco could not care for him.
Moreover, the second applicant could return to Morocco together with his
sister Souad, who could equally provide him with care in Morocco. The
Judicial Division of the Council of State further stated that it had not
appeared or been argued that it was possible for his father to continue to
provide for him financially.
33. Under Article 8 of the Convention the Judicial Division found no
interference with the applicants’ rights since the case did not concern the
revocation of a residence permit which had allowed them to enjoy family life
in the Netherlands. The Judicial Division considered that the Dutch
authorities, after weighting the personal interests of the applicants against
the general interest of the Netherlands, did not have a positive obligation
under Article 8 of the Convention to grant the second applicant a residence
permit.

B. Relevant domestic law
34. The rules on entry and residence in the Netherlands and the grounds on
which aliens may be expelled are laid down in the Aliens Act, the
regulations implementing this Act, and the Circular on Aliens. The Circular
on Aliens is a compilation of binding policy rules and directives drawn up
and published by the Dutch Ministry of Justice.
35. Section 11 para. 5 of the Aliens Act states, inter alia, that a residence
permit can be refused in the public interest. On the basis of this provision,
the Dutch authorities pursue a restrictive immigration policy for the purpose
of regulating the labour market and restricting immigration in a densely
populated country. As a rule, a residence permit is only granted if an
international obligation must be respected, if the alien’s presence in the
Netherlands serves an essential Dutch interest, of if there are compelling
humanitarian reasons.
36. Family reunification, which is dealt with in Chapter B19 of the Circular
on Aliens, is one of the grounds on which a residence permit can be granted.
Provided that a number of conditions concerning, inter alia, sufficient means
of existence, health, and public order, have been fulfilled, a residence
permit on the grounds of family reunification can be granted to, inter alia,
spouses of Dutch nationals or aliens who lawfully reside in the Netherlands,
and to their minor children regardless of whether they were born in or out of
wedlock, provided that these children in fact belong to their family.
37. If an alien is not entitled to a residence permit on the basis of the law
and the policy, the authorities will always consider whether there are
nonetheless compelling humanitarian reasons on the basis of which an alien
should be granted residence in the Netherlands.

III. Opinion of the commission

A. Complaint declared admissible
38. The Commission has declared admissible the applicants’ complaint that the
Netherlands authorities’ refusal to grant the second applicant a residence
permit in order to take up residence with the first applicant constituted an
unjustified interference with their family life within the meaning of Article
8 of the Convention.

B. Point at issue
39. The point at issue is accordingly whether there has been a violation of
Article 8 of the Convention as regards both applicants.

C. As regards Article 8 of the Convention
40. Article 8 of the Convention, insofar as relevant, reads as follows:
`1. Everyone has the right to respect for his …. family life…
2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of …. the economic well-being of the
country…’
41. The applicants submit that there is family life within the meaning of
Article 8 para. 1, between them and that the refusal to grant a residence
permit to the second applicant constitutes an interference with their family
life. In this respect they argue that the second applicant cannot return to
his grandmother, who is no longer able to care for him, that other family
members are not in the position to care for him and that, apart from his
sister Souad, none of his brothers was living in the household of the
grandmother when he left Morocco in March 1990. According to the applicants a
continuation of the family life as it had existed prior to March 1990 was no
longer possible. The applicants submit that the interference is not justified
under Article 8 para. 2 of the Convention.
42. The Government submit in the first place that the bond between the
applicants is not close enough to be described as family life within the
meaning of Article 8 para. 1 of the Convention. Subsidiarily the government
submit that even if there were family life within the meaning of Article 8
between the applicants, the refusal to grant a residence permit to the second
applicant constitutes no interference with their family life, because the
family life as it had existed prior to March 1990, i.e. occasional contacts
and financial support, can be continued when the second applicant resides in
Morocco. Finally the Government submit that, should the Commission be of the
opinion that the refusal to grant a residence permit to the second applicant
constitutes an violation of Article 8 para. 1, the interference is justified
under Article 8 para. 2 of the Convention, because the interests of the
applicants do not outweigh the public interest. They submit that the second
applicant has very close relatives in Morocco (in particular his eldest
brother), that he can live with his sister and that the first applicant can
continue to make financial contributions.
43. The Commission recalls that the Convention does not guarantee a right to
enter or reside in a particular country. However, in view of the right to
respect for family life ensured by Article 8 of the Convention, the exclusion
of a person from a country in which his close relatives reside may raise an
issue under this provision of the Convention (cf. No. 11274/84, Dec. 1.7.85,
D.R. 43, p. 216).
44. The Commission finds that the links between the applicants may be
regarded as constituting family life within the meaning of Article 8 para. 1
of the Convention.
45. Consequently, the refusal of a residence permit to the second applicant
must be considered as an interference with their right to respect for their
family life (cf. No. 13654/88, Dec, 8.9.88, D.R. 57, p. 287).
46. The question therefore arises whether this interference was justified
under Article 8 para. 2 of the Convention, i.e., whether it was `in
accordance with the law’ and could reasonably be considered as necessary in a
democratic society for one or more of the legitimate aims referred to in this
provision.
47. The Commission notes that the decision to refuse the second applicant a
residence permit was based on and taken in accordance with Section 11 par. 5
of the Aliens Act and Chapter B19 of the Circular on Aliens, which lays down
special conditions for the granting of residence permits on the grounds of
family reunification.
48. The Commission further notes that the Dutch immigration policy
establishes special conditions for the purpose of regulating the labour
market, and generally of restricting immigration in a densely populated
country. Thus the legitimate aim pursued is the preservation of the country’s
economic well-being within the meaning of Article 8 para. 2 of the Convention
(cf. Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, p.
15, para. 26).
49. Regarding the necessity of the interference in a democratic society, the
Commission recalls that the Contracting States have a margin of appreciation
in the field of immigration policy. However, `necessity’ implies that the
interference must correspond to a pressing social need and, in particular,
that it must be proportionate to the legitimate aim pursued (cf. Berrehab
judgment, loc. cit. p. 16, para. 28).
50. The Commission observes that the second applicant is a minor. At present
he is fourteen years old.
51. The Commission further observes that the second applicant’s mother died
in 1987 and that his father, the first applicant, is his closest relative.
The Dutch authorities’ refusal to grant the second applicant a residence
permit in order for him to take up residence with his father will most likely
lead to his expulsion from the Netherlands. If the second applicant is
expelled from the Netherlands there will be a risk that the ties between the
applicants will be weakened or broken.
52. Furthermore, the parties disagree about whether the second applicant will
have a proper place to live and whether he will receive proper care in
Morocco. It is true that the second applicant has family members living in
Morocco, but it is not clear to what extent they are able or willing to
provide the second applicant with the required care. As regards the second
applicant’s grandmother, the Commission, recalling that she is 85 years old
according to the medical certificate (see para. 30 above), finds that it is
not unreasonable to assume that she will not be able to care for the second
applicant in the way she did prior to his departure to the Netherlands in
March 1990.
53. The Commission further observes that the second applicant entered the
Netherlands on 26 March 1990 and that apparently he has been living there
since that date. This is, at present, a period of more than five years. It is
true that the Dutch authorities never gave their approval to the second
applicant’s residence in the Netherlands, but they did not take action to
expel him.
54. In these circumstances the Commission finds that the balance that was
struck between the interests of the parties involved was not fair. The
interference was therefore not necessary in a democratic society as being
disproportionate to the legitimate aim pursued. As a result, the interference
was not justified under Article 8 para. 2 of the Convention.

Conclusion
55. The Commission concludes, by 9 votes to 4, that in the present case there
has been a violation of Article 8 of the Convention.

Rechters

Mrs. Danelius, Thune, Jörundsson, Trechsel, Soyer, Schermers, Martinez,Loucaides, Geus, Nowicki, Cabral Barreto, Mucha, Sváby