CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                          Application No. 23002/93                        by K.F.Y.                        against the Netherlands         The European Commission of Human Rights (Second Chamber) sitting in private on 11 January 1995, 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              Mr.    K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 12 November 1993 by K.F.Y. against the Netherlands and registered on 24 November 1993 under file No. 23002/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a naturalised Dutch citizen, born in 1950, and residing at Rotterdam where he owns and runs a company. Before the Commission he is represented by Ms. V.M. Weski, a lawyer practising in Rotterdam.         The facts, as submitted by the applicant, may be summarised as follows.         In 1980 the applicant, who was at that time a resident of Hong Kong, where he lived with his wife and four children, travelled to the Netherlands for a holiday. He lost his passport and was unable to obtain a new passport until 1987. He had therefore been forced to remain in the Netherlands. His wife and children remained in Hong Kong.         In 1983 the applicant's wife and mother of his four children, who were born in 1970, 1972, 1976 and 1978 respectively, left the children for an unknown destination. The children went to live with their grandmother, who died in 1988. In 1985 they moved to a cousin, but she emigrated to the United States in 1988. As from that moment the children lived on their own in the cousin's house in Hong Kong until either December 1987 or March 1989 when the eldest daughter travelled to the Netherlands. The other children travelled to the Netherlands to join their father, stepmother and sister in 1992 and 1993 respectively. There are no other relatives in Hong Kong.         On 23 June 1987 the divorce between the applicant and his wife was pronounced. On 28 January 1988 he married a Dutch woman. He has since obtained Dutch nationality.         The applicant submits that, after his arrival in the Netherlands, he had frequent contacts with his children when they were still living in Hong Kong, both by letters and by telephone and that he also regularly sent them money. In 1989 and 1990 he visited the three children still remaining in Hong Kong and he stayed with them for one month.         On 28 November 1989 the applicant requested entry visas (machtiging tot voorlopig verblijf) for his children from the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken), even though his eldest daughter appears to have been already living with him at that time. In support of his request he claimed that the children could live in his house and that he could support them and pay for their education. He would also be able to employ them in his company. On 25 June 1990 his request was rejected.         The applicant filed an objection (bezwaarschrift) against this decision on 10 August 1990 with the Minister of Foreign Affairs. After having consulted an advisory board, the Minister rejected the objection on 28 March 1991.         On 23 April 1991 the applicant lodged an appeal with the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State). To substantiate his appeal the applicant submitted copies of bank statements, showing transfers of money from the Netherlands to his children in Hong Kong in 1988, 1989 and 1990, telephone bills, showing regular telephone calls to Hong Kong from 1986 until 1991, and letters in Chinese characters, some of which bear dates in the years 1983, 1987, 1988 and 1989.         On 2 July 1993 the Judicial Division rejected his appeal. It observed that, since the applicant's request was aimed at obtaining permanent residence in the Netherlands for his children, they should fulfil the general conditions for aliens wishing to obtain a residence permit. Having regard to Dutch immigration policy, the Judicial Division found there was no international agreement obliging the Netherlands to grant the children residence and their presence in the Netherlands would not serve any essential Dutch interest. Furthermore, it observed that the children could not be granted residence permits for family reunion, as the actual family ties had been severed since 1980. The Judicial Division further found that there were no compelling reasons of a humanitarian nature allowing them to reside in the Netherlands since the children, given their age, should be able to live independently in Hong Kong.         The Judicial Division also rejected the applicant's argument that his eldest daughter, after having undergone an operation in Hong Kong in February 1989, needed further medical treatment in the Netherlands.         Insofar as the applicant had complained of a violation of Article 8 of the Convention, the Judicial Division held that, although there existed family life between the applicant and his children, there was no interference with the right to respect for this life as the refusal to issue the entry visas did not deprive them of a residence permit which enabled them to lead a family life in the Netherlands.         The Judicial Division finally examined whether in the present case the right to respect for family life within the meaning of Article 8 of the Convention entailed a positive obligation on the Netherlands to issue the entry visas. It found, however, that, in the absence of compelling reasons of a humanitarian nature, the Minister for Foreign Affairs had not impaired the applicant's right to respect for his family life when he applied the restrictive immigration policy followed by the Dutch authorities.         In the meantime, the applicant's two eldest children and the applicant on behalf of the two youngest, requested residence permits on 14 April 1993, at which date all the children resided, albeit unlawfully, with their father in the Netherlands.         These requests were rejected by the Deputy Minister of Justice on 8 and 10 June 1993 respectively. The subsequent requests for a review of these decisions were denied suspensive effect on 17 August 1993. The applicant's two eldest children and the applicant on behalf of the two youngest then instigated summary proceedings (kort geding) before the President of the Regional Court of Haarlem, requesting an injunction prohibiting the Dutch authorities from expelling the children before their requests for a review of the refusal to grant residence permits had been decided, or until the application before the European Commission of Human Rights had been dealt with.         In his interlocutory judgment of 7 December 1993 the President of the Haarlem Regional Court considered that the review of the decisions to refuse the children a residence permit did not have a reasonable chance of success in the light of the Judicial Division's rejection of the applicant's appeal against the refusal of entry visas. However, having regard to the Commission's decision on the admissibility of Application No. 14852/89 (Akhtar/Johangir, Dec. 29.6.92), the President adjourned the summary proceedings and ordered the applicant and his children to produce evidence of the fact that family life had continued to exist between them after the applicant's departure from Hong Kong and to substantiate their claim that the children could not be looked after in Hong Kong or anywhere else. Furthermore they were ordered to indicate that there existed further elements of dependency, involving more than the normal emotional ties, between the applicant and his eldest daughter who was 19 years of age at the time her father first requested an entry visa for her.         On 11 November 1994 the President adjourned the summary proceedings until 15 February 1995, awaiting the outcome of the proceedings before the Commission.   COMPLAINT         The applicant complains that the refusal by the Netherlands authorities to issue entry visas to his children in order for them to join him in the Netherlands, unjustly interfered with his right to respect for his family life within the meaning of Article 8 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 12 November 1993 and registered on 24 November 1993.         On 2 November 1994 the Commission was informed about the proceedings pending before the Haarlem Regional Court by the Registrar of this Court. On the same day the applicant was requested to submit additional information regarding these proceedings.         By letter of 18 November 1994 the applicant submitted the documents requested.   THE LAW   1.     The applicant has complained under Article 8 (Art. 8) of the Convention that the refusal to issue entry visas to his children constituted an interference with the right to respect for his family life.         This provision, 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 (...)."         The Commission considers that, in view of the subsequent developments after the introduction of the application, the complaint should now be regarded as being directed against the refusal by the Dutch authorities to grant the applicant's children residence permits.         The Commission recalls that the Convention does not, as such, guarantee an alien either the right to enter or to reside in a particular country, or a right not to be expelled therefrom. It is within the discretionary power of Contracting States to set conditions for admission and residence of aliens. However, in view of the right to respect for family life ensured by Article 8 (Art. 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).   2.     The Commission notes that the applicant's eldest daughter was already no longer a minor at the time the applicant requested an entry visa for her. In this respect the Commission recalls that relationships between adults - in the present case a father and his adult daughter - would not necessarily acquire the protection of Article 8 (Art. 8) of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties (cf. No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196). The Commission does not find that such elements have been established in the present case.         It follows that the complaint under Article 8 (Art. 8) of the Convention in respect of the applicant's family life with his eldest daughter is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The Commission observes with regard to the applicant's three younger children that, until they came to the Netherlands, they had not lived with him since 1980. The applicant lived in the Netherlands, where he had remarried, and the children lived in Hong Kong, initially with their mother and later with their grandmother followed by their niece. From 1988 they lived on their own. The applicant helped to support his children financially, had frequent contacts with them and, in 1989 and 1990, visited them.         From the moment the three children arrived, albeit unlawfully, in the Netherlands they have lived with their father, stepmother and eldest sister as a family.         The Commission finds that the links between the applicant and these three children may be regarded as constituting family life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.         As regards the refusal by the Netherlands authorities to grant residence permits to the applicant's three younger children, the Commission considers, however, that it does not need to examine whether this constitutes a violation of the applicant's right to respect for family life, since the appeal proceedings against the refusal are still pending. Although these proceedings have been denied suspensive effect, the children are allowed to await the outcome of the summary proceedings before the President of the Haarlem Regional Court. Given that in these proceedings so far no final decision has been taken, the Commission finds that the applicant has not exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.         It follows that the remainder of the application must be rejected under Article 27 para. 3 (Art. 2-3) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber         President of the Second Chamber           (K. ROGGE)                               (H. DANELIUS)