CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 1997

.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. 29192/95                       by Mehmet ÇILIZ                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 22 October 1997, the following members being present:              Mrs    G.H. THUNE, President            MM     J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, 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 6 November 1995 by Mehmet ÇILIZ against the Netherlands and registered on 9 November 1995 under file No. 29192/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      28 August 1996 and the observations in reply submitted by the      applicant on 15 November 1996;        Having deliberated;        Decides as follows:     THE FACTS        The applicant is a Turkish citizen, born in 1965, and residing in Meram Konya, Turkey. Before the Commission he is represented by Mrs. G.E.M. Later, a lawyer practising in The Hague, the Netherlands.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    The particular circumstances of the case        The applicant came to the Netherlands on 31 March 1988 where he married a Turkish woman on 29 December 1988. Upon his request he was granted a residence permit by the head of the Utrecht police on 14 February 1990 in order to live with his spouse and to work in the Netherlands. This residence permit was valid for one year and, on 5 April 1990, the applicant was given a document showing that as a result of his marriage he was allowed to reside in the Netherlands indefinitely.        On 27 August 1990, a son, Kürsad, was born to the applicant and his wife.        The applicant and his wife separated in November 1991 and divorce proceedings were initiated. Consequently, the applicant lost the right to reside in the Netherlands indefinitely since this had been dependent on his marriage. On 24 January 1992, the applicant applied for and was granted an independent residence permit in order to work in the Netherlands. This permit was valid for one year.        The applicant requested the Regional Court (Arrondissementsrechtbank) of Utrecht to establish an arrangement concerning parental access (omgangsregeling, hereinafter "access arrangement"). The Regional Court requested the Child Care and Protection Board (Raad voor de Kinderbescherming) to investigate the feasibility of such an arrangement.        In its report of 18 January 1993, the Child Care and Protection Board stated that after an initial refusal to co-operate with an access arrangement, the mother had agreed for the applicant to meet his son several times on a provisional basis at the maternal grandparents' house but that the applicant had failed to contact the Board. The Board concluded that the applicant's situation had not become sufficiently clear and for this reason the Board found that an access arrangement would not be appropriate.        The applicant requested a prolongation of his residence permit in order to work in the Netherlands from the head of the Utrecht police on 11 January 1993. At this time the applicant was in receipt of unemployment benefits and for this reason his request was rejected on 3 February 1993. As regards Article 8 of the Convention, the head of the Utrecht police considered, inter alia, that since it appeared that the applicant had no regular contacts with his son there was no family life between them within the meaning of this provision. In this respect it was held that the applicant's claim that it was not his fault that no regular contacts took place could not be taken into account, since regard could only be had to the factual situation. Furthermore, even assuming there was family life between the applicant and his son, an interference with the right to respect for this life would, according to the head of the Utrecht police, be justified under para. 2 of Article 8.        The applicant requested the State Secretary for Justice (Staatssecretaris voor Justitie) on 22 April 1993 to review (herzien) the decision of the head of the Utrecht police. He submitted that he was in the process of obtaining a permanent employment contract. He conceded that at present the contacts with his son had not yet been regularised but that the Regional Court of Utrecht was expected to examine and to grant a request for an arrangement concerning parental access shortly.        The applicant's marriage was officially dissolved on 17 March 1994.        On 15 July 1994, the applicant was heard by the Advisory Commission for Aliens Affairs (Adviescommissie voor Vreemdelingenzaken). The applicant stated that he visited his son between one and three times a week.        The Advisory Commission proposed to the State Secretary for Justice that the applicant's request for revision be rejected. Even though it considered that there was family life between the applicant and his son and that the refusal to grant the applicant continued residence in the Netherlands would constitute an interference with the applicant's right to respect for his family life, the Advisory Commission held that this interference was justified for the protection of the economic well-being of the country. In this respect the Advisory Commission considered that the applicant was in receipt of unemployment benefits. It might be true that these benefits would be withdrawn in view of the applicant's contract as a stand-by employee in the clothing industry, but the Advisory Commission did not regard these activities as serving an essential national interest since it had appeared that on the Dutch labour market other people, having priority over the applicant, were available for this kind of work.        The Advisory Commission further took into account that the applicant had only lived with his son for one and a half year, that he saw his son irregularly and briefly, and that he contributed irregularly to the costs of his son's upbringing and education.        Having regard to the opinion of the Advisory Commission, the State Secretary for Justice rejected the applicant's request for revision on 6 October 1994. The applicant was informed at the same time that an appeal (beroep) against this decision would not suspend his expulsion.        The applicant filed an appeal against the decision of 6 October 1994 with the Aliens' Chamber (Vreemdelingenkamer) of the Regional Court of The Hague sitting at Amsterdam (nevenzittingsplaats Amsterdam) on 31 October 1994. He submitted, inter alia, that contrary to what the Advisory Commission had held, the relationship he had with his son was intense. On the same date he also requested the Chairman of the Aliens' Chamber to grant an interim measure (voorlopige voorziening) allowing him to await the outcome of the appeal proceedings in the Netherlands.        Meanwhile, following a hearing on 25 November 1994, the Utrecht Regional Court on 24 January 1995 appointed the applicant's former wife as guardian and the applicant as auxiliary guardian of their son. It further ordered that as a contribution to the costs of the upbringing and education of his son, the applicant should pay to the mother any child benefits he might receive under the statutory regulations. In view of the circumstances and the relationship between the parties the Regional Court found it inappropriate, however, to lay down in a formal access arrangement the varying contacts which the applicant was having with his son at that time. The Regional Court assumed in this respect that the contacts which the applicant had had and was still having with his son would be continued in the future; it added that, as part of the upbringing of the child, it was incumbent on the mother to ensure that these contacts between father and child took place.        The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam against the decision of the Utrecht Regional Court not to establish an access arrangement. A hearing took place on 19 April 1995, during which the applicant's former wife stated that she was not willing to co-operate in an access arrangement, since she felt that the applicant only wished to have such an arrangement established in order to obtain a right to reside in the Netherlands. Furthermore, she did not believe that the applicant was capable of maintaining regular contacts with his son and submitted that irregular contacts would not be conducive to the boy's well-being. The applicant submitted that he had twice contacted his former wife but that she had not allowed him to see the boy.        On 10 May 1995, a hearing took place before the Regional Court of The Hague sitting at Amsterdam on the appeal filed by the applicant against the rejection of his request for revision of the decision not to prolong his residence permit. The Regional Court rejected the appeal by decision of 24 May 1995. It held that the refusal to grant the applicant continued residence in the Netherlands constituted a justified interference with his family life. The Regional Court considered in this respect, inter alia, that the Utrecht Regional Court had rejected the applicant's request to establish an access arrangement. It found, furthermore, that the contacts between the applicant and his son were irregular and short and that the applicant did not contribute regularly to the costs of his son's upbringing and education. The Regional Court further held that the economic well-being of the country should be taken into account as well. It noted that the applicant had submitted an employment contract from which it appeared that his probationary period had not yet been concluded and that, in any event, there was a sufficient amount of work force with priority over the applicant available on the Dutch labour market for the kind of work the applicant was employed to do. It appears from the Regional Court's considerations that it would have reached the same decision if an access arrangement had existed based on a frequency of the applicant's contacts with his son of one to three times a week.        When this decision was sent to the applicant, i.e. on 26 June 1995, the applicant's probationary period had come to an end and he was in the possession of a contract of employment for an indefinite period.        By separate decision of 24 May 1995, the President of the Regional Court rejected the request for an interim measure in view of the fact that the appeal proceedings had been concluded.        As regards the applicant's request for the establishment of an access arrangement, the Court of Appeal decided on 1 June 1995 to adjourn these proceedings. The Court found that at the present time there was insufficient reason to deny the applicant the right of access to his son.   As it was not clear to what extent the applicant was genuinely interested in his son the Court of Appeal requested the Child Care and Protection Board to organise a number of supervised trial meetings between the applicant and his son in order to have the applicant's motives clarified.        On 19 September 1995, the applicant was informed that the Court of Appeal had further adjourned the proceedings until 3 December 1995 in view of the heavy workload of the Child Care and Protection Board. By letter of 16 October 1995, the applicant asked the Court of Appeal whether there was no other organisation capable of organising the trial meetings as he wished to see his son and a further delay would have negative effects on both the applicant and the child.        On 31 October 1995, the applicant was placed in detention with a view to his expulsion (vreemdelingenbewaring).        On 2 November 1995, the applicant again requested a residence permit in order to work in the Netherlands, to be able to be with his child and for reasons of a compelling humanitarian nature. On this occasion he told the head of police that as of February 1995 he had stopped contributing financially to his son's upbringing since his former wife no longer allowed him to see his son.        The first trial meeting between the applicant and his son, organised by the Child Care and Protection Board, took place on 3 November 1995 at the offices of this organisation. Since the applicant was still in detention, he was accompanied by two police officers who observed the meeting between the applicant and his son from a different room.        On 7 November 1995, the applicant's representative contacted the officer of the Child Care and Protection Board who had also been present at the meeting between the applicant and his son. In the opinion of this officer, the meeting had gone well. Although eye contact between father and son had not been established immediately, this, according to the officer, was due to the fact that father and son had had to re-accustom themselves to being together. Once this had been achieved, eye contact did take place. The officer submitted as her opinion that another experimental contact should be organised by the Board, perhaps in the presence of a psychologist, following which the possibility of a supervised access arrangement should be considered.        The applicant's request of 2 November 1995 for a residence permit was rejected by the State Secretary for Justice on 6 November 1995. The State Secretary held that no relevant new facts had been adduced by the applicant. Based on the information submitted by the police officers who had observed the meeting between the applicant and his son on 3 November 1995, the State Secretary considered furthermore that it had not appeared that the relationship between the applicant and his son at the present time was meaningful, mutual or anything more than shallow and neither was it realistically foreseeable that a closer relationship would develop.        The applicant filed an objection (bezwaar) against the refusal of a residence permit with the State Secretary for Justice on 6 November 1995. He submitted, inter alia, that proceedings concerning access to his son were still pending before the Amsterdam Court of Appeal and that the trial meeting which had been ordered by the Court of Appeal on 1 June 1995 had only taken place as late as 3 November 1995. Given the fact that at that time the applicant had been in detention, it was unreasonable to expect that this meeting between the applicant and his son would give a true impression of the nature of the relationship between them. The applicant also requested the President of the Regional Court of The Hague sitting at Amsterdam to grant an interim measure to the effect that he would not be expelled as long as no decision had been taken on his objection against the refusal to grant him a residence permit.        On 8 November 1995, the applicant was expelled to Turkey.        On 20 February 1996, the applicant changed his request for an interim measure by now demanding that the President of the Regional Court order the Dutch authorities to let the applicant return to the Netherlands and that he prohibit them from expelling the applicant again as long as no decision had been taken on his objection and the proceedings before the Court of Appeal of Amsterdam concerning the access arrangement had not been terminated.        The President of the Regional Court rejected the objection which the applicant had filed against the refusal of a residence permit and, in light of this decision, also rejected the request for an interim measure on 7 March 1996.        In the proceedings concerning the access arrangement, a hearing before the Court of Appeal of Amsterdam was set for 2 December 1996. On 18 October 1996 the applicant applied to the Dutch embassy in Ankara for an entry visa in order to be present at this hearing. The applicant's representative was informed by an officer of the Ministry for Foreign Affairs that the applicant would not be provided with an entry visa as there was a risk that he would settle in the Netherlands. The request for an entry visa was officially rejected on 3 February 1997. The applicant has filed an objection against this refusal which is currently still pending.        The proceedings before the Court of Appeal of Amsterdam have been adjourned.     B.    Relevant domestic law and practice        In general, an application for a residence permit in the Netherlands is granted only if the individual's presence serves an essential national interest or if there are compelling humanitarian grounds (klemmende redenen van humanitaire aard). At the relevant time, foreigners married to either a Dutch national, a recognised refugee or a holder of a permanent residence permit fell into the latter category. After one year of legal residence in the Netherlands they acquired ex jure an indefinite right to remain pursuant to Section 10 para. 2 of the Aliens Act (Vreemdelingenwet).        This right expired ex jure when the spouses no longer co-habited (Section 47 para. 1 sub (a) of the Order on Aliens [Vreemdelingenbesluit]). If, at that time, the foreigner had been married for more than three years and had legally resided with his spouse in the Netherlands for at least one year during the time directly preceding the dissolution or breakdown of the marriage, he would be eligible for an independent residence permit.        An independent residence permit in order to work in the Netherlands, which had been granted following the dissolution or breakdown of a marriage, could be prolonged if at the time of the request for such a permit the foreigner was certain of employment for at least another year. However, prolongation was not refused if, inter alia, there were compelling reasons of a humanitarian nature to accept the individual's presence in the Netherlands.        An "essential national interest" as mentioned above is considered to exist where a foreigner is employed in a sector where there is not a sufficient number of capable people available on the labour market to fill all vacancies. To establish whether this is the case, regard is only had to the number of registered unemployed people enjoying priority (prioriteit genietend aanbod). For example, on the Dutch labour market E.U. citizens have priority over most other foreigners.     COMPLAINTS        The applicant complains of a violation of Article 8 of the Convention, arguing that the interference with his right to respect for his private and his family life cannot be justified under para. 2 of this provision.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 6 November 1995 and registered on 9 November 1995.        On 27 June 1996 the Commission decided to communicate the applicant's complaint concerning the interference with his private and family life to the respondent Government and to declare the remainder of the application inadmissible.        The Government's written observations were submitted on 28 August 1996.   The applicant replied on 15 November 1996, after an extension of the time-limit fixed for that purpose.   THE LAW        The applicant complains under Article 8 (Art. 8) of the Convention that the Dutch authorities did not prolong his residence permit. As a result, he is unable to have regular contact with his son and, following his expulsion, cannot participate in the proceedings concerning the question whether a formal access arrangement should be established.        Article 8 (Art. 8) of the Convention, insofar as relevant, provides as follows:        "1.    Everyone has the right to respect for his private and      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 national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Government concede that the refusal to allow the applicant continued residence in the Netherlands constituted an interference with his right to respect for his private and family life. However, they submit that this interference was in accordance with the law and had a justified objective, namely the economic well-being of the country. As to whether the interference was proportionate to the aim pursued the Government argue that, on balance, the importance of continued residence in the Netherlands to the applicant was not greater than the State's interest in his expulsion.        In this respect the Government have taken into account, inter alia, that the applicant lived with his son for less than eighteen months and that the contacts between them since then have been minimal. The Government submit that it is perfectly possible for the applicant to maintain this contact from Turkey. Further, the limited and irregular financial contributions made by the applicant until February 1995 do not, according to the Government, provide evidence of a close involvement with the care and upbringing of his son. Moreover, the applicant was in receipt of benefits paid out of public funds from 1 February 1990 to 15 April 1995. The work which he carried out on an irregular basis from 27 June 1994 and the job which he held from 15 April 1995 were of a type for which there were sufficient applicants deserving higher priority on the Dutch labour market.        The applicant submits that following his separation from his son's mother he initially went through a difficult period. However, from February 1993 onwards he visited his son between one and three times a week. He also contributed financially to the care and upbringing of the child. After the Regional Court's decision of 24 January 1995 not to establish a formal access arrangement, his former wife refused to allow the applicant contact with his son. For this reason he stopped his financial contributions, hoping in this way to exert pressure on the mother to grant him access.        Even though the applicant had been in receipt of social security benefits, he was gainfully employed at the time of the Regional Court's decision not to extend his residence permit. As he was thus contributing to Dutch society by paying taxes and social security contributions, the fact that there were other people available on the Dutch labour market to do the same work should not, in the applicant's opinion, have had the decisive importance which was attributed to it by the Dutch authorities.        Having regard to the parties' submissions, the Commission considers that the case raises complex issues of law and fact under the Convention, which require an examination of the merits. The application cannot, therefore, be declared inadmissible as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.        For these reasons, the Commission, unanimously,        DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without      prejudging the merits of the case.          M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber