CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 juillet 2004

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Costa , President ,   Mr   L. Loucaides ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   W. Thomassen ,   Mr   A.B. Baka ,   Mr   M. Ugrekhelidze, judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged on 17 December 1999, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mrs Alcidia Ramos Andrade, has both Netherlands and Cape Verdean nationality. She was born in 1966 and lives in Rotterdam. She was represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant moved from the Cape Verde Islands to the Netherlands on 24 October 1993. Her daughters Deisy Lara, born in 1988, and Dercilene, born in 1990, stayed behind in the care of the applicant’s mother. According to the applicant, the girls’ biological father, Mr T. Fortes Nascimento, has never had any involvement with his daughters’ lives; he is currently living in Luxembourg. On 16 March 1994 the applicant applied for a residence permit ( verblijfsvergunning ) enabling her to reside in the Netherlands with her partner Mr V.V., a Netherlands national. This request was refused. The applicant’s subsequent objection ( bezwaar ) and appeal ( beroep ) were declared inadmissible on 22 May and 21 November 1995 respectively. Since 1995 the applicant has been living with Mr L. da L., a Netherlands national. On the basis of this relationship she was granted a residence permit on 4 September 1995. On 28 November 1996 the applicant lodged a request for a provisional residence visa ( machtiging tot voorlopig verblijf ) on behalf of her daughters Deisy and Dercilene. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights. The applicant submitted that she had visited the girls in the summer of 1996, together with her partner Mr L. da L. On this occasion she had had to conclude that her mother was physically and mentally no longer capable of looking after Deisy and Dercilene: the girls were being left to their own devices and were, even by local standards, living in unfavourable conditions. The applicant referred to a doctor’s declaration according to which her mother was suffering from a chronic illness and was indeed incapable of looking after children. She further submitted that she had no other relatives living in the Cape Verde Islands. The requested provisional residence visa was refused by the Minister of Foreign Affairs ( Minister van Buitenlandse Zaken ) on 21 April 1997. The Minister was of the opinion that from 1993 Deisy and Dercilene no longer actually belonged to the applicant’s family unit ( gezin ). It was further held that the refusal of the visa did not constitute a breach of Article 8 of the Convention. The applicant’s objection against this decision, filed on her behalf by a lawyer, was declared inadmissible by the Minister on 1 August 1997 as no grounds for the objection had been submitted. Although possible, no appeal was lodged against this decision. On 8 October 1997 the applicant lodged a new request for a provisional residence visa on behalf of her daughters. She argued that the close family ties ( gezinsband ) between her daughters and herself had always continued to exist: she had remained in contact with them, both through letters and through telephone conversations, and she had also contributed financially and materially to her daughters’ care and upbringing. The reason she had not asked to be reunited with her children soon after her arrival in the Netherlands was due to the fact that her then partner, Mr V.V., had informed her that this would not be possible. The applicant submitted another medical declaration, dated 29 August 1997, according to which her mother was suffering from advanced spondylarthritis of the spine as a result of which she was incapable of caring for minor children. Considering that the new application for a provisional residence visa contained neither new facts nor new circumstances, the Minister of Foreign Affairs rejected it on 11 December 1997 with reference to his previous decisions. The applicant and Mr L. da L. were married on 27 July 1998. On 24 September 1998 a hearing on the applicant’s objection against the Minister’s decision was held before an official committee ( ambtelijke commissie ). At this hearing, the applicant stated that when she had visited her daughters in 1996, they had only just left hospital where they had been admitted after their grandmother had used massage oil in the preparation of food – this had happened because the applicant’s mother was illiterate. She further clarified that it had always been her intention to send for her children as soon as she had a residence permit. Her first partner in the Netherlands had not wanted her to bring the girls to the Netherlands, in addition to telling her that it would not be possible. The applicant’s objection was rejected on 20 October 1998. The Minister held that children who had stayed behind in the country of origin could only then be considered as continuing to belong to their parent’s family unit if that parent had attempted as soon as reasonably possible to have the children join him or her by means of an application for family reunion. The applicant had not provided a plausible explanation as to why she had waited until 28 November 1996 before applying for a provisional residence visa. It had further not been established that the applicant had made a substantial contribution to the cost of her daughters’ care and upbringing. Neither had it appeared that the applicant – who had only once visited her children since moving to the Netherlands – had continued to exercise parental authority or that she had taken any important decisions relating to their upbringing. For these reasons, the Minister concluded that the children had become integrated in the family unit of their grandmother. The refusal of a provisional residence visa was not contrary to Article 8 of the Convention: there was no interference with the right to respect for family life since the applicant’s children were not deprived of a residence permit which had enabled them to exercise family life in the Netherlands, and neither was the State under a positive obligation to grant the girls residence so as to enable the applicant to develop family life with them in the Netherlands. On 5 March 1999 the applicant obtained Netherlands nationality. The applicant appealed the Minister’s decision of 20 October 1998 to the Regional Court ( arrondissementsrechtbank ) of The Hague sitting in Haarlem. Following a hearing, the Regional Court rejected the appeal on 2   June 1999. It agreed with the Minister that the close family ties between the applicant and her daughters had ceased to exist. According to the Regional Court, the period of time between the applicant’s departure from the Cape Verde Islands and the first application for a provisional residence visa for her daughters had been of such duration that it could not be said that the situation of the children living with their grandmother was only temporary. The fact that she had not applied for family reunion sooner because her first partner in the Netherlands was opposed to it, indicated that the applicant had let the relationship with Mr   V.V. prevail over her ties with her daughters. The Regional Court also found that the refusal of a provisional residence visa was not contrary to Article 8 of the Convention, having regard to the fact that it had not appeared that there were any objective impediments preventing the applicant and her daughters from continuing their family life as they had already been doing for a considerable number of years. In this context it attached relevance to the fact that the manner in which the applicant and her children exercised family life was due to the applicant’s own choice to leave her daughters behind in the Cape Verde Islands. Since moving to the Netherlands, the applicant has regularly transferred money to her mother in the Cape Verde Islands in order to pay for her daughters’ upbringing. In addition, once every four months she has sent goods such as clothing, shoes, food, materials for use in school and, on one occasion, glasses. She has kept in contact with her daughters by telephone and, less frequently, by mail. B.     Relevant domestic law At the time relevant to the present application, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1994 (“the Act” - Vreemdelingenwet 1994 ). On 1 April 2001 a new Aliens Act entered into force but this has no bearing on the present case. As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa ( machtiging tot voorlopig verblijf ). Only once such a visa has been issued abroad may a residence permit for the Netherlands be granted. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit. The Government pursue a restrictive immigration policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds. The admission policy for family reunion purposes was laid down in Chapter B1 of the Aliens Circular 1994 (“the Circular” - Vreemdelingencirculaire 1994 ). It provided that the following persons, where relevant, may qualify for family reunion if certain conditions (relating to matters such as public policy and means of subsistence) are met: –     a person’s spouse, –     a minor child born of the marriage who actually belongs to the family unit ( gezin ), and –     a minor child born outside the marriage who actually belongs to the family unit (e.g. a child of one of the spouses from a previous marriage or a foster child). The phrase “actually belonging to the family unit” ( “feitelijk behoren tot het gezin” ) used in Netherlands law only partly overlaps with the term “family life” in Article 8 of the Convention. The former is understood to mean, for instance, that the close family ties ( gezinsband ) between the child and its parents whom it wishes to join in the Netherlands already existed in another country and have been maintained. For the rest, the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case. Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation, the way in which the relationship between parent and child has been developed during the separation, the parent’s involvement in the child’s care and upbringing, custody arrangements, the amount and frequency of the parent’s financial contributions to the child’s care and upbringing, the parent’s intention to send for the child as soon as possible and his/her efforts to do so, and the length of time that the child has lived in a family other than with the parent. The burden of proving that the close family ties between parent and child have not been severed rests with the parent residing in the Netherlands. The longer the parent and child have been separated, the heavier the burden of proof on the person in the Netherlands becomes. It is then incumbent on the parent to present sound reasons as to why he or she did not seek to bring the child to the Netherlands sooner. If it is established that the conditions set in national policy have not been met, an independent investigation is then carried out to ascertain whether family life exists within the meaning of Article 8 of the Convention and, if so, whether this provision of international law imposes on the State an obligation, given the specific circumstances of the case, to permit residence in the Netherlands. COMPLAINT The applicant complained under Article 8 of the Convention that residence in the Netherlands, for the purposes of family reunion, was refused to her daughters by the Netherlands authorities, due to which they could not enjoy family life together. THE LAW The applicant complained about the refusal to authorise the entry to the Netherlands of her minor daughters for the purposes of family reunion. She invoked Article 8 of the Convention which, in so far as relevant, provides 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 ... 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, whilst not contesting that family life within the meaning of Article 8 § 1 existed between the applicant and her daughters, argued that there had been no interference with the applicant’s right to respect for family life, since the authorities’ refusal to allow her daughters to enter the Netherlands did not amount to depriving them of a residence permit that had enabled them to enjoy family life with the applicant in the Netherlands. The Government were further of the opinion that no special facts or circumstances existed which placed their authorities under a positive obligation to allow the applicant’s daughters to enter the country and reside there. In this context they attached relevance to the fact that the applicant had left her daughters behind in 1993 of her own free will and, in accordance with her partner’s wishes, had waited until 1996 before attempting to bring them to the Netherlands. In October 1997, when the applicant applied for family reunion for a second time, the children had already been living with their grandmother for four years. Moreover, the Government submitted that contacts between the applicant and her children were minimal and that there was no evidence to suggest that the applicant had any significant financial and moral involvement in the care and upbringing of her children. The applicant had also not shown that her mother could no longer be considered able to raise and care for the applicant’s children or that the children would be deprived of all care. Finally, the Government pointed out that the applicant’s possession of Netherlands nationality did not pose any obstacles to her returning to and settling in the Cape Verde Islands. The applicant contested the Government’s claim that she had had very little contact with her children after leaving the Cape Verde Islands. In her opinion, it could not be maintained that the close family ties between her children and herself had ceased to exist, bearing in mind that she had supported them financially and in other material respects, as well as taking all the important decisions relating to her daughters’ care and upbringing. The applicant further averred that she had applied for family reunion as soon as reasonably possible. Her first partner in the Netherlands – who, it was true, had been against the idea of her daughters coming to join their mother – had told her that such a reunion was not legally possible and she had believed him. This was, however, irrelevant given that she had not yet been in possession of a residence permit, which meant that her children had in any event not been eligible for family reunion. As soon as she had been granted the permit, she had started saving in order to be able to afford to have her daughters join her. Referring to the case of Şen v. the Netherlands (no. 31465/96, 21   December 2001), and emphasising that she had never intended her separation from her children to be permanent, the applicant submitted that the most appropriate means of ensuring that she could develop family life with her daughters would be for them to move to the Netherlands. Both the applicant and her husband were settled in that country; they were employed there and had also obtained Netherlands nationality. In addition, the fact that the girls’ grandmother in the Cape Verde Islands was no longer able to look after them and that there was nobody else in their country of origin who could do so, made it even more imperative that the children join their mother in the Netherlands. According to the Court’s established case-law, Article 8 of the Convention may impose positive obligations on the State in addition to protecting the individual against arbitrary action by public authorities. In the context of both positive and negative obligations, the State must strike a fair balance between the competing interests of the individual and of the community as whole. However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest (see Ahmut v. the Netherlands , judgment of 28   November 1996, Reports of Judgments and Decisions 1996-VI, pp. 2031 and 2033, §§   63 and 67). In the present case the Court must, therefore, examine whether, in refusing to allow the applicant’s daughters to reside with their mother in the Netherlands, the respondent State can be said to have struck a fair balance between the applicant’s interests on the one hand and its own interest in controlling immigration on the other. The Court observes that when the applicant left the Cape Verde Islands in October 1993 to go to the Netherlands and start a relationship there, she decided voluntarily to leave behind her daughters, who were five and three years’ old respectively at that time and completely dependent on others. Whilst it is the applicant’s submission that she never envisaged being permanently separated from her daughters, the Court notes that she nevertheless accepted to stay with her partner in the Netherlands even though, according to what her partner had told her, this meant that she could not be reunited with her children. Furthermore, when the relationship with her partner subsequently broke down, the applicant chose not to return to the Cape Verde Islands but to remain in the Netherlands instead. In addition, once the applicant, in September 1995, had been granted a residence permit on the strength of her new relationship with a Netherlands national, she waited more than a year before applying for a provisional residence visa on behalf of her daughters. The proceedings on that application came to an end because the applicant failed to submit grounds for her objection against the decision dismissing her request. When she lodged a second request for a provisional residence visa in October 1997, the applicant had already been residing in the Netherlands for four years. The Court is not persuaded by the applicant’s argument that her case should not be distinguished from the case of Şen v. the Netherlands (cited above). On the contrary, it is to be noted that, unlike the parents in the Şen case, the applicant does not have children who were born in the Netherlands, who are dependent on her and who have few or no ties with their mother’s country of origin (see Şen , § 40). Finally, the Court considers that it has not been shown that major obstacles exist preventing the applicant from returning to the Cape Verde Islands and developing family life with her daughters in that country. In this context the Court has also had regard to the fact that the applicant’s children have always lived there and have therefore grown up in that country’s cultural and linguistic environment (see Gül v. Switzerland , judgment of 19   February 1996, Reports 1996-I, p. 176, § 42). In conclusion, the Court cannot find that the authorities of the respondent State acted in breach of Article 8 of the Convention in holding that, in the particular circumstances of the present case, respect for family life did not confer a right on the applicant to be joined by her children in the Netherlands. Therefore, those authorities cannot be said to have failed to strike a fair balance between the applicant’s interests on the one hand and its own interest in controlling immigration on the other. The Court finds that the present case does not disclose any appearance of a violation of Article 8. It follows that the application is to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   S. Dollé   J.-P. Costa   Registrar   President