AS TO THE ADMISSIBILITY OF
Application No. 18056/91
by Fatima AKABBOUZ
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 January 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. 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 22 August 1990 by
Fatima AKABBOUZ against the Netherlands and registered on 9 April 1991
under file No. 18056/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the Commission's decision of 13 May 1993 to communicate the
application;
- the observations submitted by the respondent Government on 30
July 1993 and the observations in reply submitted by the
applicant on 28 September 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Moroccan citizen born in 1959. At the time
of the introduction of the application, she was residing at Gouda in
the Netherlands. Before the Commission she is represented by Mrs. R.S.
Nandoe, a lawyer practising at Alkmaar.
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 6 July 1981 the applicant was granted a residence permit for
extended family reunification (verruimde gezinshereniging). The permit
was prolonged several times, the last time until 6 July 1985. During
a summer holiday in 1984 with her family in Morocco, the applicant's
grandmother became very ill. Pursuant to Moroccan tradition, her
father entrusted the applicant with the care of her grandmother. The
applicant stayed in Morocco until 15 June 1989 when her grandmother
died. According to the applicant, during this time she and her
grandmother were financially supported by her father. Being
illiterate, she kept in touch with her family by means of taped
messages. Her family came each summer to Morocco.
After the death of her grandmother, the applicant returned to the
Netherlands in September 1989 and, in March 1990, applied for a
prolongation of her residence permit. On 6 March 1990 the Head of the
local police of Gouda informed the applicant that this request could
not be dealt with as the permit had expired on 5 July 1985, but that
she could apply for a new residence permit.
On 28 March 1990 the applicant's request for a new residence
permit was rejected by the Head of the local police of Gouda, who
considered that the applicant's family life with her parents in the
Netherlands had ceased to exist when she stayed in Morocco, that she
had not taken any steps to have her initial residence permit prolonged
and, as she had been living almost independently in Morocco for the
last five years, that sending her back to Morocco would not constitute
unreasonable hardship. On 1 May 1990 the applicant filed a request for
review (herziening) with the Deputy Minister of Justice who informed
her on 14 May 1990 that her request was denied suspensive effect. As
the Deputy Minister of Justice did not determine this request within
the statutory time-limit, the applicant appealed against this presumed
refusal (fictieve weigering) to the Judicial Division of the Council
of State (Afdeling Rechtspraak van de Raad van State) on
24 August 1990.
To avoid expulsion pending the outcome of the proceedings, the
applicant started injunction proceedings (kort geding) before the
President of the Regional Court (Arrondissementsrechtbank) of The
Hague. On 15 August 1990, the President refused her request for an
injunction on her expulsion considering that the applicant had failed
to show that it had been her intention to keep her main residence in
the Netherlands and that, even assuming there still was a family life
within the meaning of Article 8 para. 1 of the Convention between her
and her parents in the Netherlands, her expulsion to Morocco would be
justified under para. 2 of this provision, as being necessary in the
interest of the economic well-being of the country. He further held
that an expulsion would not entail any hardship for the applicant since
she had always lived in Morocco with the exception of three years.
Having regard to her age, she was considered to be able to freely
choose her residence in Morocco and live there independently. He also
noted that she has an uncle and an aunt in Morocco. Moreover, her
father could continue to support her financially as he had done so far.
On 29 April 1992 the Court of Appeal (Gerechtshof) of The Hague
upheld the decision of the President of the Regional Court and
dismissed the applicant's appeal.
At the applicant's representative's request, the International
Social Service carried out an investigation in Morocco in respect of
an uncle of the applicant. A report was drawn up in May 1992 from
which it appears that this uncle lives in an isolated place and that
in any event he refuses to receive the applicant.
By decision of 19 May 1992 the Judicial Division of the Council
of State rejected the applicant's appeal against the presumed refusal
to give her a residence permit. It noted that the applicant's residence
permit had expired four years and eight months ago, so that the rules
regulating the new entry of aliens to the Netherlands applied to her
case. On the basis of these rules, the applicant did not qualify for
a new residence permit. The Council of State found no indication that
the applicant, after having spent five years without her parents in
Morocco and given her age, would be unable to live there independently.
As to the right to respect for family life within the meaning of
Article 8 para. 1 of the Convention, the Council of State held that,
at the time the applicant requested a residence permit, family life
existed between the applicant and her parents. Nevertheless, since the
decision complained of did not deprive the applicant of a residence
title, the Judicial Division found no interference with the applicant's
right to respect for her family life within the meaning of Article 8
para. 1 of the Convention. According to the Council of State there were
no positive obligations incumbent on the Netherlands Government to
grant a residence permit to the applicant, taking into account that the
refusal did not prevent the continuation of the family life as it had
existed between the applicant and her parents before she left Morocco.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 February 1991 and registered
on 9 April 1991.
On 13 May 1993 the Commission decided to communicate the
application to the respondent Government and to invite them to submit
written observations on the admissibility and merits of the application
under Article 8 of the Convention.
The Government's observations were submitted on 30 July 1993.
By letter of 28 September 1993 the applicant's representative informed
the Commission that the Government's observations did not call for a
reply, since they did not contain any new information.
COMPLAINTS
1. The applicant complains that her expulsion to Morocco would
unjustly interfere with her family life. She points out that she has
always been financially dependent upon her father, that she maintained
a regular contact with her family in the Netherlands and that she never
had any contact with her uncle and aunt in Morocco nor with any other
relative. She invokes Article 8 of the Convention.
2. The applicant also complains under Article 3 of the Convention
that her expulsion to Morocco would amount to inhuman treatment. She
submits in particular that in Morocco a young unmarried woman who does
not live with her parents or relatives is held in such contempt that
she will be socially isolated.
3. The applicant finally complains that she did not have the
possibility to present her case to an independent and impartial
tribunal and that in any event no effective remedy was available to her
under Dutch law. She relies in this respect on Articles 6 para. 1 and
13 of the Convention.
THE LAW
1. The applicant complains under Article 8 para. 1 (Art. 8-1) of the
Convention that her expulsion to Morocco would unjustly interfere with
her family life.
Article 8 (Art. 8) of the Convention, insofar as relevant, reads:
"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 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 Government consider that the refusal of the Dutch authorities
to grant the applicant a residence permit did not amount to an
interference with her right to respect for her family life. Firstly,
there is no "family life" within the meaning of Article 8 (Art. 8). The
applicant had left the Netherlands entirely of her own accord and had
lived quite independently in Morocco for five years. By choosing to
live in the country of her birth for such a long time, the applicant
severed the ties of family life. Secondly, should any "family life" be
deemed to exist, the Netherlands authorities did not interfere with it.
Four years and eight months after the residence permit of the applicant
had expired, she notified the authorities that she wished to be
reunited with her parents. The authorities were thus not withdrawing
a residence permit which enabled the applicant to enjoy her alleged
family life in the Netherlands. Thirdly, assuming that the refusal to
grant a residence permit constituted an interference with the
applicant's right to respect for family life, such interference is
justified under Article 8 para. 2 (Art. 8-2) of the Convention, being
necessary in the interest of the economic well-being of the country.
The Commission has repeatedly held that no right of an alien to
enter or to reside in a particular country, nor a right not to be
expelled from a particular country, is as such guaranteed by the
Convention (see No. 12461/86, Dec. 10.12.86, D.R. 51, pp. 258, 264).
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 immediate family resides may raise an issue
under this provision of the Convention (cf., for example, No. 7816/77,
Dec. 19.5.77, D.R. 9 p. 219, No. 8245/78, Dec. 6.5.81, D.R. 24 p. 98
and No. 13654/88, Dec. 8.9.88, D.R. 57 pp. 287, 289).
The question whether or not there is family life is essentially
a question of fact, depending upon the real existence in practice of
close personal ties. Relationships between adults do not necessarily
attract the protection of Article 8 (Art. 8) of the Convention without
further elements of dependency, involving more than the normal
emotional ties (cf. No. 9478/81, Dec. 8.12.81, D.R. 27 p. 243).
However, the Commission does not need to resolve whether family
life exists in the present case, as this complaint is in any event
manifestly ill-founded for the following reasons.
Even assuming that the refusal to grant the applicant a residence
permit constituted an interference with her right to respect for her
family life within the meaning of Article 8 para. 1 (Art. 8-1) of the
Convention, the Commission notes that the decision to refuse the
applicant a residence permit was taken on the basis of Dutch
immigration policy, which lays down special conditions for the granting
of residence permits for family reunification.
The Commission observes that the policy followed by the Dutch
authorities in such cases is clearly related to the economic well-being
of the country, in particular to the authorities' concern to regulate
the labour market, and generally to restrict immigration into a densely
populated country. The legitimate aim pursued is, thus, the
preservation of the country's economic well-being within the meaning
of Article 8 para. 2 (Art. 8-2) of the Convention (cf. Eur. Court H.R.,
Berrehab judgment of 21 June 1988, Series A no. 138, p. 15, para. 26).
In the present case, the Commission notes that the applicant,
with the exception of three years, has always lived in Morocco. She was
capable of taking care of her grandmother between the summer of 1984
and June 1989. She is at present 34 years old and has an uncle and an
aunt in Morocco.
The Commission considers, despite the humanitarian aspect of the
case, that in the present circumstances respect for the applicant's
family life does not outweigh valid considerations relating to Dutch
immigration policy (cf. No. 13654/88, Dec. 8.9.88, D.R. 57 p. 287).
The Commission therefore finds that the interference complained
of is in accordance with the law and may reasonably be regarded as
being necessary in a democratic society in the interests of the
economic well-being of the country. It is thus justified under Article
8 para. 2 (Art. 8-2) of the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains under Article 3 (Art. 3) of the
Convention that her expulsion to Morocco would amount to inhuman
treatment, given that in Morocco a young unmarried woman who does not
live with her parents or relatives is held in such contempt that she
will be socially isolated.
Article 3 (Art. 3) of the Convention provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that the decision by a Contracting State
to expel an individual can, in certain circumstances, prove to be in
breach of the Convention and particularly of Article 3 (Art. 3), when
there are serious reasons to believe that he or she could be subjected
to treatment prohibited by the said Article 3 (Art. 3) in the State to
which he or she would be sent (see e.g. No. 6315/73, Dec. 30.9.74, D.R.
1 p. 73; No. 7011/75, Dec. 3.10.75, D.R. 4 p. 215; No. 12122/86, Dec.
16.10.86, D.R. 50 p. 268; Eur. Court H.R. Cruz Varas judgment of 20
March 1991, Series A no. 201, paras. 69-70). This may be so even if the
danger does not emanate from public authorities for whom the receiving
State is responsible (No. 12461/86, Dec. 10.12.86, D.R. 51 p. 258, No.
21350/93, Dec. 13.10.93, unpublished). The Commission finally recalls
that to fall within the scope of Article 3 (Art. 3) of the Convention,
ill-treatment must attain a minimum level of severity (cf. No.
10142/82, Dec. 8.7.85, D.R. 42 p. 86).
The Commission notes that in the domestic proceedings the
applicant's allegations of a risk of treatment contrary to Article 3
(Art. 3) in Morocco have been dismissed as being unfounded.
After examination of the facts the Commission considers that the
situation of which the applicant complains is not such as to raise an
issue under Article 3 (Art. 3) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant finally complains that she did not have the
possibility to present her case to an independent and impartial
tribunal and that in any event no effective remedy was available to her
under Dutch law. She relies in this respect on Articles 6 para. 1 and
13 (Art. 6-1, 13) of the Convention.
The Commission recalls its constant case-law according to which
Article 6 para. 1 (Art. 6-1) of the Convention is not applicable to
proceedings concerning residence permits for aliens.
This complaint, insofar as the applicant relies on Article 6
para. 1 (Art. 6-1) of the Convention, must consequently be rejected as
being incompatible ratione materiae with the provisions of the
Convention.
Assuming the applicant had an arguable claim under Article 13
(Art. 13) of the Convention, which provision guarantees to everyone
whose rights and freedoms under the Convention are violated an
effective remedy before a national authority, the Commission, recalling
its findings under Article 3 and Article 8 (Art. 3, 8) of the
Convention and noting that the applicant could and in fact did make use
of the remedies available under Dutch law in order to challenge the
refusal to grant her a residence permit and her expulsion from the
Netherlands, finds the complaint under this provision to be manifestly
ill-founded.
It follows that this complaint must be rejected under Article 27
para. 2 (Art. 27-2) 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) (S. TRECHSEL)
Full & Egal Universal Law Academy