AS TO THE ADMISSIBILITY OF
Application No. 14852/89
by Mohammad Johangir AKHTAR, Asad JOHANGIR,
and Saqib JOHANGIR
against the Netherlands
The European Commission of Human Rights sitting in private on 7
April 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 January 1989
by Mohammad Johangir AKHTAR, Asad JOHANGIR and Saqib JOHANGIR against
the Netherlands and registered on 31 March 1989 under file No.
14852/89;
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 first applicant, M.J. Akhtar, born in 1945, is a naturalised
Dutch citizen and resides in Zaandam, the Netherlands. The second and
third applicants, A. and S. Johangir are his sons. They are Pakistani
citizens, born on respectively 16 June 1967 and 5 September 1974, and
reside in Jhelum, Pakistan. Before the Commission, the applicants are
represented by Mr. G. Caarls, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the parties, may be
summarised as follows.
According to the first applicant, his first wife S. Begum, whom
he married in Pakistan in 1962, died in 1977. Out of this marriage
three children were born in 1964, 1967 (the second applicant) and 1974
(the third applicant). Until 1979 the applicants lived together with
the first applicant's father, the first applicant's brother, the
latter's wife and their five children, in one house in Pakistan.
In 1979, the first applicant went to the Netherlands, where he
resided illegally until his expulsion to Pakistan on 2 December 1981.
In the course of 1982 he returned to the Netherlands. On 13 September
1982 he married a Dutch woman, who already had three children from a
previous marriage. This marriage made him eligible for a residence
permit, which he in fact obtained on 11 November 1982. He obtained
Dutch nationality by Royal Decree on 28 October 1987.
At present the first applicant does not live with his second wife
anymore. She started divorce proceedings in the course of 1990.
As from 1979, the first applicant's children stayed with his
brother. The first applicant supported his children financially
insofar as his financial means allowed and maintained regular contacts
by correspondence, telephone and annual visits.
On 22 November 1985 the first applicant requested an
authorisation for temporary stay (machtiging tot voorlopig verblijf)
on behalf of his three children for family reunification. At the
moment of this request the second and third applicants were
respectively 18 and 11 years old. By decision of 24 January 1986,
communicated to the applicants by letter of 24 February 1986 from the
Netherlands Embassy in Islamabad, the Minister of Foreign Affairs
rejected the request.
On 20 March 1986 the first applicant filed an appeal against this
decision with the Judicial Division of the Council of State (Afdeling
Rechtspraak van de Raad van State) in which he invoked Article 8 of the
Convention.
On 24 November 1987 the first applicant requested the President
of the Judicial Division of the Council of State to grant an interim
measure (voorlopige voorziening), which was rejected by the President's
decision of 22 January 1988.
In its decision of 19 July 1988 the Judicial Division of the
Council of State rejected the first applicant's appeal of 20 March
1986. It considered that the Minister of Foreign Affairs, in weighing
all the interests involved, had given a reasonable decision. In
respect of Article 8 of the Convention it considered that at the time
of the contested decision no family life between the first applicant
and his three children existed anymore, as they had been taken into the
family of the first applicant's brother on a permanent basis, whereas
the first applicant had founded a new family in the Netherlands, of
which the three children from his previous marriage never formed a
part. The Judicial Division held furthermore that the first applicant
had failed to demonstrate how he was involved in the upbringing of
these three children and that, even if he visited them annually and
even if they were financially dependent on him, this would not alter
the decision having regard in particular to the already advanced age
of the children concerned.
In their further observations on the merits, the Government state
that, in connection with renewed requests on the part of the first
applicant for family reunion with various persons from Pakistan
including S. Johangir, the third applicant, a number of new facts have
come to light.
On 21 December 1990, the first applicant and his Dutch spouse
were formally divorced. The first applicant submitted a renewed
application for family reunion, in which he requested admission for
Mrs. T. Akhtar, whom he claims to have married in 1991, his son S.
Johangir (the third applicant) from his previous marriage with S. Begum
and Mrs. T. Akhtar's four children from a previous marriage.
According to the Government, an investigation by the Netherlands
Embassy in Islamabad into the authenticity of the documents submitted
by the first applicant in support of his new application for family
reunion resulted in the following information:
- the first applicant and Mrs. S. Begum were never married; nor was
the first applicant the father of any children born to Mrs. Begum;
- the first applicant married Mrs. T. Akhtar in 1973, which
marriage has not, to date, been dissolved. They have three children,
of whom the third applicant is one.
The Government state that the first applicant has been informed
of the results of this investigation and that, at his own request, he
has been given until the end of February to submit authentic documents
in support of his request for family reunion.
COMPLAINT DECLARED ADMISSIBLE
The applicants complain under Article 8 of the Convention that,
by refusing the third applicant access to the Netherlands, the
Netherlands authorities have prevented a family reunification of the
first applicant with this child. The applicants are of the opinion
that the concept of family life has been interpreted too narrowly by
the respondent State.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 January 1989 and registered
on 31 March 1989.
On 7 May 1990 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.
The Government's observations were submitted on 4 September 1990
and the applicants' reply thereto on 19 October 1990.
The Commission decided on 29 June 1992 to declare admissible the
first and third applicants' complaint under Article 8 of the Convention
and inadmissible the remainder of the application.
The Government submitted further observations on 7 October 1992
and supplementary observations on 13 January 1993.
Following the applicants' request to be allowed to react on the
Government's further observations, they were invited to submit their
observations before 1 February 1993.
By letter of 4 February 1993, the Commission informed the
applicants that their observations in reply had, so far, not been
received and transmitted the Government's supplementary observations.
The applicants were requested to include these supplementary
observations in their observations in reply.
Following the applicants' request for an extension of the time-
limit for the submissions of their observations in reply, the President
of the Commission agreed to extend the time-limit until 19 March 1993.
The applicants have not made any submissions since then.
THE LAW
1. The applicants complain under Article 8 (Art. 8) of the
Convention that, by refusing the third applicant access to the
Netherlands, the Netherlands authorities have prevented a family
reunification of the first applicant with his child. The applicants
are of the opinion that the concept of family life has been interpreted
too narrowly by the respondent State.
The Commission recalls its decision of 29 June 1992 to declare
admissible the first and third applicants' complaint under Article 8
(Art. 8) of the Convention and inadmissible the remainder of the
application.
In their supplementary observations of 13 January 1993 the
Government submitted that, following his divorce from his Dutch spouse,
the first applicant submitted a renewed application for family reunion,
in which he requested admission for Mrs. T. Akhtar, whom he claims to
have married in 1991, his son S. Johangir (the third applicant) from
his previous marriage with S. Begum and Mrs. T. Akhtar's four children
from a previous marriage.
The Government further submit that an investigation by the
Netherlands Embassy in Islamabad into the authenticity of the documents
submitted by the first applicant in support of his new application for
family reunion resulted in the following information:
- the first applicant and Mrs. S. Begum were never married; nor was
the first applicant the father of any children born to Mrs. Begum;
- the first applicant married Mrs. T. Akhtar in 1973, which
marriage has not, to date, been dissolved. They have three children,
of whom the third applicant is one.
The Government state that the first applicant has been informed
of the results of this investigation and that, at his own request, he
has been given until the end of February to submit authentic documents
in support of his request for family reunion.
According to the Government, the information gathered by them has
shown that certain of the facts on which the first applicant has based
his application are untrue. The Government submit that their Embassy
in Islamabad has noted that all but one of the documents produced by
the first applicant are false and that the first applicant must have
been aware of these forgeries.
The Government finally submit that, if it had been known in 1982,
when the first applicant married a Dutch national - through which he
acquired the right of residence - , that he was already married, this
marriage could never have taken place, as bigamy is prohibited in the
Netherlands.
The Government, therefore, ask the Commission to apply Article
29 (Art. 29) of the Convention and to reject the application on the
basis of abuse of the right of petition within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
Article 29 (Art. 29) of the Convention provides:
"After it has accepted a petition submitted under Article
25 (Art. 25), the Commission may nevertheless decide by a
majority of two-thirds of its members to reject the
petition if, in the course of its examination, it finds
that the existence of one of the grounds for non-acceptance
provided for in Article 27 (Art. 27) has been established.
In such a case, the decision shall be communicated to the
parties."
The Commission notes that the applicants have not disputed the
Government's findings and, therefore, considers that the new facts
concerning the applicants' family life should be taken into
consideration in the examination of the applicants' complaint under
Article 8 (Art. 8) of the Convention.
The Commission recalls that the Convention does not guarantee a
right to enter or reside in a particular country. However, the
Commission has also held that, 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. 11278/84, Dec. 1.7.85, D.R. 43 p. 216).
Article 8 (Art. 8) of the Convention, insofar as relevant,
provides as follows:
"1. Everyone has the right to respect for his (...) family
life (...)."
In its decision of 29 June 1992 the Commission considered that
there was family life between the first applicant and S. Johangir,
which had been interfered with by reason of the authorities' refusal
to allow this son to join his father in the Netherlands.
However, it appears that the third applicant has substantial
links with Pakistan, where he has always lived and where also his
mother and two brothers reside. The third applicant, who at present is
eighteen years old, has not lived with his father since 1979, when the
latter moved to the Netherlands.
The Commission considers that in these circumstances the decision
by the Dutch authorities to refuse the third applicant access to the
Netherlands does not amount to lack of respect for the applicants'
family life within the meaning of Article 8 (Art. 8) of the Convention.
It follows that the complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
Under these circumstances, the Commission is of the opinion that
the remaining part of the application should be rejected under Article
29 (Art. 29) of the Convention since one of the grounds for
inadmissibility provided for in Article 27 (Art. 27) of the Convention
has been established.
For these reasons, the Commission, by a majority of two-thirds,
Acting under Article 29 (Art. 29) of the Convention,
REJECTS THE REMAINING PART OF THE APPLICATION.
Deputy Secretary to the Commission President of the Commission
(M. de Salvia) (C.A. Nørgaard)
Full & Egal Universal Law Academy