THIRD SECTION
DECISION
Application no. 37075/06
by Weili CHEN
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 15 May 2007 as a Chamber composed of:
MrB.M. Zupančič, President,
MrC. Bîrsan,
MrsE. Fura-Sandström,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Berro-Lefèvre, judges,
and Mr S. Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 11 September 2006,
Having regard to the information submitted by the respondent Government under Rule 49 § 3 of the Rules of Court and the comments in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Weili Chen, is a Chinese national who was born in 1979 and lives in Alphen aan den Rijn. She was represented before the Court by Mr A. Kleijweg, a lawyer practising in The Hague.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant entered the Netherlands on 1 May 1996 and, on 28 August 2001, she was granted a Netherlands residence permit on the basis of her marriage to a Netherlands national. The applicant and her husband, who are self-employed, have two children who were born in 1999 and 2002, respectively. The applicant’s residence permit was valid until 20 June 2002, and was later prolonged until 20 June 2003.
Although, pursuant to the relevant immigration rules, the applicant should have filed a request to prolong the validity of her residence permit at the latest on 19 June 2003, it was only on 17 March 2004 that the competent Netherlands authorities received a request to this effect. The applicant explained that this delay had been caused by the fact that she had sent the prolongation request for linguistic verification and completion with financial data (to demonstrate compliance with the income requirements under the applicable immigration rules and regulations) to the accountant of her husband’s company. However, unaware of the time-limit applicable to such a prolongation request, the accountant had only transmitted the request to the immigration authorities after having finalised the company’s annual accounts, which he had appended to the prolongation request. The applicant requested the immigration authorities not to hold the failure to respect the time-limit against her.
On 28 October 2004, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) rejected the applicant’s prolongation request for having been filed out of time. As the failure to respect the applicable time-limit was found imputable to the applicant, her request was considered as a first request for admission to the Netherlands. In this respect the Minister noted that the applicant did not hold the required provisional residence visa (machtiging tot voorlopig verblijf) issued by a Netherlands mission in China. Such a visa is a prerequisite for entertaining a request for a regular residence permit for stay with a partner in the Netherlands, unless the alien is dispensed from this obligation or unless maintaining this obligation would entail undue hardship. Having noted the relevant policy guidelines, the Minister considered that the applicant was not eligible for dispensation from this requirement and – rejecting the applicant’s arguments that she had to care for a very young child and that she had no family in China – that maintaining this requirement did not entail undue hardship for the applicant.
The applicant’s objection (bezwaar) against this decision was rejected by the Minister on 4 May 2005. The applicant’s appeal against this decision was accepted on 30 September 2005 by the Regional Court (arrondissementsrechtbank) of The Hague. It held that the failure to respect the time-limit at issue was imputable to the applicant and that the Minister had thus correctly considered her request as a first request for admission. However, as the applicant was caring for two young children who went to school in the Netherlands and as she was working in the family business, it considered that maintaining the provisional residence visa requirement entailed undue hardship. Consequently, it quashed the decision of 4 May 2005 and instructed the Minister to take a fresh decision.
The Minister filed an appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) which, on 16 March 2006, quashed the ruling of 30 September 2005 and rejected the applicant’s appeal against the Minister’s decision of 4 May 2005. It noted that, according to accepted policy rules, the “hardship clause” was only to be applied in very exceptional cases and that, in this area, the Minister enjoyed a wide margin of appreciation. It agreed with the Minister that the Regional Court had overstepped its “judicial review” competence under domestic administrative law by having made its own finding that the “undue hardship” clause should be applied in the applicant’s case whereas it was only competent to review the question whether or not the Minister’s decision to maintain the provisional residence visa requirement was arbitrary or could, in all reasonableness, not have been taken. Moreover, pursuant to the relevant immigration rules, application of the “undue hardship” clause was excluded in cases where an alien had filed a request for a prolongation of a residence permit too late and for reasons imputable to him/herself. No further appeal lay against this decision.
On 9 June 2006, the applicant filed a fresh request for a residence permit which was rejected on 1 September 2006. On 11 September 2006, the applicant filed an objection against this decision.
B. Events after the introduction of the application
On 27 September 2006, the respondent Government were requested under Rule 49 § 3 (a) of the Rules of Court to indicate whether the applicant, apart from the requirement to hold a provisional residence visa, met all material requirements for a residence permit.
On 18 December 2006 – after having obtained from the applicant all information, including information about her financial position, necessary for assessing this question –, the Government informed the Court that, apart from the provisional residence visa requirement, the applicant did indeed meet all material conditions. By letter of 19 March 2007, the Government further informed the Court that, on 14 March 2007, the applicant’s objection of 11 September 2006 had been determined and that she had been granted a residence permit valid from 15 December 2006 until 9 June 2008. On the basis of this circumstance, the Government requested the Court to strike the application out of the list of cases pending before the Court.
In her reaction of 6 April 2007, the applicant confirmed that she had been granted a residence permit, but requested the Court to pursue its examination of her case for the purposes of obtaining compensation for the damages incurred by her. The applicant explained that, on 5 February 2007, the Deputy Minister of Social Affairs and Employment (Staatssecretaris van Sociale Zaken en Werkgelegenheid) had notified her husband’s company of the intention to impose a fine of 8,000 euros for having violated the Foreign Workers (Employment) Act (Wet arbeid vreemdelingen) on 7 October 2006 when inspectors had found the applicant working in the company without holding the required work permit.
COMPLAINT
The applicant initially complained that the Netherlands authorities’ refusal to prolong her residence permit and to dispense her from the obligation to hold a provisional residence visa was contrary to her rights under Article 8 of the Convention.
THE LAW
The applicant complained that the decision to refuse a residence permit and to dispense her from the obligation to hold a provisional residence visa for the purpose of residing with her husband contravened Article 8 of the Convention, which guarantees the right to respect for family life. However, the Court notes that the applicant has now been granted a residence permit and that there is no indication in the case file that the Netherlands authorities have ever attempted to remove her from the Netherlands and thus separate her from her husband and children. The applicant does, however, wish to maintain her application in order to seek compensation for the fine which the authorities intend to impose on her husband’s company.
This fine does, however, not concern a right or freedom guaranteed by the Convention. On this point, the Court reiterates that the Convention does not, as such, guarantee the right to work (see Coorplan-Jenni GmbH and Elvir Hascic v. Austria (dec.), no. 10523/02, 24 February 2005). Accordingly, the Court is of the opinion that, in the circumstances of the case and having regard to Article 37 § 1 (b and c) of the Convention, the matter has been resolved and that it is no longer justified to continue the examination of application (see, mutatis mutandis, Kohinur and Others v. Sweden (dec.), no. 4144/05, 31 January 2006; and T.A. and Others v. Sweden (dec.), no. 27174/05, 27 June 2006). Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights defined in the Convention and its Protocols which require the examination of the application to be continued.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Stanley NaismithBostjan M. Zupančič
Deputy RegistrarPresident
Full & Egal Universal Law Academy