Communicated on 7 May 2018
THIRD SECTION
Applications nos. 6315/08 and 9597/12
Mustafa CÜZDAN against the Netherlands
lodged on 2 February 2012 and 5 February 2008 respectively
STATEMENT OF FACTS
1. The applicant in both cases, Mr Mustafa Cüzdan, is a Turkish national who was born in 1992 and lives in Hoogezand. In application no. 6315/08 he is represented before the Court by Mr R. van Asperen, currently a legal advisor practising in Haren. In application no. 9597/12 he was initially represented by Mr B. van Dijk, a lawyer practising in Haren, and currently by the aforementioned Mr Van Asperen.
2. The facts of the cases, as submitted by the applicant, may be summarised as follows.
A. Application no. 6315/08
3. The applicant’s father, also a Turkish national, was born in 1966 and has been living in the Netherlands since 1976. He married the applicant’s mother, a Turkish national, in 1991 and took her to the Netherlands. When she was three months pregnant, she left her husband and returned to Turkey. Shortly after giving birth to the applicant, she left him with his paternal grandparents in Turkey, who looked after him. The applicant has had no more contact with his mother. After a number of years, his grandmother left his grandfather and moved to the Netherlands. Subsequently, his grandfather found a new partner. After being informed that the applicant was being ill-treated by his grandfather and the latter’s partner and that they no longer wished to take care of the applicant, his father brought the applicant to the Netherlands on 25 October 2000, when he was eight years old.
4. On 7 November 2000 an application for a residence permit enabling the applicant to reside with his father in the Netherlands was lodged on his behalf. The application was rejected by the domestic administrative and judicial authorities at several levels because the applicant did not hold a provisional residence visa (machtiging tot voorlopig verblijf), which had to be applied for at a Netherlands mission and issuance awaited in the country of origin. After the final decision, which was taken by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) on 19 December 2007, the applicant nevertheless remained with his father in the Netherlands.
B. Developments following the lodging of application no. 6315/08
5. On 6 February 2008, the President of the Section declined the applicant’s request to issue an interim measure pursuant to Rule 39 of the Rules of Court. It was nevertheless decided to give notice of the application to the Government in accordance with Rule 40 of the Rules of Court.
6. After receiving a summons to report to the local police pursuant to a provision of the Aliens Act 2000 (Vreemdelingenwet 2000), the applicant once more applied for an interim measure pursuant to Rule 39 of the Rules of Court on 22 February 2011 in order to prevent his expulsion pending the proceedings before the Court. Before taking a decision on that request, a number of questions were put to the Government under Rule 49 § 3 (a) of the Rules of Court.
7. In their replies of 24 March 2011, the Government stated that they currently had no concrete intention of expelling the applicant. They moreover informed the Court that on 24 June 2009 the applicant had made a new application for a residence permit for the purpose of residing in the Netherlands with his father and that the proceedings related to that application were ongoing before the Administrative Jurisdiction Division.
8. The applicant withdrew his request for an interim measure on 17 May 2011 in view of the information provided by the Government. He also submitted the case file relating to his second application for a residence permit referred to by the Government.
C. Application no. 9597/12
9. This application was lodged after the proceedings referred to in the Government’s letter of 24 March 2011 (see paragraph 7 above) had come to an end and is based on the following facts.
10. On 2 May 2009 a change in the law, entailing the introduction of new grounds for granting an exemption from the requirement to hold a provisional residence visa, entered into force. It concerned minors attending school whose main residence had been in the Netherlands for an uninterrupted period of three years and who wished to live with a parent lawfully residing in that country; as such, it applied to the applicant. Accordingly, he lodged a new application for a residence permit on 24 June 2009, when he was 17 years old.
11. The application was rejected by the Deputy Minister of Justice (staatssecretaris van Justitie) on 1 October 2009 because the applicant’s father did not meet the minimum income requirement under the applicable immigration rules. The Deputy Minister noted that the father’s sole income consisted of general welfare benefits under the Work and Social Assistance Act (Wet Werk en Bijstand); however, such benefits were not accepted as being part of the means of subsistence within the meaning of the immigration rules. A dispensation from the income requirement could in such a situation only be granted if the recipient of the benefits at issue was in a position where he or she was unable on a long-term basis to comply with the obligation to endeavour to obtain employment (plicht tot arbeidsinschakeling) as set out in section 9(1) of the Work and Social Assistance Act. A situation of such a lasting inability was considered to exist if the competent local authorities had exempted the recipient from the obligation for a period of five years prior to the application for a residence permit or to the decision on that request, and if it was not to be expected that he or she would, within a reasonable time, be in either full or part-time employment. It was held that no documents had been submitted demonstrating that the applicant’s father was unable to comply with the obligation to endeavour to obtain employment.
Although the Deputy Minister accepted that the applicant and his father had family life, she considered that the refusal of a residence permit did not amount to an interference with the right to respect for that family life within the meaning of Article 8 of the Convention since it did not divest the applicant of a right of residence held by him. Moreover, there was no objective impediment to the family life being enjoyed outside the Netherlands. Finally, while the refusal of a residence permit in a situation in which it was clear that the conditions for granting such a permit could never be met might be incompatible with Article 8, that was not the situation in the case at hand.
12. The applicant lodged an objection (bezwaar), arguing, inter alia, that his father had been exempted from the obligation to endeavour to obtain employment but that the immigration authorities had not enquired into that issue and that it was not clear whether that exemption had been laid down in an official decision. It would in any event be very difficult for his father to find employment given his limitations (beperkingen).
13. The objection was dismissed by the Minister of Justice (Minister van Justitie) on 11 June 2010, who considered that it was for the applicant or his representative to substantiate a claim that the applicant’s father was eligible to be dispensed from the income requirement. However, when applying for a residence permit the applicant had neither indicated that his father should be so dispensed nor submitted documents to prove it. The Minister further noted that in the proceedings on the objection the applicant’s representative had declined the opportunity to make his client’s case at a hearing before an official board of inquiry and had not submitted any documents relating to the applicant’s father’s income although provided with the opportunity to do so. It was not apparent that the father had been exempted from the obligation to endeavour to obtain employment, and no details or substantiation had been submitted as regards the limitations which allegedly prevented him from finding work.
The Minister maintained the position that the refusal of a residence permit did not constitute an interference with the applicant’s right to respect for his family life. Moreover, he was not under a positive obligation to allow the applicant to reside in the Netherlands. In the latter context it was considered, firstly, that national policy on family reunion already included a general balancing between an individual’s interest in enjoying family life on the one hand and the State’s interests on the other. When national policy was not complied with, the interests of the State in principle carried more weight, even if it meant that a family would not be able to live together. Secondly, when the applicant and his father had intensified their family life in the Netherlands, they had known or might reasonably have been expected to know, that the applicant’s stay there was not lawful. Thirdly, the Minister attached relevance to the fact that the applicant had in the meantime reached the age of majority. It had not been shown that his relationship with his father contained elements of dependency involving more than the normal emotional ties between parents and adult children. Even though the applicant had argued that he did not have anyone in his country of origin, the Minister held that, in view of his age, the applicant should be able to fend for himself in Turkey, with assistance from the Netherlands. It had further not been shown that the applicant’s bonds with other relatives residing in the Netherlands ‒ such as aunts, uncles, nephews and nieces ‒ were so exceptionally close that the refusal of a residence permit would be in breach of Article 8 of the Convention. The applicant would be able to stay in contact with them through modern means of communication and during holidays. In addition, the Minister noted that the applicant had lived part of his life in Turkey, with which he was considered still to have ties. Finally, it did not appear that the applicant’s father would not be able to follow his son to Turkey. For those reasons, it was concluded that the general interest outweighed the applicant’s individual interest.
14. The applicant lodged an appeal on 21 June 2010, arguing, inter alia, that whether or not his father had sufficient independent means of subsistence was not relevant since the right to respect for family life as laid down in Article 8 of the Convention was based on the principle that a child should be reunited with his or her parents. He further submitted that he had been living in the Netherlands for ten years and that he went to school and had friends in that country.
15. The Regional Court (rechtbank) of The Hague, sitting in Groningen, dismissed the appeal on 18 January 2011. It held that the applicant had not provided any documentary substantiation of his arguments that his father had been exempted from the obligation to endeavour to obtain employment or that it would be difficult for him to obtain work in view of his limitations. As regards Article 8 of the Convention, the Regional Court found as follows:
“Furthermore, [the Deputy Minister’s] opinion that [the applicant’s] reliance on Article 8 of the Convention cannot succeed is to be accepted. Now that [the applicant] has reached the age of majority, it would be required – for the balancing exercise to favour [the applicant] – that his dependence on his father exceeds a normal level of dependence or close bonds. Such has not appeared to be the case. In addition, there is no objective obstacle preventing [the applicant] from leaving the Netherlands and exercising family life from outside of the Netherlands or for his father to follow his son abroad.”
16. In a further appeal to the Administrative Jurisdiction Division, the applicant argued, firstly, that his father ought to be granted a dispensation from the income requirement. In support, he submitted a letter dated 3 December 2009 from the municipality where he and his father were living, according to which his father had not had many opportunities to find work since he had been granted welfare benefits in 2003. From March 2003, with certain interruptions, he had been exempted from the obligation to endeavour to obtain employment. After the most recent medical investigation of 2007, the local authorities had not initiated any new programme aimed at getting the applicant’s father to re-enter the labour market. The letter concluded by saying that in view of the economic situation at the time and the opportunities on the labour market, it was not to be expected that the applicant’s father would be able to obtain employment in the future.
The applicant further submitted a report drawn up by a psychologist after the applicant’s father had been examined in March 2005 at the request of the local social affairs department. The father was described as having been suffering from depression since 2003. He was taking medication, could barely cope with the housekeeping, had few social contacts, many debts, and the only thing that kept him going was his son. The report concluded that at the time of writing the applicant’s father was unable to participate in a programme aimed at getting him off benefits and into employment.
17. The applicant argued in the second place that the Regional Court had been wrong to take account of the fact that he had in the meantime reached the age of majority. As he had still been a minor when the application for a residence permit had been lodged, the existence or not of more than the normal emotional ties with his father ought not to have played a role. He and his father had nevertheless consulted a psychologist in order to assess the level of dependency between them.
According to the report drawn up in February 2011 after that consultation, the applicant was to be considered as a third-generation immigrant, given that his grandfather, with whom he had lived for the first eight years of his live, had lived in the Netherlands for some twenty years, and that the applicant had subsequently lived with his father in the Netherlands. The applicant was said to speak very good Dutch and to be very well integrated. The fact that he did not have any relationship with his mother or her family, and that his grandfather had passed away in 2009, meant that there were no longer any people in Turkey with whom he could either experience or develop family life. The applicant’s father had longed for his son to be reunited with him from the moment of his son’s birth. The long battle to accomplish that had seriously affected the father, whose life was bound up with the outcome of that battle. The report concluded that the applicant’s return to Turkey would lead to unavoidable and, in all likelihood, irreparable personal harm to the applicant.
18. The Administrative Jurisdiction Division dismissed the further appeal on 13 September 2011. It noted that the Aliens Act 2000 provided that it was competent to deal only with grievances that related to the parts of the Regional Court’s decision with which an appellant disagreed. However, the letter from the municipality of 3 September 2009, the psychological report of 2007, or a psychological report of the scope and content of the report of February 2011 had not been submitted to the Regional Court. Given that it had neither been argued nor appeared that those documents could not have been submitted earlier, the Administrative Jurisdiction Division found that the applicant’s submissions in relation to those documents could not be considered as grievances within the meaning of the Aliens Act 2000. It dismissed the remainder of the further appeal on summary reasoning.
19. The applicant was represented by a lawyer throughout the proceedings described above.
D. Developments following the lodging of application no. 9597/12
20. On 21 May 2013 the applicant applied for a residence permit under a regularisation scheme for long-term resident children. The scheme applied to children (or young adults) who had previously unsuccessfully sought asylum in the Netherlands. His application was rejected as that was not the applicant’s case. At the same time, a two-year entry ban (inreisverbod) was imposed. Those decisions were upheld on appeal by the Regional Court of The Hague, sitting in Groningen, on 26 March 2015.
21. In a letter of 22 August 2016 the applicant informed the Court in relation to both applications that the Repatriation and Departure Department (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice (Ministerie van Veiligheid en Justitie) was urging him to cooperate in his return to Turkey. He further informed the Court that he had moved out of his father’s house in 2015 because the latter faced demands to pay back social security allowances he had received while providing accommodation to the applicant while he was residing illegally in the Netherlands, and that he was now living with his aunt. He had a Dutch girlfriend and was pursuing a study in the social-care field.
COMPLAINTS
22. The applicant complains in both applications that the refusal to allow him to reside in the Netherlands with his father contravenes his right to respect for his family life as guaranteed by Article 8 of the Convention.
23. In application no. 9597/12 he further complains, under Article 13 in conjunction with Article 8, that the refusal of the Administrative Jurisdiction Division to take account of the documentary evidence which substantiated his submissions relating to Article 8 had rendered his further appeal ineffective.
QUESTIONS TO THE PARTIES
Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention, as alleged by the applicant in application no. 9597/12?
In particular, have the domestic authorities given thorough and careful consideration to the proportionality test required by that provision and explicitly taken into account all the criteria set out in the Court’s case‑law (see Ndidi v. the United Kingdom, no. 41215/14, § 76, 14 September 2017, and Alam v. Denmark (dec.), no. 33809/15, §§ 33 and 35, 6 June 2017), including the extent of the applicant’s ties with the Netherlands and the existence or not of an exceptional situation in which the removal of the applicant would constitute a violation of Article 8 (see Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 107-108, 3 October 2014; Butt v. Norway, no. 47017/09, § 78, 4 December 2012; and Nunez v. Norway, no. 55597/09, § 70, 28 June 2011)?
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