AS TO THE ADMISSIBILITY OF
Application No. 17546/90
by Dudu DALDAL-USLU
against the Netherlands
The European Commission of Human Rights sitting in private on
7 December 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
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
Mr. H.C. KRÜGER, 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 10 December 1990
by Dudu DALDAL-USLU against the Netherlands and registered on 10
December 1990 under file No. 17546/90;
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 applicant is a Turkish national, born in 1930 and currently
residing in Amsterdam, the Netherlands. Before the Commission, she is
represented by Mrs. R. Niemer, a lawyer practising in Amsterdam.
The facts, as submitted by the applicant, can be summarised as
follows.
The applicant lived with her husband in the Netherlands from 1974
until August 1982, holding a Dutch residence permit. In August 1982
she and her husband returned to Turkey as her husband was ill. After
the death of her husband in January 1987, the applicant returned to the
Netherlands on 7 December 1987. She receives a monthly pension of
1.432,35 Dutch guilders net from a Dutch pension fund.
The applicant has four adult children. Three sons reside in the
Netherlands and one daughter lives with her husband and two children
in Turkey. The applicant lives with two of her sons in Amsterdam, upon
whom she claims to be mentally and physically dependent in view of her
alleged poor state of health.
On 27 January 1989, the applicant applied for a residence permit.
This request was rejected on 11 April 1990 by the Head of the Municipal
Police of Amsterdam, as the applicant did not meet the requirements for
a residence permit either on the basis of family reunification or on
humanitarian grounds. Moreover, there was nothing to show that the
applicant could not live in Turkey without the actual support of
others. On 23 April 1990, the applicant requested the Deputy Minister
of Justice to reconsider the decision of 11 April 1990.
On 1 November 1990, the President of the Regional Court
(Arrondisementsrechtbank) of The Hague, in summary proceedings,
rejected the applicant's request for an injunction in respect of her
expulsion from the Netherlands. The President considered that the
applicant, when she was in Turkey, did not form part of her sons'
family. The President added that, even assuming there is family life
between the applicant and her sons, the interference complained of is
justified as the interests of the Netherlands in maintaining a
restrictive immigration policy outweighs the applicant's personal
interests.
On 18 December 1990, the Deputy Minister of Justice rejected the
applicant's request to reconsider the decision of 11 April 1990.
On 13 July 1992, the Judicial Division of the Council of State
(Afdeling Rechtspraak van de Raad van State) rejected the applicant's
appeal against the decision of 18 December 1990. The Judicial Division
held that there was no interference with the applicant's family life.
In respect of the applicant's health problems, the Judicial Division
considered that the applicant needs some medical assistance, but that
a possible medical treatment could also take place in Turkey.
COMPLAINT
The applicant claims that she belongs to the family of her two
sons with whom she lives and upon whom she is dependent. She complains
that the refusal to grant her a residence permit in the Netherlands
constitutes a violation of her right to respect for family life as
guaranteed by Article 8 of the Convention, and so would her expulsion
to Turkey.
THE LAW
The applicant complains that the refusal by the Netherlands
authorities to grant her a residence permit constitutes an unjustified
interference with her right to respect for family life as guaranteed
by Article 8 (Art. 8) of the Convention, and so would her expulsion to
Turkey. Article 8 para. 1 (Art. 8-1) of the Convention, insofar as
relevant, reads as follows:
"1. Everyone has the right to respect for his [...]
family life [...]"
The Commission first recalls that, while it is clear 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 (cf. No. 9203/80, Dec. 5.5.81, D.R. 24 p.
239), it has also repeatedly stated that, in view of the protection of
the right to respect for family life afforded by Article 8 (Art. 8) of
the Convention, the expulsion of a person from a country in which his
immediate family is resident may give rise to issues under this
provision of the Convention (cf. No. 9478/81, Dec. 8.12.81, D.R. 27
p. 243).
The question of the existence or non-existence of 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 evidence of further elements of dependency,
involving more than the normal emotional ties (cf. No. 10375/83, Dec.
10.12.84, D.R. 40 p. 196).
In the present case the Commission notes that the applicant has
substantial links with Turkey, where she has lived most of her life,
where her daughter resides and where she returned in 1982 when her
husband fell ill. It was only five years later, after his death, that
she returned to the Netherlands in order to reside with her two sons
in Amsterdam. The Commission further notes that the applicant receives
a monthly pension of 1.432,35 Dutch guilders net from a Dutch pension
fund. The Commission does not find that the applicant's claim to be
mentally and physically dependent on her sons has been sufficiently
substantiated to attract the protection of Article 8 (Art. 8) of the
Convention.
The Commission, therefore, concludes that the decision by the
Netherlands authorities not to grant the applicant the right to take
up residence in the Netherlands does not amount to lack of respect for
the applicant's family life within the meaning of Article 8 (Art. 8)
of the Convention. It follows that the application must be rejected
as manifestly ill-founded within the meaning of 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 Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy