AS TO THE ADMISSIBILITY OF
Application No. 35137/97
by Yilmaz DILEK
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, 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 10 October 1996
by Yilmaz DILEK against the Netherlands and registered on
28 February 1997 under file No. 35137/97;
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 1961, and resides
in Rotterdam. He is represented by Ms G.E.M. Later, a lawyer practising
in The Hague.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a. The particular circumstances of the present case
The applicant entered the Netherlands on 3 November 1987 and, on
25 January 1988, was employed on a permanent basis. On 5 July 1988 he
married a Dutch national. On 7 September 1988 the applicant was granted
a Dutch residence permit valid for one year in order to live with his
spouse and to work in the Netherlands. On 23 May 1989, a son was born
to the applicant and his wife. On 19 September 1989, on the basis of
his marriage, the applicant was granted an indefinite right to remain
pursuant to Article 10 para. 2 of the Aliens Act (Vreemdelingenwet).
On or around 19 June 1990, the applicant and his wife separated.
On 26 June 1990, the applicant's wife started divorce proceedings
before the Regional Court (Arrondissementsrechtbank) of Rotterdam. As
his residence right was dependent on his marriage, the applicant
applied for an independent residence permit on 27 July 1990.
His request for an independent permit was rejected on
8 August 1990 by the State Secretary of Justice (Staatssecretaris van
Justitie, hereinafter referred to as "the State Secretary"). Insofar
as the applicant relied on Article 8 of the Convention, the State
Secretary did not find it established that there were any contacts
between the applicant and his son and, further, that it had not
appeared that the applicant had made any contributions to the costs of
his son's upbringing. In these circumstances the State Secretary did
not find that the tie between the applicant and his son could be
considered as "family life" under Article 8 of the Convention. On 7
March 1991, the applicant filed a request for review (herziening) of
this decision with the State Secretary.
On 27 February 1991, the Regional Court of Rotterdam pronounced
the applicant's divorce. By decision of 21 May 1991, it appointed the
applicant's former wife as guardian (voogdes) and the applicant as
auxiliary guardian (toeziend voogd) over his son. The Regional Court
further ordered the applicant to pay 300 Dutch guilders monthly to his
former wife as a contribution to the costs of their son's upbringing
and education. As regards parental access, the applicant and his wife
had concluded an agreement according to which the applicant had access
to his son every Saturday and Sunday between 12.00 and 18.00 hours.
On 18 December 1991, the applicant's former wife filed a criminal
complaint against the applicant for assault and refused the applicant
access to his son as from that moment. On 2 September 1992, the
applicant requested the Regional Court of Rotterdam to determine an
access arrangement (omgangsregeling) to the effect that he would be
given access to his son one day every two weeks.
On 22 September 1992, the applicant was heard by the Advisory
Commission for Aliens Affairs (Adviescommissie voor Vreemdelingenzaken)
in connection with his request for review of the decision of
8 August 1990. Following this hearing, the Advisory Commission advised
the State Secretary for Justice to reject the applicant's request for
revision.
Having noted the advice of the Advisory Commission, the State
Secretary rejected the applicant's request for review on
13 January 1993. On 15 March 1993, the applicant filed an appeal with
the Council of State (Raad van State).
In March 1993, the applicant lost his job and was granted
unemployment benefits.
On 18 March 1993, the applicant started summary proceedings (kort
geding) before the President of the Regional Court of The Hague seeking
an injunction on his expulsion pending the outcome of his appeal to the
Council of State.
By decision of 22 January 1994, the Regional Court of Rotterdam
determined an access arrangement to the effect that the applicant had
access to his son one afternoon per fourteen days in the presence of
his son's grandmother.
By judgment of 4 March 1994, the President of the Regional Court
of The Hague sitting at Haarlem rejected the applicant's request for
an injunction on his expulsion. Noting that since the separation from
his wife the applicant had not had any contacts with his son, the
President considered that the family life between the applicant and his
son was not of such a nature that, in balancing the interests involved,
the applicant's expulsion would be contrary to Article 8 of the
Convention.
As to the argument that regular contacts between the applicant
and his son had been established in the meantime, the President held
that this could not lead to a different decision as these contacts did
not exist at the time the decision challenged by the applicant before
the Council of State was taken. As the Council of State can only
examine the appeal in the light of the facts and circumstances at the
time the challenged decision was taken, it would be unable to take
these re-established contacts into consideration. The President,
therefore, concluded that the applicant's appeal had not a reasonable
chance of success and, consequently, rejected the applicant's request
for an injunction. The applicant filed an appeal with the Court of
Appeal (Gerechtshof) of The Hague.
On 28 January 1995, the applicant was expelled from the
Netherlands. Shortly after having been expelled, he returned to the
Netherlands and, on 12 October 1995, filed a new application for an
independent Dutch residence permit.
On 28 November 1995, the applicant submitted further arguments
for this new application, including an argument relating to the
Association Agreement between the European Economic Community and
Turkey which had not been raised before. Pursuant to this Agreement
Turkish nationals who have had a residence permit for stay with a Dutch
spouse and who are gainfully employed qualify for an independent
residence permit valid for one year after having lawfully resided in
the Netherlands for at least one year and where the person concerned
is certain of employment for at least another year.
In this context the applicant explained that, as from
25 January 1988, he had been employed for an indefinite duration by the
M. company, that on 24 November 1990 he was dismissed from this company
following its bankruptcy, that already as from 18 November 1990 he had
been employed by the M. company's successor C. for whom he worked until
March 1993 when C. went bankrupt. After that date he obtained
unemployment benefits to which he was entitled until 25 March 1995. The
applicant further submitted that at the time of his expulsion he met
the conditions for a residence permit under the rules on the
legalisation of the status of illegal immigrants having resided and
worked in the Netherlands for at least six years. In support of this
argument the applicant submitted certain documents, including written
statements from his employers M. and C., and salary and social security
payment slips covering the period of January 1989 to February 1994.
As from 15 November 1995, the applicant is registered at the
Chamber of Commerce (Kamer van Koophandel) as owner of a one-man-
business.
On 11 December 1995, the applicant submitted his grounds of
appeal against the judgment of 4 March 1994 of the Regional Court of
The Hague.
On 10 April 1996, following a hearing held on 15 January 1996,
the Administrative Law Division (Afdeling Bestuursrechtspraak) of the
Council of State rejected the applicant's appeal against the State
Secretary's decision of 13 January 1993. It recalled that, under
Article 11 para. 5 of the Aliens Act, a residence permit may be refused
on public interest grounds and that the Netherlands have a restricted
immigration policy given the situation of its population and labour
market. It noted that, with the exception of obligations derived from
international agreements, an application for a residence permit in the
Netherlands is granted only if the individual's presence serves an
essential national interest or if there are compelling reasons of a
humanitarian nature.
As to the applicant's arguments under Article 8 of the
Convention, the Administrative Law Division accepted that the refusal
to grant the applicant a residence permit constituted an interference
with his right to respect for his family life within the meaning of
this provision.
The Administrative Law Division noted, however, that the
applicant and his son had only lived together for about one year and
did not find it established that since December 1991 there had in fact
been any contacts between the applicant and his son or that he had made
any financial contribution to the costs of his son's upbringing and
education. It further noted that, on 2 September 1992, the applicant
had filed a request with the Regional Court of Rotterdam to determine
an access arrangement of one day per fourteen days which had not yet
been decided upon when the decision of 13 January 1993 had been taken.
In any event, the Administrative Law Division found that this access
arrangement would not in itself be a decisive element in balancing the
interests involved.
The Administrative Law Division held that it was not convinced
that the ties between the applicant and his son were so close that the
interest of these ties should be given decisive weight. It further
considered, as regards the applicant's professional activities, that
on the Dutch labour market other people, having priority over the
applicant, were available for this kind of work.
The Administrative Law Division concluded that the State
Secretary, after having balanced the interference with the applicant's
right to respect for his family life against the economic interests of
the State, could find that the interference with the applicant's rights
under Article 8 of the Convention was not disproportionate and that the
refusal to grant him a residence permit was thus justified under
Article 8 para. 2 of the Convention.
On 17 April 1996, the applicant's lawyer informed the
Administrative Law Division that she had not been given access to the
applicant's case-file despite her request of 30 November 1995, after
having taken over the applicant's case from another lawyer, to be
provided with certain documents. The applicant's lawyer, referring to
a number of documents and submitting a number of recently obtained
documents, all relating to the applicant's history of employment in the
Netherlands, requested the Administrative Law Division to grant a
revision (herziening) of its decision of 17 April 1996 on the basis of
incorrect conclusions as to the facts of the applicant's employment
history.
The revision request was rejected by the Administrative Law
Division on 1 November 1996. It noted that certain documents relating
to the applicant's employment history had been submitted on
30 November 1995 after the expiry of the time-limit for making
submissions. When the applicant's lawyer nevertheless sought to submit
these documents in the course of the hearing held on 15 January 1996,
the Administrative Law Division rejected this request.
The Administrative Law Division considered that no circumstances
had appeared on grounds of which the applicant would have been unable
to submit these documents at an earlier stage of the proceedings at
issue and, consequently, held that this point did not constitute a
ground for revising its decision. It further held that no other facts
or circumstances had been submitted which could constitute a ground for
a revision. It added that the extraordinary remedy of revision is not
intended to provide an unsuccessful party in proceedings with an
opportunity to reopen the debate.
On 13 November 1996, the State Secretary rejected the applicant's
request of 12 October 1995 for a residence permit. The State Secretary,
noting the applicant's employment situation at the relevant time,
considered that he did not meet the requirements for a residence permit
pursuant to the Association Agreement and further held that he did not
meet the requirements for a residence permit pursuant to the rules on
the legalisation of the status of illegal immigrants having resided and
worked in the Netherlands for more than six years.
In this decision it was further noted that, according to a
written statement dated 21 October 1996 by the applicant's former wife,
the applicant had availed himself in 1994 only twice of the access
arrangement determined by the Regional Court of Rotterdam of
11 January 1994. It was further noted that it had not appeared that the
applicant had made any contributions to the costs of his son's
upbringing or that there had been any contacts between the applicant
and his son.
The State Secretary concluded that the State's interests in
securing the economic well-being of the country outweighed the
applicant's interests as regards respect for his rights under Article 8
para. 1 of the Convention and that, therefore, the refusal to grant him
a residence permit was justified under Article 8 para. 2 of the
Convention. The applicant was further ordered to leave the Netherlands
within four weeks. On 9 December 1996, the applicant filed an objection
(bezwaarschrift) against this decision with the State Secretary.
On 26 February 1997, the applicant filed a request with the
Regional Court of The Hague for an interim measure (voorlopige
voorziening) allowing him to await the outcome of the appeal
proceedings in the Netherlands. These proceedings are currently still
pending. A hearing has been scheduled for 6 August 1998.
On 15 May 1997, the Court of Appeal of The Hague handed down its
judgment on the applicant's appeal against the judgment of 4 March 1994
of the Regional Court of The Hague. It noted that the facts set out in
the judgment of 4 March 1994 had not been disputed, that on
10 April 1996 the Administrative Law Division of the Council of State
had rejected the applicant's appeal in the proceedings on the merits
(bodemprocedure) and that the Administrative Law Division had further
rejected the applicant's request for revision on 1 November 1996. As
the applicant's appeal of 10 March 1994 was limited to the refusal to
order an injunction on his expulsion pending the proceedings before the
Council of State, the Court of Appeal considered that the applicant's
appeal no longer had an object.
However, as the President of the Regional Court had also awarded
costs against the applicant, the Court of Appeal nevertheless examined
the substance of the applicant's appeal.
After having examined the applicant's various submissions as
regards his employment history, the Court of Appeal rejected the
applicant's argument that he met the conditions for an independent
residence permit pursuant to the Association Agreement. It further
rejected the argument that the applicant met the conditions for a
residence permit under the rules on legalisation of the status of
illegal immigrants having resided and worked in the Netherlands for
more than six years.
Insofar as the applicant relied on Article 8 of the Convention,
the Court of Appeal considered that the applicant had only lived with
his son for about one year, noted the history of the arrangement of the
applicant's access to his son and found that it had not been submitted
nor appeared that the applicant, after the rupture of the initial
access arrangement in December 1991, had continued to pay any
contribution towards the costs of his son's upbringing and education.
It finally found established that on the Dutch labour market other
people, having priority over the applicant, were available for the kind
of work the applicant was doing at the relevant time.
The Court of Appeal did not find it established that, at the time
of the decision of 13 January 1993, the tie between the applicant and
his son was so strong that it should be given decisive weight when
balancing the right to respect for the applicant's private and family
life with his son against the State's interest as regards the economic
well-being of the country. It concluded that, on balance, the refusal
to grant the applicant a residence permit was justified under Article 8
para. 2 of the Convention.
After having rejected all arguments advanced by the applicant,
the Court of Appeal upheld the Regional Court's judgment of
4 March 1994 and made a cost order against the applicant.
By decision of 11 November 1997, the State Secretary rejected the
applicant's objection of 9 December 1996. As regards the applicant's
arguments under Article 8 of the Convention, the State Secretary
referred to the findings in the judgment of 15 May 1997 of the Court
of Appeal of The Hague.
On 19 November 1997, the applicant requested the State Secretary
to review the decision of 11 November 1997. In support of this request
the applicant submitted a copy of the Commission's Decision on
admissibility in the case of Çiliz v. the Netherlands (Application
No. 29192/95, Dec. 27.6.96), copies of written statements by his former
wife stating that she had received from the applicant 200 Dutch
guilders on 28 July 1990 and 250 guilders on 5 August 1990 and monthly
amounts of 300 Dutch guilders during the period from February to
December 1991, and copies of the applicant's unemployment benefits
payment slips from which it appears that between 12 July 1993 and
11 September 1994 a weekly amount of 93,75 Dutch guilders was withheld
and paid to the Children Welfare Council (Raad voor de
Kinderbescherming) in respect of his son.
On 26 June 1998, the applicant informed the Commission that, by
letter of 8 January 1998 to the State Secretary, he had submitted a
statement of his former wife as to his contacts with his son. Without
explicitly referring to the contents of this statement, the applicant
submitted that since the beginning of 1997 he sees his son weekly and
that he has contacts by telephone. He further submitted that he makes
financial contributions to the costs of his son's education and
upbringing.
On 19 February 1998, the State Secretary informed the applicant
that there were no reasons for a review of the decision of
11 November 1997. The applicant's objection against that decision is
currently still pending.
b. Relevant domestic law and practice
In general, an application for a residence permit in the
Netherlands is granted only if the individual's presence serves an
essential national interest or if there are compelling reasons of a
humanitarian nature (klemmende redenen van humanitaire aard) (see also
Eur. Court HR, Nsona v. the Netherlands judgment of 28 November 1996,
Reports of Judgments and Decisions 1996-V, pp. 1993-1994, paras. 64-
65). A residence permit may be refused on public interest grounds
(Article 11 para. 5 of the Aliens Act).
At the relevant time, foreigners married to either a Dutch
national, a recognised refugee or a holder of a permanent residence
permit were granted a residence permit as there were considered to
exist compelling reasons of a humanitarian nature. After one year of
legal residence in the Netherlands they acquired ex iure an indefinite
right to remain pursuant to Article 10 para. 2 of the Aliens Act.
This right expired ex iure when the spouses no longer co-habited
(Section 47 para. 1 (a) of the Order on Aliens [Vreemdelingenbesluit]).
If, at that time, the foreigner had been married for more than three
years and had legally resided with his spouse in the Netherlands for
at least one year during the time directly preceding the dissolution
or breakdown of the marriage, he would be eligible for an independent
residence permit (see also Eur. Court HR, Berrehab v. the Netherlands
judgment of 21 June 1988, Series A no. 138, pp. 10-11, paras. 14-15).
An independent residence permit in order to work in the
Netherlands following the dissolution or breakdown of a marriage could
be granted if at the time of the request for such a permit the
foreigner was certain of employment for at least another year. However,
an independent residence permit was not refused if, inter alia, there
were compelling reasons of a humanitarian nature to accept the
individual's presence in the Netherlands.
An "essential national interest" as mentioned above is considered
to exist where a foreigner is employed in a sector where there is not
a sufficient number of capable people available on the labour market
to fill all vacancies. To establish whether this is the case, regard
is only had to the number of registered unemployed people enjoying
priority (prioriteit genietend aanbod). For example, on the Dutch
labour market citizens of the European Union have priority over most
other foreigners.
COMPLAINTS
1. The applicant complains that the refusal to grant him a residence
permit is contrary to his rights under Article 8 of the Convention. He
submits that since his return in 1995 he re-established weekly contacts
with his son and makes regular contributions to his former wife for the
costs of his son's upbringing and education.
2. The applicant complains under Articles 6 and 13 of the Convention
that the Council of State did not find it established that he had in
fact been working in the Netherlands between 21 June 1989 and
1 June 1990. He complains in particular that he had not been granted
access to his case-file at the Council of State. It appeared that his
former lawyer had not requested access and his current lawyer was not
granted access. He further submits that he transmitted a number of
documents related to his work to the Council of State but the State
Secretary objected to these submissions. These documents indicated that
he had in fact worked between 21 June 1989 and 1 June 1990.
THE LAW
1. The applicant complains that the refusal to grant him a residence
permit is contrary to his rights under Article 8 (Art. 8) of the
Convention.
I. Article 8 (Art. 8) of the Convention, insofar as relevant, reads:
"1. Everyone has the right to respect for his private and
family life ...
2. There shall be no interference by a public authority with
the exercise of this right except such 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 Commission accepts that there is family life within the
meaning of Article 8 para. 1 (Art. 8-1) between the applicant and his
son (cf. Eur. Court HR, Berrehab v. the Netherlands judgment of 21 June
1988, Series A no. 138, p. 14, para. 21; and No. 12411/86, Dec. 4.3.87,
D.R. 51, p. 245) and that thus the refusal of the Dutch authorities to
grant the applicant a residence permit constitutes an interference with
the exercise of his right to respect for family life.
It must therefore be examined whether or not this interference
can be considered as justified under paragraph 2 of Article 8
(Art. 8-2).
The Commission observes that the refusal to grant the applicant
a residence permit was taken in accordance with Section 11 para. 5 of
the Aliens Act. It was, therefore, taken in accordance with Dutch law.
The Commission accepts, moreover, that the decision was taken in
line with the policy followed by the Dutch authorities to regulate the
labour market in view of the population density. The legitimate aim
pursued was, thus, the preservation of the country's economic well-
being (cf. Berrehab judgment, loc. cit., p. 15, para. 26).
The question which remains to be answered is whether or not the
decision was "necessary in a democratic society".
The Commission considers that Article 8 (Art. 8) does not impose
a general obligation on States to allow aliens to remain on their
territory for the purpose of enjoying access to children of a broken
marriage. Whether a refusal to allow an alien to re-enter or remain in
a particular country for this purpose is necessary will depend on the
facts of the individual case. A fair balance must be struck between the
competing interests of the individual and of the community as a whole,
and in the assessment of this balance the Contracting State enjoys a
certain margin of appreciation (cf. Keegan v. Ireland judgment of
26 May 1994, Series A no. 290, p. 19, para. 49).
Although the applicant alleges that, since his return to the
Netherlands in 1995, he has re-established contacts with his son in
that he sees him weekly, the Commission finds that this assertion has
remained insufficiently substantiated. It notes that in the domestic
proceedings it was not found that, since 1991 and apart from twice in
1994, there had been any contacts between the applicant and his son.
In this respect, the Commission further notes that it was not before
8 January 1998 that the applicant informed the State Secretary that he
sees his son, as from the beginning of 1997, on a weekly basis and that
he makes financial contributions to the costs of his son's education
and upbringing, whereas this assertion was only brought to the
Commission's attention on 26 June 1998 without any further
substantiation. Furthermore, no explanation was provided as to why this
assertion was not raised earlier in the domestic proceedings at issue.
In these circumstances the Commission considers that, unlike the
respective situations in the cases of Berrehab v. the Netherlands (loc.
cit.) and Çiliz v. the Netherlands (No. 29192/95, Dec. 27.6.96,
unpublished), it has not been established that at the relevant time the
applicant has had in fact more or less regular contacts with his son
since his return in 1995. Furthermore, apart from twice in 1994, it has
not been established that, between his return to the Netherlands in
1995 and the beginning of 1997, the applicant has actively sought to
establish such regular contacts by, for instance, seeking to avail
himself of the access arrangement as determined by the Regional Court
of Rotterdam. Moreover, it has not been submitted nor has it appeared
that, during this period, the applicant's former wife objected to
contacts between the applicant and his son on the basis of this access
arrangement.
On the other hand, the Commission observes that the applicant has
made certain financial contributions to the costs of his son's
upbringing and education over the periods July - August 1990, February
- December 1991 and July 1993 - September 1994. Although the applicant
has submitted that, since his return to the Netherlands in 1995, he
makes financial contributions on a regular basis towards the costs of
his son's upbringing, the Commission finds that this assertion has also
remained insufficiently substantiated. There is no indication in the
applicant's case-file that he has in fact made such contributions since
September 1994. Also his assertion on this point in his letter of
8 January 1998 to the State Secretary has remained unsubstantiated and
no explanation has been provided as to why this assertion has not been
raised earlier in the domestic proceedings.
In these circumstances, the Commission is of the opinion that the
applicant's right to respect for his family life does not outweigh
valid considerations relating to Dutch immigration policy and that a
proper balance has been struck between the interests involved when the
domestic authorities determined the applicant's case on the basis of
the facts before them. It therefore finds that the Dutch authorities'
refusal to grant the applicant an independent residence permit cannot
be regarded as disproportionate to the legitimate aim pursued and,
accordingly, may reasonably be regarded as being necessary in a
democratic society.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains under Articles 6 and 13 (Art. 6, 13) of
the Convention that the Council of State did not find it established
that he had in fact been working in the Netherlands between 21 June
1989 and 1 June 1990. He complains in particular that he had not been
granted access to his case-file at the Council of State.
Article 6 (Art. 6) of the Convention, insofar as relevant, reads:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair ... hearing ... by a ...tribunal..."
Article 13 (Art. 13) of the Convention provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
Insofar as the applicant complains under Article 6 para. 1
(Art. 6-1) of the Convention, the Commission recalls its constant case-
law, that this provision is not applicable to proceedings concerning
residence permits for aliens (cf. No. 9285/81, Dec. 6.7.82, D.R. 29
p. 205; and No. 33124/96, Dec. 25.2.97, unpublished). Consequently, the
Commission cannot examine the applicant's complaints of the proceedings
at issue under this provision.
Insofar as the applicant relies on Article 13 (Art. 13) of the
Convention, the Commission notes that the applicant's case, including
his arguments that his expulsion would amount to a violation of his
rights under Article 8 (Art. 8) of the Convention, has been examined
by several national authorities, i.e. the State Secretary, the
Administrative Law Division of the Council of State, the Regional Court
and the Court of Appeal. The Commission is, therefore, of the opinion
that the applicant had effective remedies within the meaning of Article
13 (Art. 13) of the Convention, of which he did in fact avail himself.
It follows that this part of the application must also 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.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy