AS TO THE ADMISSIBILITY OF
Application No. 14501/89
by E.A.
and A.A.
against the Netherlands
The European Commission of Human Rights sitting in private on 6
January 1992, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
SirBasil HALL
Mr.F. MARTINEZ RUIZ
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 5 October 1988 by
E.A. and A.A. against the Netherlands and registered on 5 January 1989
under file No. 14501/89;
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 is a Moroccan national, born in 1947 in Bab
Berret. He presently resides in P., the Netherlands. The second
applicant is his elder son, born in 1974. He is at present residing
with his father in P.. Before the Commission, they are represented by
Mr. A. van Driel, a lawyer practising in Alkmaar.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The first applicant, the father, first entered the Netherlands
in 1979. On 13 June 1982, he contracted a second marriage (bigamous)
with a Moroccan woman having a permanent residence permit (vergunning
tot vestiging) in the Netherlands. He was then authorised to stay in
the country on the ground of a family reunification with his second
wife. On 18 November 1987, he was granted a permanent residence
permit.
His first wife stayed in Morocco with her children, i.e. the
second applicant, his brother and four sisters. The first applicant
visited his family in Morocco almost each year during six weeks and
provided for their maintenance, as he did for his second family in the
Netherlands. He also had regular contacts by telephone with the second
applicant.
On 23 August 1987, the second applicant entered the Netherlands
to live with his father and the latter's second wife. This decision was
partly taken in order to ensure him a medical treatment in the
Netherlands, following an accident he had in Morocco, but was
principally motivated by the increasing problems met by his mother in
raising him satisfactorily.
On 4 September 1987, the first applicant requested a residence
permit for his son, acting as his legal representative.
The Head of police of P. rejected his request on 23 December
1987, as the second applicant did not meet the requirements for
entrance in the Netherlands. On 28 January 1988, the first applicant
appealed to the Deputy Minister of Justice (Staatssecretaris van
Justitie) against that decision. The Deputy Minister, following the
advice of the Advisory Committee for Aliens Affairs (Adviescommissie
voor vreemdelingenzaken), rejected the appeal on 26 April 1988. The
decision was taken, inter alia, on the ground of the policy followed
concerning family reunification for bigamous aliens, which is to
authorise it for only one spouse and children born out of their
relationship. The decision stated that, as polygamy is contrary to the
Dutch public order, even assuming that there was an interference with
the applicants' right to respect for family life, it was justified
under Article 8 para. 2 of the Convention.
The applicants then initiated proceedings before the civil
courts, requesting that the second applicant's expulsion be prohibited
as being contrary to the provisions of Article 8 of the Convention.
The first applicant requested the Regional Court
(Arrondissementsrechtbank) of The Hague to give a declaratory judgment
(verklaring voor recht) arguing that the intended expulsion of the
second applicant by the Dutch authorities was in violation of Articles
8 and 14 of the Convention and therefore unlawful.
He simultaneously demanded in summary proceedings (kort geding)
before the President of the Regional Court of Alkmaar that the
expulsion of the second applicant be prohibited, as long as the
Regional Court of The Hague had not yet decided on his case.
The President of the Regional Court of Alkmaar rejected on 14
July 1988 the demand to prohibit the expulsion, considering that
despite the existence of the applicants' family life, interference in
this case was justified under Article 8 para. 2 of the Convention. In
balancing all interests, the President also attached importance to the
interests of the State in maintaining a restrictive immigration policy
(restrictief toelatingsbeleid), particularly having regard to the
density of the population and the issue of housing and social care
(education).
On 18 July 1988, the first applicant appealed against the
President's decision. The Court of Appeal (Gerechtshof) of Amsterdam
rejected this appeal in summary proceedings on 22 June 1989.
In the procedure on the merits, the Regional Court of The Hague
refused the declaratory judgment on 26 April 1989. The Court followed
the reasoning of the President of the Regional Court of Alkmaar in the
summary proceedings, as regards Article 8. The allegations under
Article 14 were also rejected.
In spite of the above decisions, the second applicant remained
in the Netherlands.
COMPLAINTS
1. The applicants complain that by refusing the second applicant a
residence permit, their right to respect for family life set forth in
Article 8 of the Convention has been violated. They allege that the
interests of the state cannot justify this interference with their
family life.
2. They further complain of discrimination against the children of
the first applicant's first wife, who are not allowed to enter the
Netherlands unlike the children of the first applicant's second wife
who are entitled to live in the Netherlands. They invoke Article 14
read in conjunction with Article 8 of the Convention.
THE LAW
1. The applicants have complained of an unjustified interference
with their right to respect for family life. They invoke Article 8
(Art. 8) of the Convention which reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
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 national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission first refers to its constant case-law according
to which the Convention does not, as such, guarantee a right to enter
or reside in a particular country nor a right not to be expelled from
a particular country (No. 9203/80, Dec. 5.5.81 D.R. 24, p. 239).
However, 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 (e.g. Moustaquim v. Belgium, Comm.
Report 12.10.89, para. 50).
In the present case the Commission notes that although the second
applicant did not live with his father from 1979 to 1987, he had
frequent contacts with him as the first applicant used to visit his
first wife and children in Morocco almost each year during six weeks
and provided for their maintenance. He also had regular contacts by
telephone with the second applicant. The Commission finds that in
these circumstances the ties between the applicants are covered by the
concept of family life of Article 8 (Art. 8). It follows that the
refusal to grant the second applicant a residence permit to live with
his father and the latter's second wife constitutes an interference
with the applicants' right to respect for family life.
The question arises whether this interference was justified under
para. 2 of Article 8 (Art. 8-2).
The Dutch authorities' refusal to grant the second applicant a
residence permit is based on the Aliens Act (Vreemdelingenwet). The
Commission also notes in this respect that polygamous marriages are in
conflict with Dutch law. It therefore finds that the interference
complained of was "in accordance with the law".
The Commission further observes that the policy followed by the
Dutch authorities in such cases is clearly related to the economic
well-being of the country, in particular to the authorities' concern,
because of the population density, to regulate the labour market (Eur.
Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, para.
26).
In assessing whether this interference was necessary in a
democratic society, the Commission recalls that the Contracting States
have a certain margin of appreciation in the field of immigration
policy (ibid. para. 28). However, the Commission must examine the
interference complained of, and it must do this not solely from the
point of view of immigration and residence, but also with regard to the
applicants' mutual interest in continuing their relations (ibid, para.
29). In balancing the different interests involved, the Commission
attaches importance on the one hand to the fact that the second
applicant is also a member of the family of his mother who continuously
lived in Morocco and on the other hand to the reasons for the decision
of the Dutch authorities. On balance it finds, having regard to the
second paragraph of Article 8 (Art. 8), that there are insufficient
elements concerning respect for family life which could outweigh the
considerations relating to the proper enforcement of immigration
controls. In this respect the Commission would emphasise the close
connection between the policy of immigration and consideration of
public order (No. 12122/86, Dec. 16.10.86, D.R. 50, p. 268, p. 272).
The Commission is therefore of the opinion that the interference with
the applicants' right to respect for family life is in accordance with
the law and justified as being necessary in a democratic society for
the economic well-being of the country under the second paragraph of
Article 8 (Art. 8), as a legitimate measure of immigration control.
Accordingly, this part of the application must be rejected as
being manifestly ill-founded, within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
2. The applicants also complain that the second applicant has been
discriminated against on the ground of birth as a result of the Dutch
policy of distinguishing between children born out of successive
marriages. They invoke Article 14 (Art. 14) of the Convention read in
conjunction with Article 8 (Art. 8) of the Convention. Article 14
(Art. 14) of the Convention provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
The Commission accepts that, as a general principle, it is a
legitimate interest and attribute of State sovereignty to control the
entry of immigrants and, if necessary, to limit the number of entrants,
priority being given to the close family unit. When considering
immigration on the basis of family ties, a Contracting State cannot be
required under the Convention to give full recognition to polygamous
marriages which are in conflict with their own legal order.
The Commission notes that the Dutch authorities have adopted a
policy, according to which an alien, who resides in the Netherlands,
is only allowed to bring with him one of his spouses, according to his
own choice, and the children born out of that relationship.
The Commission admits that this rule does create a difference of
treatment on the ground of birth. It recalls however that, for the
purpose of Article 14 (Art. 14), a difference of treatment is
discriminatory if it "has no objective and reasonable justification",
that is, if it does not pursue a "legitimate aim" or if there is not
a "reasonable relationship of proportionality between the means
employed and the aim sought to be realised" (See, inter alia, Eur.
Court H.R., Darby judgment of 23 October 1990, Series A no. 187, p. 12,
para. 31).
In respect of the present case, the Commission has already noted
that the policy in question pursued a legitimate aim. It further notes
that the difference of treatment follows from the second applicant's
legal status in that his mother, unlike his father's second wife, is
not entitled to reside in the Netherlands and in fact lives in Morocco
with his brother and four sisters. In these circumstances, the
Commission finds that the difference of treatment has an objective and
reasonable justification.
The Commission therefore concludes that the present application
does not disclose any appearance of discrimination on the ground of
birth contrary to Article 14 (Art. 14) of the Convention in conjunction
with Article 8 (Art. 8).
It follows that the application in this respect is also
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