THIRD SECTION
DECISION
Application no. 12738/10
Meriam Margriet JEUNESSE
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 4 December 2012 as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Johannes Silvis, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 1 March 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Meriam Margriet Jeunesse, is a Surinamese national, who was born in 1967 and is currently living in The Hague. She is represented before the Court by Ms G. Later, a lawyer practising in The Hague.
The Netherlands Government (“the Government”) are represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry for Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In March 1987 the applicant met and started a relation with Mr W., who – like the applicant – was born and had always lived in Suriname. Both of them had lost their Netherlands citizenship and acquired Surinamese citizenship in 1975 when Suriname gained its independence (Article 3 of the Agreement between the Kingdom of the Netherlands and the Republic of Suriname concerning the assignment of nationality (Toescheidingsovereenkomst inzake nationaliteiten tussen het Koninkrijk der Nederlanden en de Republiek Suriname), see paragraph 55 below). The applicant’s mother, with whom the applicant was living, died in August 1989. In September 1989, the applicant and Mr W. started to cohabit in the house of the latter’s paternal grandfather in Suriname.
4. On 19 October 1991, Mr W. travelled from Suriname to the Netherlands, holding a Netherlands visa for the purpose of stay with his father in the Netherlands. In 1993, Mr W. was granted Netherlands citizenship which entailed the loss of his Surinamese nationality.
5. Mr W. has three siblings and one half-sibling who are living in the Netherlands. Three other half-siblings are living in Suriname. The applicant has one brother, Glenn, who was expelled from the Netherlands to Suriname in 2009. He is suffering from mental health problems and his whereabouts are unknown to the applicant. The applicant further has three half-siblings, two living in the Netherlands and one in Suriname.
1. The applicant’s requests for a Netherlands residence permit
6. Between 1991 and 1995, the applicant filed five unsuccessful requests for a Netherlands visa for the purpose of visiting a relative. These requests were rejected because her sponsor (referent) was insufficiently solvent, failed to sign the required affidavit of support (garantverklaring) or failed to supply information needed for assessing the visa request. The applicant did not challenge any of these rejections in administrative appeal proceedings.
7. On 19 November 1996 the applicant filed a sixth visa request for the purpose of visiting a relative. After this request had been granted on 4 March 1997, the applicant entered the Netherlands on 12 March 1997 and did not return to Suriname when her visa expired. To date, she has been staying in the Netherlands.
(a) The request of 20 October 1997
8. On 20 October 1997, she applied for a residence permit; according to the applicant herself, for the purpose of taking up residence with her Netherlands-national partner Mr W., but according to the Government, for “paid employment”. The applicant married Mr W. on 25 June 1999. The final decision on this request, confirming an initial refusal, was given by the Regional Court (rechtbank) of The Hague sitting in Utrecht on 12 July 2001. In the meantime, in September 2000, a child had been born of the applicant’s marriage. Under the Netherlands nationality rules, this child is a Netherlands national. The baby was born prematurely and, suffering from heart and intestinal problems, required lengthy treatment in hospital.
(b) The request of 20 April 2001
9. On 20 April 2001, the applicant applied for a residence permit on the basis of the so-called three-year policy[1] (driejarenbeleid) or for compelling reasons of a humanitarian nature. The final decision on this request was the confirmation of a refusal given by the Regional Court of The Hague sitting in Amsterdam on 17 May 2004.
10. In December 2005, a second child was born of the applicant’s marriage. Also this child holds Netherlands citizenship. During the pregnancy of her second child, the applicant was seen by a gynaecologist every fortnight.
(c) The request of 23 January 2007
11. On 23 January 2007, the applicant filed a request for a residence permit for the purpose of stay with her children in the Netherlands. This request was rejected because the applicant did not hold the required provisional residence visa (machtiging tot voorlopig verblijf). Such a visa has to be applied for at a Netherlands mission in the petitioner’s country of origin and it is a prerequisite for the grant of a residence permit – which confers more permanent residence rights – for purposes not related to asylum. The applicant was not regarded as exempted from the obligation to hold a provisional residence visa. The applicant unsuccessfully challenged this decision in administrative appeal proceedings in which the final decision was taken by the Regional Court of The Hague sitting in Haarlem on 19 April 2007.
12. On 7 May 2007, the applicant requested the Deputy Minister (staatssecretaris van Justitie) to reconsider (heroverwegen) the negative decision on her last request. On 28 September 2007, the applicant filed a complaint with the Deputy Minister of the latter’s failure to reply to her request for reconsideration. By letter of 12 November 2007, the Deputy Minister informed the applicant that her complaint was well-founded but that there was no reason for a reconsideration of the decision concerned.
(d) The request of 28 September 2007
13. On 28 September 2007, the applicant filed a request for a residence permit “at the discretion of the Deputy Minister” (conform beschikking staatssecretaris) based on grounds of special and individual circumstances (vanwege bijzondere en individuele omstandigheden).
14. On 7 July 2008, the Deputy Minister of Justice rejected this request The applicant filed an objection against this decision. On 11 March 2009, after a hearing held on 15 January 2009, the Deputy Minister rejected the applicant’s objection.
15. The applicant’s appeal against the decision of 11 March 2009 as well as her request for a provisional measure (voorlopige voorziening) in the form of an injunction on her expulsion pending the determination of her appeal was rejected on 8 December 2009 by the provisional-measures judge of the Regional Court of The Hague sitting in Haarlem. The judge noted that it was not in dispute that the applicant did not hold a valid provisional residence visa and that she was not eligible for an exemption from the requirement to hold such a visa under article 17 § 1 of the Aliens Act 2000 (Vreemdelingenwet 2000) or article 3.71 § 2 of the Aliens Decree 2000 (Vreemdelingenbesluit 2000). It was only in dispute whether reason dictated that the Deputy Minister should exempt the applicant from this requirement for reasons of exceptional hardship (onbillijkheid van overwegende aard) within the meaning of article 3.71 § 4 of the Aliens Decree 2000. The provisional-measures judge agreed with the Deputy Minister that in the applicant’s case there were no special and individual circumstances on which basis the insistence on compliance with the provisional residence visa requirement entailed exceptional hardship. In this context, the provisional-measures judge noted that the applicant had been born and raised in Suriname, and held that it could be expected of her to provide for herself in Suriname pending a determination of a request for a provisional residence visa. The applicant had chosen to come to the Netherlands without this visa and to stay in the Netherlands without a residence title. It was her own choice to conduct residency proceedings whilst she ought to have known that holding a valid provisional residence visa was an important condition for the granting of a residence title. The consequences of this choice were therefore the applicant’s to bear.
16. As regards Article 8 of the Convention, the provisional-measures judge held that there was no interference with the right to respect for the applicant’s family life with her husband and children as the impugned decision did not deprive her of a residence permit which enabled her to exercise her family life in the Netherlands. There was further no positive obligation for the Netherlands authorities to exempt the applicant from the requirement to hold a provisional residence visa. No objective obstacles had appeared to this family life being exercised outside of the Netherlands and, given their young age, it could reasonably be expected of the applicant’s children to follow her to Suriname for the duration of the provisional residence visa procedure. Also the fact that the applicant’s husband was held in detention on remand gave no cause for a finding that there was an objective obstacle.
17. On 2 August 2009, upon his return to the Netherlands from a trip to Suriname for the burial of his foster mother, the applicant’s husband had been found to have swallowed pellets of cocaine, and placed in pre-trial detention. On 8 October 2009, a single-judge chamber (politierechter) of the Haarlem Regional Court had convicted him of offences under the Opium Act (Opiumwet) and sentenced him to seven months’ imprisonment. On the basis of this conviction, the Netherland Royal Constabulary (Koninklijke Marechaussee) had included his name for a period of three years on a blacklist provided – for the purposes of preventing recidivism – to airline companies operating direct flights between the Netherlands and Aruba, the former Netherlands Antilles, Suriname and Venezuela. On 31 December 2009, after having served his sentence, the applicant’s husband was released from prison. His name was removed from the airline blacklist on 2 August 2012.
18. The applicant’s appeal of 7 January 2010 to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) against the judgment of 8 December 2009 of the provisional-measures judge of the Regional Court of The Hague was dismissed on 6 July 2010. The Administrative Jurisdiction Division found that the appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden) and that, having regard to article 91 § 2 of the Aliens Act 2000, no further reasoning was called for as the arguments submitted did not raise questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.
(e) The request of 16 April 2010
19. In the meantime, on 16 April 2010, the applicant filed a fresh request for a residence permit with the Minister of Justice (minister van Justitie; the successor to the Deputy Minister) for the purpose of stay with child, arguing that she should be exempted from the obligation to hold a provisional residence visa on grounds of special and individual circumstances.
20. This request was rejected on 11 May 2010 by the Minister, who held that there was no reason to exempt the applicant from the obligation to hold a provisional residence visa and that the refusal of a residence permit was not contrary to Article 8 of the Convention. While accepting that there was family life within the meaning of Article 8 of the Convention between the applicant, her husband and their children, the Minister found that there was no interference with the right to respect for this family life as the refusal to grant the applicant’s request did not deprive her of a residence permit which enabled her to exercise her family life in the Netherlands.
21. As to the question whether the applicant’s rights under Article 8 entailed a positive obligation on the Netherlands to grant her a residence permit, the Minister found that the interests of the Netherlands State in pursuing a restrictive immigration policy outweighed the applicant’s personal interest in exercising her family life in the Netherlands. In balancing these competing interests, the Minister took into account that already in Suriname and before her arrival in the Netherlands the applicant had been a relationship with her current spouse; that she had entered the Netherlands without having been granted entry clearance as required under the relevant immigration rules; and that she had created her family in the Netherlands without holding a residence title. It having become clear in the course of the proceedings that the applicant was pregnant, the Minister further held that it had not been established nor appeared that the applicant would be unable – should hospitalisation be necessary – to give birth in a hospital in Suriname, or that there would be any insurmountable objective obstacles to exercise the family life at issue in Suriname. On this point, the Minister noted that Dutch was spoken in Suriname and he held that therefore the transition would not be too difficult for the applicant’s children who could thus pursue their education in Suriname normally.
22. The Minister added that the mere fact that the applicant’s spouse and children were Netherlands nationals did not entail an automatic obligation for the Netherlands authorities to grant the applicant a residence permit, or would entail that the exercise of family life would solely be possible in the Netherlands. The Netherlands authorities could not be held responsible for consequences of the applicant’s personal choice to come to, settle and create a family in the Netherlands without any certainty about her entitlement to permanent residence. In the balancing exercise, the Minister attributed decisive weight to the circumstance that the applicant had never resided lawfully in the Netherlands and that there was no indication whatsoever of an impossibility to exercise the family life at issue in Suriname.
23. The Minister further rejected the applicant’s argument that she ought to be exempted from the provisional residence visa requirement, considering inter alia that the length of the applicant’s stay in the Netherlands was a consequence of her personal choice to stay. She had met with several refusals of applications for a Netherlands residence title but had nevertheless opted each time to file a fresh request thus accepting the risk that at some point in time she would have to leave the Netherlands, at least temporarily. The Minister further considered that the applicant had been born and raised in Suriname where she had resided for most part of her life and that, given her age, she should be regarded as capable of returning to and fending for herself in Suriname, if need be with financial and/or material support from the Netherlands pending the determination of an application for a provisional residence visa to be filed by her in Suriname. The Minister concluded on this point that the case disclosed no circumstances warranting a finding that the decision not to exempt the applicant from the provisional residence visa requirement constituted an exceptional hardship within the meaning of article 3.71 § 4 of the Aliens Decree 2000.
24. On 17 May 2010, the applicant filed an objection against this decision with the Minister. She filed additional grounds for her objection and further information by letters of 20 and 25 May, and 8 June 2010.
25. On 2 July 2010, the applicant requested the Regional Court of The Hague to issue a provisional measure in the form of an injunction on her expulsion pending the objection proceedings.
26. On 3 August 2010, following a hearing held on 28 July 2010, the provisional-measures judge of the Regional Court of The Hague sitting in Amsterdam rejected the request for a provisional measure. This judge held that the applicant’s expulsion was not at issue for the time being, pursuant to article 64 of the Aliens Act 2000, which provides that removal will not take place when this is not safe given the state of health of the alien concerned.
27. On 19 December 2011 the Minister rejected the applicant’s objection of 17 May 2010. The applicant’s appeal against this decision was rejected on 17 July 2012 by the Regional Court of The Hague sitting in Dordrecht. Although a further appeal lay with the Administrative Jurisdiction Division, no further information about the proceedings on this request for a residence permit has been submitted.
2. The applicant’s placement in aliens’ detention
28. On an unspecified date in 2006, an order was imposed on the applicant to report (meldingsplicht) daily to the aliens’ police. On the basis of her personal circumstances this order was amended to an obligation to report once a month as from 20 December 2007. The applicant failed to comply with this order.
29. On 26 February 2010, the applicant’s lawyer was informed by the aliens’ police that – as the applicant’s appeal against the judgment of 8 December 2009 (see paragraph 15 above) did not have suspensive effect – they would proceed with the applicant’s effective removal.
30. On 4 March 2010, the applicant was summoned to report to the police on 11 March 2010 and to bring her passport in connection with her departure from the Netherlands.
31. On 10 April 2010, having failed to respond to the summons of 4 March 2010, the applicant was placed in aliens’ detention (vreemdelingenbewaring) for removal purposes in accordance with article 59 § 1 (a) of the Aliens Act 2000. She was taken to the Zeist detention centre where she was found to be pregnant, her due date being 14 December 2010.
32. On 11 April 2010, the applicant filed a request for release from aliens’ detention which was rejected on 27 April 2010 by the Regional Court of The Hague sitting in Rotterdam. It rejected the applicant’s arguments to the effect that there were no reasonable prospects of her removal within a reasonable delay as well as her complaint under Article 5 § 1 (f) of the Convention that her placement in aliens’ detention had been imposed for another purpose than her expulsion. The applicant’s subsequent appeal to the Administrative Jurisdiction Division was dismissed on 7 June 2010. The Administrative Jurisdiction Division confirmed the ruling of 27 April 2010.
33. On 30 April 2010, the applicant sent a copy of her Surinamese passport – issued in 2009 – to the Netherlands immigration authorities, explaining that her first name had been misspelt in this passport. She had sent it back to Suriname for correction.
34. On 11 May 2010, the applicant filed a fresh request for release, relying on inter alia Article 3, Article 5 §§ 1 (f) and 4 and Article 8 of the Convention. This request was rejected on 1 June 2010 by the Regional Court of The Hague sitting in Rotterdam. It found that the applicant’s age and pregnancy formed an insufficient basis for finding that her detention was contrary to Article 3 and that she had not demonstrated that, against that background, her conditions of detention were incompatible with that provision. Further having noted, inter alia, that her grievances under Articles 5 and 8 had already been rejected in the ruling of 27 April 2010 (see paragraph 32 above) and that a reminder had been addressed by the Netherlands authorities to the Surinamese authorities on 12 May 2010, the Regional Court found that there remained sufficient prospects of removal within a reasonable delay and that the Netherlands authorities displayed due diligence in their conduct of the proceedings. It added – noting that the applicant had spent two months in aliens’ detention – that it was constant case law that during the first six months of aliens’ detention it was generally held that the alien’s personal interest in being released was outweighed by the public interest in continuing aliens’ detention but that specific circumstances could shift this balance before six months had elapsed. It did, however, not find that the applicant’s arguments based on her pregnancy carried such weight that on these grounds her detention should be discontinued at this stage. No further appeal lay against this ruling.
35. On 24 June 2010 the applicant filed a new request for release from aliens’ detention with the Rotterdam Regional Court. This request was rejected on 8 July 2010. Noting the progress report submitted by the Minister of Justice on 28 June 2010, it found that there remained sufficient prospects of expulsion within a reasonable delay and that the Netherlands authorities were pursuing the applicant’s removal with sufficient diligence. It further rejected the applicant’s argument that the procedure followed during her transports to hospital for medical check-ups, when she was handcuffed and made to wear a stick attached to her leg in order to prevent her from bending her knees and running away, was contrary to Article 3 of the Convention.
36. On 28 June 2010, the applicant complained to the Supervisory Board (Commissie van Toezicht) of the Zeist detention centre that she had been informed on 17 June 2010 by the governor of this centre that, due to her pregnancy, she was no longer required to wear a stick attached to her leg during transports to hospital for control visits to the gynaecologist but that she continued to be required to wear handcuffs during such transports. According to the applicant this was in violation of her rights under Article 3 of the Convention. She further complained that, for security reasons, her husband was not allowed to be present during her medical consultations in hospital.
37. In its letter of 29 June 2010 and addressed to the applicant’s lawyer, the Netherlands section of Amnesty International expressed its concern about the applicant’s placement in aliens’ detention. Although aware that the applicant had failed to respect the duty to report as imposed on her, Amnesty International considered that a less severe measure than deprivation of liberty would be appropriate in the particular circumstances of the applicant’s case.
38. On 15 July 2010, the applicant complained to the Supervisory Board that the meals given to her in the detention centre were inadequate in view of her pregnancy. On 3 August 2010, the applicant raised the same three complaints as filed with the Supervisory Board of the Zeist detention centre on 28 June and 15 July 2010 with the Supervisory Board of the Rotterdam detention centre, where she had been transferred to on 19 July 2010.
39. By letter of 28 July 2010, sent in reply to a letter apparently sent by the applicant on 23 July 2010, the Head of the Medical Service of the Zeist detention centre informed the applicant that, on the basis of a referral by a general practitioner, her pregnancy would be followed by a gynaecologist and that the Zeist detention centre policy would be followed during her transports to hospital. The applicant was further informed that her husband was not allowed to accompany her to hospital; that, for security reasons, the dates of her medical check-ups were not communicated to her beforehand; that she was provided with extra food; and that she had the possibility to order and cook food herself.
40. The applicant was released from aliens’ detention on 5 August 2010.
41. The child, the couple’s third, was born on 28 November 2010.
42. On 12 November 2010 the Supervisory Board of the Rotterdam detention centre rejected the applicant’s complaints of 3 August 2010. As regards the applicant’s obligation to wear handcuffs during transports to hospital, it found that the restraint at issue, namely wrist cuffs attached to a belt (“koppelboeien”), could not be regarded as inhuman or degrading treatment contrary to Article 3.
43. On 29 November 2010 the Supervisory Board of the Zeist detention centre – after having noted that in the course of the proceedings the direction of the Zeist detention centre had admitted that there had been no need to restrain the applicant and that they would act differently should this situation reoccur in the future – accepted as founded the applicant’s complaint of 28 June 2010 about having been required to wear restraints during transports to hospital. It rejected the remainder of the applicant’s complaints of 28 June 2010 and 15 July 2010.
44. On 6 June 2011 the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming) gave final decisions on the applicant’s appeals against the decisions of the supervisory boards of the Rotterdam and Zeist detention centres, respectively. It held that the use of restraints for pregnant women was impermissible. It also held that the applicant had received too little supplementary nutrition upon arrival at the Rotterdam detention centre.
B. Relevant domestic Netherlands and Surinamese law
1. Relevant domestic law
45. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the Aliens Act 1965, unless indicated otherwise in this Act.
46. On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. Unless indicated otherwise in the Aliens Act 2000, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence.
47. According to the transitional rules, set out in article 11 of the Aliens Act 2000, an application for a residence permit which was being processed at the time this Act entered into force was to be considered as an application under the provisions of the Aliens Act 2000. Because no transitional rules were set for the substantive provisions of the aliens’ law, the substantive provisions under the Aliens Act 2000 took effect immediately.
48. The Netherlands Government pursue a restrictive immigration policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of international agreements, or if their presence serves an essential Dutch interest, or for compelling reasons of a humanitarian reason (article 13 of the Aliens Act 2000). Respect for family life as guaranteed by Article 8 of the Convention constitutes an obligation under an international agreement.
49. As a rule, anyone wishing to apply for a Netherlands residence permit must first apply for a provisional residence visa. He or she must do so in person at the Netherlands diplomatic or consular mission in the country of origin or of habitual residence. A country of habitual residence is a country where the alien is entitled to reside for longer than three months on the basis of a residence permit. The power to grant a provisional residence permit rests with the Netherlands Minister of Foreign Affairs. An application for a provisional residence visa is in principle assessed on the basis of the same criteria as a residence permit. Only once such a visa has been issued abroad may the holder travel to the Netherlands and apply for a Netherlands residence permit.
50. The admission policy for family formation (gezinsvorming) and family reunion (gezinshereniging) purposes is laid down in Chapter B1 of the Aliens Act Implementation Guidelines 2000. A partner or spouse of a Netherlands national is in principle eligible for admission, if certain further conditions relating to matters such as public policy and means of subsistence are met.
51. Pursuant to article 3.71 § 1 of the Aliens Decree 2000, an application for a residence permit for the purpose of family formation shall be rejected if the alien does not hold a valid provisional residence visa. A number of categories of aliens is exempted from the requirement to hold a valid provisional residence visa (article 17 § 1 of the Aliens Act 2000 in conjunction with article 3.71 § 2 of the Aliens Decree 2000). In addition, under article 3.71 § 4 of the Aliens Decree 2000, the so-called hardship clause, the competent Minister may decide not to apply the first paragraph of that provision if it is considered that its application will result in exceptional hardship (onbillijkheid van overwegende aard). Chapter B1/2.2.1 of the Aliens Act Implementation Guidelines 2000 sets out the policy on the application of the hardship clause.
52. Pursuant to Chapter A4/7.6 of the Aliens Act Implementation Guidelines 2000, pregnant women are not expelled by aircraft in the six weeks leading up to the due date or the first six weeks after giving birth. Outside this period, pregnancy – in the absence of medical complications – is not a reason for not going ahead with expulsion.
53. An overview of the relevant domestic law and practice as regards placement in aliens’ detention is given in the Court’s decision on admissibility of 20 September 2007 in the case of Merie v. the Netherlands (no. 664/05).
54. All persons detained in the Netherlands can complain about their treatment in and conditions of detention to the complaints commission (beklagcommissie) of the Supervisory Board which, pursuant to article 7 § 1 of the Prison Act (Penitentiaire Beginselenwet), exists in every detention centre in the Netherlands. Decisions of the complaints commission can be appealed to the Appeals Board of the Council for the Administration of Criminal Justice and Protection of Juveniles. The latter’s rulings are final.
2. Relevant international and Surinamese law and practice
(a) The Agreement between the Kingdom of the Netherlands and the Republic of Suriname concerning the assignment of nationality
55. Formerly a country (land) within the Kingdom of the Netherlands, Suriname became an independent republic on 25 November 1975. The Agreement between the Kingdom of the Netherlands and the Republic of Suriname concerning the assignment of nationality (Toescheidingsovereenkomst inzake nationaliteiten tussen het koninkrijk der Nederlanden en de Republiek Suriname) of 25 November 1975, Tractatenblad (Netherlands Treaty Series) 1975, no. 132, [1976] 997 United Nations Treaty Series (UNTS) no. 14598, as amended by the Protocol of 14 November 1994, Tractatenblad 1994, no. 280, in its relevant parts, provides as follows:
“Article 2
1. The acquisition of Surinamese nationality pursuant to this Agreement shall entail the loss of Netherlands nationality.
2. The acquisition of Netherlands nationality pursuant to this Agreement shall entail the loss of Surinamese nationality.
Article 3
All Netherlands nationals of full age who were born in Suriname and whose domicile or place of actual residence is in Suriname on the date of the entry into force of this Agreement shall acquire Surinamese nationality.
Article 5
1. Netherlands nationals of full age who were born in Suriname ... and on the date of the entry into force of this Agreement have their domicile or place of actual residence outside the Republic of Suriname may acquire Surinamese nationality, even outside the Republic of Suriname, by making a declaration signifying their desire for such nationality prior to 1 January 1986.
2. The persons referred to in paragraph 1 shall have the unconditional right to be admitted to the Republic of Suriname with their families at any time and there to be treated as Surinamese nationals in every sense.
3. Spouses of the persons referred to in paragraph 1 and their children, including adopted children, born before the year 2001 shall also have the right, under paragraph 2, to unconditional admission to the Republic of Suriname.
4. So long as they possess Netherlands nationality, the persons referred to in the preceding paragraphs may be granted no rights and subjected to no obligations which are incompatible with Netherlands nationality.”
(b) Surinamese immigration law and policy
56. The following information was taken from the internet web pages of the Surinamese Ministry of Police and Justice (Ministerie van Politie en Justitie), Department of Aliens’ Affairs (Hoofdafdeling Vreemdelingenzaken) and the Surinamese Consulate General in Amsterdam[2].
57. Aliens subject to visa requirements (visumplichtige vreemdelingen) – a category which includes Netherlands nationals – may enter Suriname on a tourist visa for up to ninety days. If they wish to remain in Suriname for longer, they must first obtain a short-residence visa (machtiging voor kort verblijf, “MKV”) via a Surinamese embassy or consulate in his or her country of origin. This document enables the alien to request a residence permit after arriving in Suriname.
58. The short-residence visa requirement is waived in respect of aliens of Surinamese origin. They may enter Suriname on a tourist’s travel document and request a Surinamese residence permit after their arrival. This category is defined to include, inter alios, the following:persons born in Suriname who now have a nationality other than Surinamese;persons born outside Suriname to parents one or both of whom was, or were, born in Suriname, those persons having or having had legally recognised family ties (familierechtelijke betrekkingen) with said parent or parents, and who now have a nationality other than Surinamese;the spouse and minor children who factually belong to the family of one of the above.
59. In addition, a multiple-entry tourist visa valid for three years is available for aliens of Surinamese origin (provided that they have not been refused entry into Suriname during the preceding five years).
60. Certain foreign nationals, Netherlands nationals among them, may purchase a single-entry “tourist card” which in the case of aliens of Surinamese origin (as defined above) is valid for up to six months (three months in all other cases). Documents to be submitted are a passport valid for six months or more on arrival, a return ticket and (if applicable) proof of Surinamese origin. The tourist card may be purchased at Surinamese embassies and consulates worldwide, at KLM and SLM airline counters in the departure lounge of Amsterdam Schiphol Airport handling flights to Suriname, and at Johan Adolf Pengel International Airport (Paramaribo-Zanderij) in Suriname.
C. Language
61. In Suriname Dutch is the language used by government and administration. It is taught in public education. It is also widely spoken, in addition to languages traditionally confined to particular ethnic groups.
62. In 2005 Suriname became an associate member of the Dutch Language Union (Nederlandse Taalunie), an international organisation created in 1980 which originally comprised only the Netherlands and Belgium. The aims of that organisation may be summarised as the common development and promotion of the Dutch language and of Dutch-language literature (Articles 2 and 3 of the Treaty between the Kingdom of the Netherlands and the Kingdom of Belgium on the Dutch Language Union (Verdrag tussen het Koninkrijk der Nederlanden en het Koninkrijk België inzake de Nederlandse Taalunie (9 September 1980, Tractatenblad (Netherlands Treaty Series) 1980, no. 147).
D. European Union law
63. Article 20 of the Treaty on the Functioning of the European Union reads as follows:.
“1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”
64. In its judgment of 8 March 2011, Case C‑34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), the Court of Justice of the European Union ruled as follows:
“Article 20 [of the Treaty on the Functioning of the European Union] is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”
COMPLAINTS
65. The applicant complained that the obligation to return to Suriname in order to obtain a provisional residence visa and the resulting separation from her children in the Netherlands which could harm their development, her placement in aliens’ detention, the refusal – as a consequence of the insistence on a provisional residence visa – to admit her to the Netherlands, and the conditions in which she was held in aliens’ detention amounted to treatment proscribed under Article 3 of the Convention. She further complained that, as regards this grievance, she did not have an effective remedy as guaranteed by Article 13 of the Convention.
66. The applicant further complained that her placement in aliens’ detention was contrary to Article 5 §§ 1 (f) and 4 of the Convention and thus entitled her to compensation pursuant to Article 5 § 5 of the Convention.
67. The applicant argued that not exempting her from the obligation to hold a provisional residence visa issued by the Netherlands mission in Suriname before she is able to apply for a residence permit in the Netherlands is contrary to her rights guaranteed by Article 8 of the Convention. Apart from the fact that the processing of such an application could take anything from three months to a year or more, there is no guarantee that a visa will actually be granted. She further complained that, on this point, she did not have an effective remedy within the meaning of Article 13 of the Convention.
68. The applicant complained under Article 14 in conjunction with Article 8 of the Convention that the obligation to hold a provisional residence visa was discriminatory as, if her husband and children had held the nationality of another member state of the European Union than the Netherlands, she would not be subject to this obligation.
69. The applicant complained under Article 1 of Protocol No. 12 that, during her placement in aliens’ detention, her husband was not allowed to accompany her to her medical check-ups in hospital.
70. The applicant lastly complained that the refusal to exempt her from the provisional residence visa requirement was, and her resulting removal to Suriname would be, in breach of Article 3 § 1 of Protocol No. 4.
THE LAW
A. Complaints relating to the obligation imposed on the applicant by the State authorities to hold a provisional residence visa (Articles 8, 13 and 14 of the Convention)
1. Article 8 of the Convention
71. The applicant argued that the refusal by the authorities of the respondent State to exempt her from the obligation to hold a provisional residence visa constituted a breach of Article 8 of the Convention.
72. Article 8 of the Convention, insofar as relevant, reads as follows:
“1. Everyone has the right to respect for his ... 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 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.”
(a) Argument before the Court
73. The Government considered it remarkable that before travelling to the Netherlands the applicant had never applied for a (provisional residence) visa for the purpose of visiting or living with Mr W. even though she had been in a relationship with him since as long ago as 1987. The applicant seemed to have made this decision deliberately with a view to settling in the Netherlands and thus presenting the Netherlands authorities with a fait accompli.
74. The Government further maintained that the requirement of a provisional residence visa, to be applied for by the alien concerned in his or her country of origin, did not in itself constitute “excessive formalism”. While such a finding had been reached in Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, ECHR 2006‑I, it was related to the particular circumstances of that case and not to the administrative requirement per se.
75. The Government pointed out that the applicant had entered the Netherlands on a visa intended to enable her to visit a member of her family. After overstaying her allotted time and having taken up illegal residence in the Netherlands, she had submitted her first request for a residence permit for the purpose of “paid employment”. This, and all subsequent, requests for residence rights had been met with a refusal; the applicant had several times been handed an order to leave the country. The applicant accordingly had no grounds whatsoever for believing, and had been given no reason to believe, that she would be issued with a residence permit.
76. According to the Government, there were no exceptional circumstances requiring the applicant to be allowed residence notwithstanding her failure to comply with the applicable formalities. Nor was there anything to prevent the applicant from exercising her right to family life in Suriname. Her husband was of Surinamese origin as she herself was and had relatives living in that country; she herself had lived there until the age of thirty. The applicant’s suggestion that her husband and her children would not be admitted to Suriname was unsubstantiated. The children, moreover, were still young enough to adapt to life in Suriname; there was nothing to suggest that they were so strongly rooted in Netherlands society that they would be unable to.
77. The applicant submitted that her intention had been to settle in the Netherlands with her partner, later her husband, and that this had at all relevant times been known to the Netherlands immigration authorities notwithstanding her ticking the box “paid employment” on the official request form.
78. The immigration proceedings had been unnecessarily protracted. In addition, on many occasions after refusing the applicant residence rights, the authorities had allowed much time to pass without taking action to deport her to Suriname. The applicant was not to be blamed for the time thus lost.
79. Her husband could not be expected to travel to Suriname, given that he had been banned from direct flights to that country after having been convicted of drugs offences.
80. Were the applicant’s children to follow the applicant to Suriname, their schooling would be interrupted for as long as it would be necessary to process her application for a provisional residence visa. Moreover, her children were Netherlands nationals and had never been in Suriname; they did not speak the language.
81. The applicant submitted that Article 20 of the Treaty on the Functioning of the European Union, as interpreted by the Court of Justice of the European Union in its Zambrano judgment, entitled her to remain in the European Union on the strength of the Netherlands nationality of her dependent children.
82. In light of the parties’ submissions, the Court finds that this part of the application raises issues of fact and law that require an examination of the merits and that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Article 13 of the Convention taken together with Article 8
83. The applicant alleged that, in respect of her grievance under Article 8, she did not have an effective remedy within the meaning of Article 13 of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] 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.”
The Government denied this.
84. The Court reiterates that the expression “effective remedy” used in Article 13 cannot be interpreted as a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006; and Figiel v. Poland (no. 2), no. 38206/05, § 33, 16 September 2008).)
85. Accordingly, the mere fact that the competent domestic administrative and judicial authorities examined but rejected the applicant’s claim that the refusal to exempt her from the provisional residence visa requirement was contrary to Article 8 does not of itself warrant the conclusion that the applicant was denied an effective remedy under Article 13 of the Convention.
86. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
3. Article 14 taken together with Article 8
87. The applicant alleged that, had her husband had the nationality of any European Union member State other than the Netherlands, she would not have been required to obtain a provisional residence visa. She relied on Article 14 of the Convention taken together with Article 8. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] 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 Government denied this.
88. The Court finds that the applicant has failed to establish the truth and accuracy of her assertion that spouses of non-Netherlands European Union nationals are exempted from the requirement of a provisional residence visa.
89. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Complaints relating to the decision to order the applicant’s placement in aliens’ detention as well as the conditions therein (Articles 3 and 13 of the Convention)
90. The applicant also complained that the decision to order her placement in aliens’ detention as well as the conditions in which she was held in aliens’ detention violated her rights under Article 3 of the Convention and that, in this respect, she did not have an effective remedy within the meaning of Article 13 of the Convention. Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
91. The Government submitted that the applicant was no longer a victim of any violation to the extent that she had obtained rulings in her favour from the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection (see paragraph 44 above) and that her complaints were unfounded for the remainder.
92. To the extent that, in view of the rulings referred to by the Government, the applicant can still be considered a “victim” within the terms of Article 34 of the Convention in respect of her complaint under Article 3, the Court reiterates that to fall within the scope of this provision, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. The suffering and humiliation involved must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his or her human dignity, that the manner and method of the execution of the measure do not subject him of her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and well-being are adequately secured (see Enea v. Italy [GC], no. 74912/01, §§ 55-58 with further references, ECHR 2009‑...; and Zakharkin v. Russia, no. 1555/04, §§ 120-121 with further references, 10 June 2010).
93. The Court notes that the applicant was held in aliens’ detention from 10 April 2010 to 5 August 2010. Not taking into account the applicant’s complaints accepted as founded by the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection, the Court has found no indication in the contents of the case file that during her placement in aliens’ detention the applicant was denied adequate medical or other care required by her pregnancy, or that the conditions in which she was held in aliens’ detention warrant a finding that these amounted to treatment proscribed by Article 3.
94. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
95. To the extent that, in this context, the applicant further relied on Article 13 of the Convention, it is the Court’s well-established case law that a complaint may only be made under Article 13 in connection with a substantive claim which is “arguable” (see, for example, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 137, ECHR 2003‑VIII; and Ashworth and Others v. the United Kingdom (dec.), no. 39561/98, 20 January 2004). The Court has found that the applicant’s complaints under Article 3 in respect of her placement in aliens’ detention are manifestly ill-founded. Consequently, those complaints cannot be said to be “arguable” within the meaning of the Convention case law.
96. It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4.
C. Complaints relating to the legality of the applicant’s placement in alien’s detention (Article 5 §§ 1 (f), 4 and 5 of the Convention)
97. Lastly, the applicant complained that her placement in aliens’ detention was contrary to Article 5 §§ 1 (f) and 4 of the Convention which entitled her to compensation pursuant to Article 5 § 5 of the Convention.
98. Article 5 of the Convention, in its relevant parts, reads:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
99. The Government submitted that the applicant’s detention was entirely in line with domestic law, that any delays complained of were explainable by the applicant’s own uncooperative attitude, and that the applicant had had available – and had availed herself – of the guarantees offered by domestic procedure. Moreover, the applicant had been released following a weighing of her interests against the public interest.
100. The Court finds that the applicant, after she had failed to respect an order to report regularly to the aliens’ police as well as a subsequent summons to report to the police for the purposes of her removal, was detained “with a view to deportation” within the meaning of Article 5 § 1 (f) of the Convention. The Court recalls that Article 5 § 1 (f) requires that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of this provision whether the underlying decision to expel can be justified under national or Convention law. However, any deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not pursued with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) of the Convention (see Saadi v. the United Kingdom [GC], no. 13229/03, § 72, ECHR 2008‑...).
101. As to the question whether the applicant’s placement in aliens’ detention was lawful for the purposes of Article 5 § 1 (f) of the Convention, the Court recalls that where the lawfulness of detention is in issue, including the question whether a “procedure prescribed by law” has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009‑...).
102. The Court observes that, in its three judgments given on 27 April 2010, 1 June 2010 and 8 July 2010 (see paragraphs 32, 34 and 35 above), the Rotterdam Regional Court rejected the applicant’s argument that her placement in aliens’ detention was unlawful under the relevant statutory provisions and concluded that in reason there were sufficient grounds justifying depriving the applicant of her liberty. Noting the reasons given by the Regional Court in these decisions for this finding, the Court cannot consider these decisions to be unreasonable or arbitrary or otherwise contrary to the applicant’s rights under Article 5 § 1 (f) of the Convention.
103. Insofar as the applicant relies on Article 5 § 4 of the Convention, the Court notes that, following requests for release filed by the applicant, the lawfulness of her placement in aliens’ detention was examined and determined by the Rotterdam Regional Court on three occasions, namely in its rulings of 27 April 2010, 1 June 2010 and 8 July 2010. The Court has found no indication in the case file to support a finding that the duration of these proceedings fell short of the requirements set out in Article 5 § 4 of the Convention. Furthermore, noting the possibility under the Aliens Act 2000 to challenge the lawfulness of a placement in aliens’ detention before the Regional Court at any point in time, a possibility relied on by the applicant on three occasions during her detention, the Court finds no indication that the applicant’s rights under Article 5 § 4 of the Convention have been disrespected.
104. In so far as the applicant relies on Article 5 § 5 of the Convention, the Court notes that this provision guarantees an enforceable right to compensation only to those who have been the victims of arrest or detention contrary to Article 5 of the Convention. In the absence of any such finding in the present case, the Court is of the opinion that no issue arises under this provision.
105. It follows that this part of the application must also be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
D.Other complaints
106. In so far as the applicant also complained that the refusal to exempt her from the obligation to return to Suriname in order to obtain a provisional residence visa and the resulting separation from her family in the Netherlands was contrary to Article 3 which prohibits inter alia inhuman treatment, and Article 3 § 1 of Protocol No. 4 which prohibits the expulsion of nationals, the Court finds – in the light of all the material in its possession and in so far as the matters complained of are within its competence – that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
107. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court
Declares admissible, by a majority and without prejudging the merits, the applicant’s complaint under Article 8 of the Convention;
Declares inadmissible, by a majority, the applicant’s complaints under Article 3 and Article 5 of the Convention;
Declares inadmissible, unanimously, the remainder of the application.
Santiago QuesadaJosep Casadevall
RegistrarPresident
[1] Under this policy a residence title could be granted if a request for a residence permit had not been determined within a period of three years for reasons not imputable to the petitioner and provided that there were no contra-indications such as, for instance, a criminal record.
[2] , accessed on 7 August 2012;
, accessed on 7 August 2012
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