AS TO THE ADMISSIBILITY OF
Application No. 23002/93
by K.F.Y.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 January 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 12 November 1993
by K.F.Y. against the Netherlands and registered on 24 November 1993
under file No. 23002/93;
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 naturalised Dutch citizen, born in 1950, and
residing at Rotterdam where he owns and runs a company. Before the
Commission he is represented by Ms. V.M. Weski, a lawyer practising in
Rotterdam.
The facts, as submitted by the applicant, may be summarised as
follows.
In 1980 the applicant, who was at that time a resident of Hong
Kong, where he lived with his wife and four children, travelled to the
Netherlands for a holiday. He lost his passport and was unable to
obtain a new passport until 1987. He had therefore been forced to
remain in the Netherlands. His wife and children remained in Hong Kong.
In 1983 the applicant's wife and mother of his four children, who
were born in 1970, 1972, 1976 and 1978 respectively, left the children
for an unknown destination. The children went to live with their
grandmother, who died in 1988. In 1985 they moved to a cousin, but she
emigrated to the United States in 1988. As from that moment the
children lived on their own in the cousin's house in Hong Kong until
either December 1987 or March 1989 when the eldest daughter travelled
to the Netherlands. The other children travelled to the Netherlands to
join their father, stepmother and sister in 1992 and 1993 respectively.
There are no other relatives in Hong Kong.
On 23 June 1987 the divorce between the applicant and his wife
was pronounced. On 28 January 1988 he married a Dutch woman. He has
since obtained Dutch nationality.
The applicant submits that, after his arrival in the Netherlands,
he had frequent contacts with his children when they were still living
in Hong Kong, both by letters and by telephone and that he also
regularly sent them money. In 1989 and 1990 he visited the three
children still remaining in Hong Kong and he stayed with them for one
month.
On 28 November 1989 the applicant requested entry visas
(machtiging tot voorlopig verblijf) for his children from the Ministry
of Foreign Affairs (Ministerie van Buitenlandse Zaken), even though his
eldest daughter appears to have been already living with him at that
time. In support of his request he claimed that the children could live
in his house and that he could support them and pay for their
education. He would also be able to employ them in his company. On
25 June 1990 his request was rejected.
The applicant filed an objection (bezwaarschrift) against this
decision on 10 August 1990 with the Minister of Foreign Affairs. After
having consulted an advisory board, the Minister rejected the objection
on 28 March 1991.
On 23 April 1991 the applicant lodged an appeal with the Judicial
Division of the Council of State (Afdeling Rechtspraak van de Raad van
State). To substantiate his appeal the applicant submitted copies of
bank statements, showing transfers of money from the Netherlands to his
children in Hong Kong in 1988, 1989 and 1990, telephone bills, showing
regular telephone calls to Hong Kong from 1986 until 1991, and letters
in Chinese characters, some of which bear dates in the years 1983,
1987, 1988 and 1989.
On 2 July 1993 the Judicial Division rejected his appeal. It
observed that, since the applicant's request was aimed at obtaining
permanent residence in the Netherlands for his children, they should
fulfil the general conditions for aliens wishing to obtain a residence
permit. Having regard to Dutch immigration policy, the Judicial
Division found there was no international agreement obliging the
Netherlands to grant the children residence and their presence in the
Netherlands would not serve any essential Dutch interest. Furthermore,
it observed that the children could not be granted residence permits
for family reunion, as the actual family ties had been severed since
1980. The Judicial Division further found that there were no compelling
reasons of a humanitarian nature allowing them to reside in the
Netherlands since the children, given their age, should be able to live
independently in Hong Kong.
The Judicial Division also rejected the applicant's argument that
his eldest daughter, after having undergone an operation in Hong Kong
in February 1989, needed further medical treatment in the Netherlands.
Insofar as the applicant had complained of a violation of Article
8 of the Convention, the Judicial Division held that, although there
existed family life between the applicant and his children, there was
no interference with the right to respect for this life as the refusal
to issue the entry visas did not deprive them of a residence permit
which enabled them to lead a family life in the Netherlands.
The Judicial Division finally examined whether in the present
case the right to respect for family life within the meaning of Article
8 of the Convention entailed a positive obligation on the Netherlands
to issue the entry visas. It found, however, that, in the absence of
compelling reasons of a humanitarian nature, the Minister for Foreign
Affairs had not impaired the applicant's right to respect for his
family life when he applied the restrictive immigration policy followed
by the Dutch authorities.
In the meantime, the applicant's two eldest children and the
applicant on behalf of the two youngest, requested residence permits
on 14 April 1993, at which date all the children resided, albeit
unlawfully, with their father in the Netherlands.
These requests were rejected by the Deputy Minister of Justice
on 8 and 10 June 1993 respectively. The subsequent requests for a
review of these decisions were denied suspensive effect on
17 August 1993. The applicant's two eldest children and the applicant
on behalf of the two youngest then instigated summary proceedings (kort
geding) before the President of the Regional Court of Haarlem,
requesting an injunction prohibiting the Dutch authorities from
expelling the children before their requests for a review of the
refusal to grant residence permits had been decided, or until the
application before the European Commission of Human Rights had been
dealt with.
In his interlocutory judgment of 7 December 1993 the President
of the Haarlem Regional Court considered that the review of the
decisions to refuse the children a residence permit did not have a
reasonable chance of success in the light of the Judicial Division's
rejection of the applicant's appeal against the refusal of entry visas.
However, having regard to the Commission's decision on the
admissibility of Application No. 14852/89 (Akhtar/Johangir, Dec.
29.6.92), the President adjourned the summary proceedings and ordered
the applicant and his children to produce evidence of the fact that
family life had continued to exist between them after the applicant's
departure from Hong Kong and to substantiate their claim that the
children could not be looked after in Hong Kong or anywhere else.
Furthermore they were ordered to indicate that there existed further
elements of dependency, involving more than the normal emotional ties,
between the applicant and his eldest daughter who was 19 years of age
at the time her father first requested an entry visa for her.
On 11 November 1994 the President adjourned the summary
proceedings until 15 February 1995, awaiting the outcome of the
proceedings before the Commission.
COMPLAINT
The applicant complains that the refusal by the Netherlands
authorities to issue entry visas to his children in order for them to
join him in the Netherlands, unjustly interfered with his right to
respect for his family life within the meaning of Article 8 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 November 1993 and registered
on 24 November 1993.
On 2 November 1994 the Commission was informed about the
proceedings pending before the Haarlem Regional Court by the Registrar
of this Court. On the same day the applicant was requested to submit
additional information regarding these proceedings.
By letter of 18 November 1994 the applicant submitted the
documents requested.
THE LAW
1. The applicant has complained under Article 8 (Art. 8) of the
Convention that the refusal to issue entry visas to his children
constituted an interference with the right to respect for his family
life.
This provision, 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
(...) the economic well-being of the country (...)."
The Commission considers that, in view of the subsequent
developments after the introduction of the application, the complaint
should now be regarded as being directed against the refusal by the
Dutch authorities to grant the applicant's children residence permits.
The Commission recalls that the Convention does not, as such,
guarantee an alien either the right to enter or to reside in a
particular country, or a right not to be expelled therefrom. It is
within the discretionary power of Contracting States to set conditions
for admission and residence of aliens. 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 (cf. No. 11274/84, Dec. 1.7.85, D.R. 43 p. 216).
2. The Commission notes that the applicant's eldest daughter was
already no longer a minor at the time the applicant requested an entry
visa for her. In this respect the Commission recalls that relationships
between adults - in the present case a father and his adult daughter -
would not necessarily acquire the protection of Article 8 (Art. 8) of
the Convention without evidence of further elements of dependency,
involving more than the normal emotional ties (cf. No. 10375/83,
Dec. 10.12.84, D.R. 40 p. 196). The Commission does not find that such
elements have been established in the present case.
It follows that the complaint under Article 8 (Art. 8) of the
Convention in respect of the applicant's family life with his eldest
daughter is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. The Commission observes with regard to the applicant's three
younger children that, until they came to the Netherlands, they had not
lived with him since 1980. The applicant lived in the Netherlands,
where he had remarried, and the children lived in Hong Kong, initially
with their mother and later with their grandmother followed by their
niece. From 1988 they lived on their own. The applicant helped to
support his children financially, had frequent contacts with them and,
in 1989 and 1990, visited them.
From the moment the three children arrived, albeit unlawfully,
in the Netherlands they have lived with their father, stepmother and
eldest sister as a family.
The Commission finds that the links between the applicant and
these three children may be regarded as constituting family life within
the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.
As regards the refusal by the Netherlands authorities to grant
residence permits to the applicant's three younger children, the
Commission considers, however, that it does not need to examine whether
this constitutes a violation of the applicant's right to respect for
family life, since the appeal proceedings against the refusal are still
pending. Although these proceedings have been denied suspensive effect,
the children are allowed to await the outcome of the summary
proceedings before the President of the Haarlem Regional Court. Given
that in these proceedings so far no final decision has been taken, the
Commission finds that the applicant has not exhausted domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention.
It follows that the remainder of the application must be rejected
under Article 27 para. 3 (Art. 2-3) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy