AS TO THE ADMISSIBILITY OF
Application No. 12139/86
by M. and O.M.
against the Netherlands
The European Commission of Human Rights sitting in private
on 5 October 1987 the following members being present:
MM. C.A. NØRGAARD, President
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 29 April 1986
by M. and O.M. against the Netherlands and registered
on 5 May 1986 under file N° 12139/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicants, may be
summarised as follows:
The first applicant is a Moroccan citizen, born in 1961 and
at present residing in Amsterdam. The second applicant is his father,
a Moroccan citizen, born in 1939 and living in Amsterdam. The first
applicant owns a coffee shop, the second applicant is a worker. They
state that the latter helps his son occasionally with his coffee shop.
They are represented by Mr. P. Boeles, a lawyer practising in
Amsterdam.
It appears that the first applicant entered the Netherlands on
15 March 1980 to live with his father, the second applicant, and the
latter's second wife. It seems that the second applicant has lived
lawfully in the Netherlands since 1966. The first applicant's mother,
the second applicant's first wife, stayed in Morocco. She and the
second applicant were divorced on 1 July 1981, after which the second
applicant, on 31 August 1981, was appointed the first applicant's
guardian. The first and second applicants have not lived together
since 1985.
It follows from Dutch practice in immigration matters that
in cases of polygamous marriages, only one wife and her children under
21 years of age can, as a rule, be granted a residence permit.
On 12 February 1981 the Head of Police of Amsterdam refused to
grant the first applicant a residence permit because he was the son of
the wife living in Morocco.
On 18 February 1981 the applicants appealed against this
decision to the Deputy Minister of Justice (Staatssecretaris van
Justitie).
Since no decision was taken within three months, the appeal
was presumed to have been rejected by virtue of Section 34 para. 2
of the Dutch Aliens Act (Vreemdelingenwet).
On 19 May 1981 the applicants appealed against this
presumed decision to the Council of State's Division for Jurisdiction
(Afdeling Rechtspraak van de Raad van State).
On 31 October 1985 the Council of State's Division for
Jurisdiction concluded, inter alia, that there were no compelling
reasons of a humanitarian nature militating against a refusal.
As regards Article 8 para. 1 of the Convention, the Council
of State concluded that, even assuming that the applicants had a
"family life" within the meaning of Article 8 para. 1 at the time
of the decision concerned, an interference with family life was
justified on one or more of the grounds included in Article 8 para. 2,
such as "the prevention of disorder".
The Council of State therefore dismissed the applicants' appeal.
COMPLAINTS
The applicants allege a violation of Article 8 of the
Convention. They complain that the first applicant's expulsion to
Morocco constitutes an unjustified interference with their right to
respect for family life, since he can now no longer stay with his
father, the second applicant.
Furthermore, the applicants allege that the Dutch policy
concerning polygamous marriages constitutes discrimination on the
ground of birth because, as a rule, it grants a residence permit to
one wife only and to the children born out of that relationship (Dutch
Aliens Circular (Vreemdelingencirculaire) G-4-16, No. 6).
Therefore this policy constitutes a violation of Article 14 of
the Convention in connection with Article 8.
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 provides, inter alia:
"Everyone has the right to respect for his private and
family life, his home and his correspondence."
The Commission first refers to its constant case-law according
to which the Convention does not guarantee a right to enter or reside
in a particular country. However, the Commission has also held that,
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. No. 7816/79, Dec. 19.5.1977, D.R. 9, p. 219;
No. 8245/78, Dec. 6.5.1981, D.R. 24, p. 98).
In cases where grown-up children wish to take up residence
with their parents the Commission examines the Article 8 (Art. 8) issue in the
light of the child's age, his or her factual living together with the
parents in the past and any financial or other dependency between
parents and child (No. 9492/81, Dec. 14.7.1982, D.R. 30, P. 232;
No. 10557/83, Dec. 5.7.1984, Chandarana v. United Kingdom, not
published).
As regards the facts of the present case the Commission notes
that the first applicant is 26 years of age and did not live with his
father from 1966 until 1980. Furthermore, it does not appear that
there is a financial or other dependency between the applicants, since
they have independent incomes and have not lived together since 1985.
The fact that the second applicant helps his son occasionally with the
latter's coffee shop does not in itself indicate any form of
dependency.
Accordingly the Commission concludes that in this case no family life
within the meaning of Article 8 (Art. 8) of the Convention exists, and that
therefore the applicants' complaint under this provision is manifestly
ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
2. The first applicant also complains that he has been
discriminated against on ground of birth by the Dutch policy of
distinguishing between children born out of different marriages. He invokes
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 ordre public. This does not mean, however, that there is no
right to respect for the family life of a father and his children born
by different wives in a polygamous marriage.
The Commission notes that the Dutch authorities have adopted a
policy, according to which the husband, who resides in the
Netherlands, is only allowed to bring with him one of his wives,
according to his own choice, and the children of that wife. Although
this rule could give rise to some problems in relation to minor
children born by another wife, there is no such problem in the present
case, when the child in question is 26 years old. Since there is no
interference with the first applicant's right to respect for his
family life, the Commission considers that the complaint of
discrimination in respect of that right is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
&SDECLARES THE APPLICATION INADMISSIBLE&_
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)