AS TO THE ADMISSIBILITY OF
Application No. 22791/93
by Bidiawatie MAIKOE and Fijentiemala BABOELAL
against the Netherlands
The European Commission of Human Rights sitting in private on
30 November 1994, the following members being present:
Present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. 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 5 August 1993 by
Bidiawatie MAIKOE and Fijentiemala BABOELAL against the Netherlands and
registered on 19 October 1993 under file No. 22791/93;
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 first applicant is a Surinamese national, born in 1968 in
Surinam, and currently resides at Rotterdam. The second applicant is
the first applicant's daughter and has the Dutch nationality. She was
born in 1988 and resides at Rotterdam with the first applicant. Before
the Commission the first applicant is represented by Mr. Angad Gaur,
a lawyer practising in The Hague. The second applicant is represented
by the first applicant.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
On 19 August 1986 the first applicant arrived in the Netherlands.
On 25 February 1987 she married a Dutch national. On 17 March 1987 she
requested and obtained a Dutch residence permit in order to stay with
her spouse. This permit expired on 17 March 1988, on which date she
obtained a residence permit for an unlimited period for the same
purpose.
On 13 June 1988 the first applicant and her husband had a
daughter, the second applicant. The daughter holds Dutch nationality
in accordance with the Dutch Nationality Act (Rijkswet op het
Nederlanderschap), as her father is a Dutch national.
In September 1989 the first applicant's husband left the marital
home. According to the applicant he continued to see his daughter every
second week; according to the Dutch courts no intensive contact between
father and daughter was shown. The father did not financially or
otherwise contribute to his daughter's upbringing. It appears that the
first applicant has started divorce proceedings.
On 2 October 1989 the first applicant was granted welfare
benefits under the General Welfare Act (Algemene Bijstandswet) for
herself and her daughter.
On 29 August 1990 the first applicant applied for an independent
residence permit. However, as she had not been married for three years
when her husband left the marital home in September 1989, her request
was dealt with as a first request for admission to the Netherlands. On
5 September 1990 the Deputy Minister of Justice (Staatssecretaris van
Justitie) rejected the applicant's request.
On 17 October 1990 the first applicant requested a review
(herziening) of this decision. As this request was not determined
within three months she filed an appeal with the Judicial Division of
the Council of State (Afdeling Rechtspraak van de Raad van State) on
18 January 1991 against the fictitious rejection (fictieve weigering)
of the request for review.
Following a hearing on 27 June 1991, the Advisory Commission for
Aliens (Adviescommissie voor Vreemdelingenzaken) unanimously advised
the Deputy Minister of Justice to reject the request for review. The
Commission considered that the applicant did not fulfil the
requirements for admission to the Netherlands, that her presence in the
Netherlands did not serve an essential Dutch interest and that there
were no compelling reasons of a humanitarian nature to allow her to
reside in the Netherlands.
The Advisory Commission found no indication that the applicant
would not be able to support herself in Surinam, given that her mother,
brothers and sister, on whom she could rely if need be, reside in
Surinam. The fact that her daughter had the Dutch nationality did not
constitute a compelling humanitarian reason as the girl was very young
and could not be considered as being rooted in Dutch society. In this
respect the Commission also took into account that the girl had only
briefly lived with her father, that there were apparently no regular
contacts between the child and her father, that no visiting agreement
had been concluded and that the father does not contribute to the
child's upbringing.
Following a hearing on 15 December 1992, the Judicial Division
rejected the first applicant's appeal on 3 May 1993. It recalled that
pursuant to Section 11 para. 5 of the Aliens Act (Vreemdelingenwet) the
granting of a residence permit or the prolongation thereof can be
refused on grounds of public interest (algemeen belang), whereas the
Dutch authorities in applying Section 11 para. 5 of the Aliens Act
follow a restrictive immigration policy in view of the situation as
regards the population and employment in the Netherlands. Insofar as
the first applicant had complained of a violation of Article 3 of
Protocol No. 4 to the Convention, the Judicial Division held that:
"the challenged decision implies only the refusal of the applicant's right to remain in the Netherlands, but does not as such impinge on the right of her daughter to stay in the Netherlands. If this decision leads, as the applicant states, to her daughter's departure from the Netherlands, then this will only be the result of the applicant's choice to take the child with her to Surinam." With regard to the alleged violation of Article 8 of the Convention, the Judicial Division held that the interference with the first applicant's right to family life with her daughter was in accordance with Dutch law and justified in the interest of the economic well-being of the Netherlands. The Judicial Division took account of the fact that the second applicant was 21/2 years old at the time of the challenged decision by the Deputy Minister and could, therefore, not be regarded as deeply rooted in Dutch society, and that no objective obstacles to the enjoyment of family life in Surinam had appeared. The Judicial Division also took into consideration that the first applicant lived on welfare benefits. The Judicial Division also noted that as a result of the rejection of the first applicant's request for a residence permit it seemed seem likely that the second applicant would have to follow her mother to Surinam. It examined the question whether or not this would violate the second applicant's right under Article 8 of the Convention to respect for her family life with her father. It found that the refusal of the first applicant's request interfered with the second applicant's right to respect for her family life under Article 8 para. 1 of the Convention, but that this interference was justified under para. 2 of this provision as being in the interest of the economic well-being of the country. The Judicial Division observed that the contacts between the second applicant and her father did not seem to be of an intensive nature, that the father did not support either the first or the second applicant financially and that the first applicant received welfare benefits on behalf of the second applicant. COMPLAINTS 1. The applicants complain under Article 3 of Protocol No. 4 to the Convention that the first applicant's expulsion to Surinam would lead to a de facto expulsion of the second applicant, as the first applicant has no alternative but to take her daughter with her to Surinam. 2. The applicants further complain under Article 8 of the Convention that the refusal to grant the first applicant a residence permit constitutes not only an unjust interference with the right to respect for family life between themselves, but also between the second applicant and her father. They complain in particular that this interference cannot be regarded as being necessary in a democratic society. THE LAW 1. The applicants complain under Article 3 of Protocol No. 4 (P4-3) to the Convention that the first applicant's expulsion to Surinam would entail a de facto expulsion of the second applicant. Article 3 of Protocol No. 4 (P4-3), insofar as relevant, reads: "1. No one shall be expelled, by means (...) of an individual (...) measure, from the territory of the State of which he is a national. (...)." The Commission observes in the first place that the first applicant is a Surinamese national and does not hold Dutch citizenship. Article 3 of Protocol No. 4 (P4-3) only prohibits a Contracting State from expelling its own nationals. The Commission, therefore, finds that the first applicant cannot claim any right under this provision as regards her possible expulsion from the Netherlands. As regards the second applicant the Commission notes that the Dutch authorities have not ordered her expulsion. It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicants further complain under Article 8 (Art. 8) of the Convention that there has been an interference with the right to respect for family life between, on the one hand, the first and the second applicant, and, on the other, between the second applicant and her father. The relevant part of Article 8 (Art. 8) of the Convention 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 recalls in the first place 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 (cf. No. 13654/88, Dec. 8.9.88, D.R. 57 p. 287). It is within the discretionary power of Contracting States to set conditions for admission and residence of aliens and to revoke residence permits in cases where the grounds on which they have been granted no longer exist. Nevertheless, the exclusion of a person from a country where close members of his or her family are living may amount to an infringement of Article 8 (Art. 8) of the Convention. In determining whether the expulsion of an alien interferes with his or her right to respect for family life within the meaning of Article 8 (Art. 8), regard must be had to the practicability and reasonableness of the close members of family concerned accompanying or following the alien and not only to the links established in the host country, but also to their precarious nature where an initial residence permit has been conditional throughout (cf. No. 9478/81, Dec. 8.12.1981, D.R. 27 p. 243; and No. 11333/85, Dec. 17.5.85, D.R. 43 p. 227). A further factor to be considered is the links which the deportee and the other members of the family have with the country of destination and in particular whether there are further members of the family or relatives there. This principle applies also where one or more of the deportee's family are nationals of the country ordering the expulsion (cf. No. 11278/84, Dec. 1.7.85, D.R. 43 p. 216). It is alleged that it cannot be expected of the second applicant to follow her mother, who alone provides for her care, to Surinam. The Commission notes that the second applicant is a minor of Dutch nationality and at present six years old. No compelling reasons have been shown why the second applicant cannot accompany her mother to Surinam. Family life between mother and daughter could be continued there. The Commission, therefore, finds no lack of respect for family life between mother and daughter. This part of the application must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded. 3. Insofar as the second applicant complains that the expulsion of the first applicant would interfere with the second applicant's family life with her father, the Commission recalls that family life continues after divorce or separation (cf. Eur. Court H.R., Hokkanen judgment of 23 September 1994, Series A no. 299-A, para. 54; No. 11526/85, Dec. 10.10.1986, D.R. 50 p. 219; and No. 12411/86, Dec. 4.3.1987, D.R. 51 p. 245). There is therefore family life within the meaning of Article 8 (Art. 8) of the Convention between the second applicant and her father. The Commission notes that both the second applicant and her father are Dutch nationals and therefore entitled to stay in the Netherlands. It is true that, in case the first applicant will be expelled to Surinam, the second applicant may follow her. Though this will be the result of the first applicant's decision for which the respondent State cannot be held responsible under the Convention, it will in fact lead to an interference of family life between father and daughter. Even assuming that the decision complained of would amount to a lack of respect by the Dutch authorities for the second applicants' family life, the Commission is of the opinion that this interference is justified under para. 2 of Article 8 (Art. 8-2) of the Convention for the following reasons. The Commission notes that the first applicant's request for a residence permit was rejected on the ground that she did not fulfil the conditions for obtaining an independent residence permit, since she had not been married for three years at the time her husband left her, since her presence in the Netherlands did not serve any specific Dutch interest, and since no compelling humanitarian reasons were considered to exist on the basis of which she could be granted a residence permit. Recalling that it is in the first place for the domestic authorities to apply and interpret domestic law, the Commission, noting the grounds of the decisions complained of, is satisfied that the interference complained of was "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. As regards the legitimate aim of the interference, the Commission notes that the applicant received welfare benefits. Recalling that the policy followed by the Dutch authorities in immigration matters is clearly related to the economic well-being of the country, the purpose being, inter alia, to restrict immigration into a densely populated country (cf. Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, p. 15, para. 26), the Commission accepts that the legitimate aim pursued is the preservation of the country's economic well-being within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. As to the necessity of the interference the Commission considers that in the present case the task of the Contracting States to maintain public order, in particular by exercising their right to control the entry, residence and expulsion of aliens, justifies the interference with the right to family life between the second applicant and her father. It follows that this part of the application must also be rejected under Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Second Chamber President of the Second Chamber (K. ROGGE) (S. TRECHSEL)
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