MUDE AND MOHAMED HUSSEIN v. THE NETHERLANDS

 

 

FOURTH SECTION

DECISION

Application no. 47878/20
Eyni MUDE and Suleyman MOHAMED HUSSEIN
against the Netherlands

 

The European Court of Human Rights (Fourth Section), sitting on 10 March 2026 as a Chamber composed of:

 Lado Chanturia, President,
 Jolien Schukking,
 Faris Vehabović,
 Lorraine Schembri Orland,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins,
 Anne Louise Bormann, judges,
and Hasan Bakırcı, Section Registrar,

Having regard to the above application lodged on 21 October 2020,

Having regard to the observations submitted by the Government of the Kingdom of the Netherlands (“the Government”) and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

INTRODUCTION

1.  The case concerns the refusal to grant a residence permit to the second applicant, who is an adult, for the purpose of family reunification with the first applicant, his mother. The applicants allege that not allowing the second applicant to reside with his mother in the Netherlands violates their rights under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).

THE FACTS

2.  The first applicant, Ms Eyni Mude, is a Dutch national and the second applicant, Mr Suleyman Mohamed Hussein, is a Somali national. They were born in 1968 and, allegedly, 1997 respectively and live in Schiedam. They were represented before the Court by Ms I.N. Schalken, a lawyer practising in Apeldoorn.

3.  The Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

   Background information

5.  The first applicant fled from Somalia in April 2011 and was granted international protection in the Netherlands on 11 July 2011.

6.  On 5 August 2011 the first applicant submitted a request for advice preceding the actual application for a provisional residence permit (machtiging tot voorlopig verblijf) for the purpose of asylum-related family reunification (nareis) for the second applicant and his two brothers, as well as for her (second) husband, her two other biological children and her eight foster children. At that time the second applicant was allegedly 14 years old. On 3 January 2012 a negative advice was issued because the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) did not find it credible that the applicants were related nor that they had lived together as a family prior to the departure of the first applicant (feitelijke gezinsband). No remedies were possible against that advice. Notwithstanding the negative advice, in May 2012, applications for provisional residence permits were submitted at the Dutch Embassy in Nairobi, Kenya. The applications of the second applicant and his brothers were rejected, following interviews, because the Deputy Minister did not accept that the second applicant and his brothers were still minors, given the lack of documentary evidence thereof and contradictory statements among the applicants. No information is available in the casefile concerning decisions on the requests of the first applicants’ other family members. The rejection of the second applicant’s request and that of his brothers was upheld by a judgment of the Regional Court of The Hague on 20 June 2013.

7.  On 20 October 2013 applications for asylum-related provisional residence permits were again submitted for the second applicant and his brothers. Those were rejected on 9 December 2013 by the Deputy Minister on the same grounds as the previous decisions. None of the decisions contained an assessment under Article 8 of the Convention. The decision of 9 December 2013 was not contested before the domestic courts and thus became final.

8.  On 1 December 2014, the second applicant, in Kenya, entered into a traditional Islamic marriage with Salma, who was born in January 1997. Initially he and his wife had lived together in a place which he had rented with his brothers and thereafter in a place which his wife and some girlfriends had rented. They had lived together in that manner until the second applicant’s departure on 1 May 2015 to the Netherlands where he applied for asylum on 9 July 2015. In his asylum application the second applicant indicated that he had lost touch with his wife since arriving in Europe (Greece) and had been unable to contact her since then. His application was denied on 4 February 2016 on the grounds that his statements were contradictory and thus insufficiently credible. That decision was upheld by the domestic courts and became final by judgment of 24 April 2017.

9.  Pending the second applicant’s asylum proceedings, the first applicant again applied, on 11 September 2015, for asylum-related family reunification for the second applicant’s brothers who had remained in Kenya. That application was approved on 13 June 2016 and these two adult sons joined her in the Netherlands.

   Family reunification proceedings (regulier) in respect of the second applicant

10.  On 13 February 2018 the second applicant applied for family reunification with the first applicant on the basis of Article 8 of the Convention. At that time, the second applicant was allegedly 21 years old. In his application he indicated that he wished to continue living with the first applicant in the Netherlands with whom he had lived since July 2015. The second applicant provided DNA evidence that showed that the first applicant was his mother. He also indicated that a copy of his former passport could be found in the family reunification file of his mother. He could not apply for a new passport because this could only be done in person at the Somalian Embassy in Brussels and, given his irregular status, he could not leave the Netherlands. As regards the marriage he had entered into in Kenya, he claimed that it was an unlawful marriage, as he and his wife had both been minors when they had married, their parents had not given permission and a random person in the mosque had drawn up their marriage certificate. The second applicant also argued that he had not shared a household with his wife, as they had always lived together with siblings and friends. He had not had any contact with his wife since 2015 and did not know whether she was alive. He also alleged that he had no family or social contacts left in Somalia, as his father had died, and his brothers all lived in the Netherlands. The second applicant noted that he was now living with his mother, who he claimed had always supported him financially from the Netherlands. The applicants argued that they shared a “family life” that fell within the scope of Article 8.

11.  His application was rejected by the Deputy Minister of Justice and Security on 22 March 2018. The Deputy Minister held that the second applicant was excluded from the domestic “young adult policy” (jongvolwassenenbeleid; see paragraph 16, below), as this policy only applied to those young adults who had remained part of their parents’ families, which was not considered to be the case if they had started a relationship or marriage. The Deputy Minister further held that Article 8 was not applicable because no “elements of dependency, involving more than the normal emotional ties” had been shown to exist between both applicants.

12.  An objection (bezwaar) lodged by the applicants against that decision was rejected on 30 October 2018, whereupon they lodged an appeal. In the appeal, the second applicant repeated his arguments as regards the unlawfulness of his marriage.

13.  On 25 February 2020 the Regional Court of The Hague dismissed the applicants’ appeal. It concluded that the second applicant was not eligible for family reunification based on the “young adult policy” because he did not comply with the conditions. In that respect the Regional Court noted that “family life” between the applicants had ended when the second applicant had married. It did not consider relevant the issues of the legal validity of the marriage or the fact that the marriage had lasted only five months. Once family life had been severed, a change in the factual situation could not entail that a young adult became part of his or her parents’ family again. Furthermore, the Regional Court held that “additional elements of dependency, involving more than the normal emotional ties” had not been shown to exist between the applicants. That they had missed each other and that the second applicant had lived with his mother since his arrival in the Netherlands, was regarded insufficient for this purpose.

14.  The applicants further appeal against that judgment was rejected by Administrative Jurisdiction Division of the Council of State with summary reasoning on 30 June 2020. With this judgment, the decision of 22 March 2018 of the Deputy Minister (see paragraph 11 above) became final.

RELEVANT LEGAL FRAMEWORK AND PRACTICE   Domestic law

15.  Section 14 of the Aliens Act 2000 reads as follows:

“1.  Our Minister shall be authorised:

a.  to grant ... a temporary [regular] residence permit;

...

3.  A temporary residence permit shall be granted subject to restrictions relating to the purpose of the stay. Regulations may be attached to the permit. Rules regarding the automatic granting, modification and extension, the conditions and the regulations may be laid down by or pursuant to an executive decree (algemene maatregel van bestuur) ...”

   Young adult policy

16.  Paragraph B7/3.8.1 of the Aliens Act 2000 Implementation Guidelines, as in force at the relevant time, included the following passage:

“The Immigration and Naturalisation Department of the Ministry of Justice and Security (‘the IND’) assumes the existence of family life between adults provided there is more than normal dependency between them (more than normal emotional ties).

The IND will assume the existence of family life as referred to in Article 8 [of the Convention] between parents and their adult children, without more than normal emotional ties being required, only if the adult child:

- is a young adult;

- lives with his or her parent(s) as a family;

- does not provide for himself or herself; and

- has not started his or her own family.”

17.  In a letter of 21 May 2015 (Kamerstukken II, 2014/15, 32 175, no. 57) the then Deputy Minister informed the Lower House of Parliament of the manner in which the young adult policy would be implemented in the family reunification procedure for refugees:

“In the Netherlands, (unmarried) children who have reached the age of majority can reunite with a parent or parents who have been granted an asylum residence permit in the Netherlands. The condition is that it must be shown that ‘more than normal emotional dependency’ exists between the adult child and the parent(s) in order to be admitted to the Netherlands. This policy can lead to undesirable situations in which an adult child is the only member of the family left behind in the country of origin or reception. In view of this and the commitment made by the then Deputy Minister during the general consultation [with the parliament] of 14 January 2015, I have decided that for adult children who have been part of the sponsor’s family until their departure, a standard dependency relationship between parent and that child will be considered sufficient for family reunification. This means that once the family connection has been proven to exist, possibly after an identification interview and/or DNA test, the adult child is eligible to apply for family reunification. The application will only be rejected if one or more counter-indications apply. These counter-indications may include:

– the adult child has started a family of his or her own;

– the adult child lives independently;

– the adult child is self-sufficient.

If one or more counter-indications apply, the [IND] will assess on a case-by-case basis whether the family relationship should be considered severed. In doing so, they will not only look at the period before the departure of the main person, but also ... at the period after the departure of the main person. If the family relationship is considered severed, it can be concluded that the adult child is not so dependent on the main person that he or she belongs to their family for that reason and is eligible for family reunification.”

COMPLAINT

18.  The applicants complained under Article 8 of the Convention that the refusal to grant the second applicant a residence permit to reside with the first applicant in the Netherlands had violated their right to respect for their family life.

THE LAW

19.  The applicants alleged a breach of Article 8, which, in so far as relevant, provides 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.”

   Whether Article 8 is applicable to the applicants’ case

The parties’ observations

20.  The Government pointed out that the assessment of the applicants’ initial application for asylum related family reunification (see paragraph 6 above) had been limited to an assessment of the existence of real family life (feitelijke gezinsband) on account of doubts as to the age of the second applicant. These doubts had not been dispelled at any point in those proceedings. No (separate) assessment under Article 8 had been carried out at the time, as the proceedings were meant as a fast-track procedure for family members of refugees.

21.  The Government further maintained their position that the second applicant did not meet the conditions for obtaining a residence permit under the domestic “young adult policy”. In that connection they noted that there was no indication that he had married under duress and that the marriage had continued after he had reached the age of majority. The second applicant had thus formed a family of his own with his Somali partner, had exercised “family life” with her, and no longer belonged to the core family of the first applicant.

22.  Next, the Government submitted that “additional elements of dependence, involving more than normal emotional ties” had not been shown to exist between the applicants and thus that their relationship did not amount to “family life” within the meaning of Article 8 of the Convention. No information had been presented in the domestic proceedings indicating that the first applicant required care or that he was caring for his mother. The fact that the second applicant had lived with the first applicant since he had come to the Netherlands, was not sufficient to assume such dependency.

23.  The applicants reiterated that the authorities had failed to undertake an assessment under Article 8 in the asylum-related family reunification proceedings (see paragraphs 6 above) when the second applicant had been a minor and unmarried.

24.  The applicants further maintained their position that the second applicant had been a young adult for the purposes of the domestic young adult policy, reiterating the arguments they had raised during the domestic proceedings (see paragraph 10 above) with regard to the significance, or lack thereof, of the second applicant’s – in their view – unlawful marriage. They submitted that it had thus not been necessary for them to demonstrate additional elements of dependence.

25.  The applicants argued that there existed additional ties of dependency between them because they had lived together since 2015. Further, in reply to the Government’s observations to the Court, they noted that the first applicant had always taken care of the second applicant financially and continued to do so now. The second applicant in turn had supported the first applicant, who had suffered post-traumatic stress complaints as a result of which she had been exempted, in 2015, from the Dutch civic integration exam and from the obligation to work. They alleged that this support could not be given by another of the first applicant’s two sons because one of those sons had a post-traumatic stress disorder and was already being cared for by the other son.

   The Court’s assessment     General principles

26.  The Court refers to the general principles regarding family life between adult family members as set out in its judgment in the case of Martinez Alvarado v. the Netherlands (no. 4470/21, §§ 35-45, 10 December 2024). It reiterates that family life for the purpose of Article 8 of the Convention is normally limited to the core family (see Slivenko v. Latvia [GC], no. 48321/99, §§ 94 and 97, ECHR 2003-X) and that there will be no family life between parents and adult children or adult siblings unless they can demonstrate “additional elements of dependence, involving more than the normal emotional ties” (see Martinez Alvarado, cited above, § 36 and further case-law references mentioned therein). This interpretation originates from the context of family reunification and has been followed in other contexts. In the context of the expulsion of settled migrants, the Court has made an exception for young adults who are still living with their parents and have not yet started a family of their own (see Advisory opinion on the procedural status and rights of a biological parent in proceedings for the adoption of an adult [GC], request no. P16-2022-001, Supreme Court of Finland, § 50, 13 April 2023). In that particular situation, “dependency” is assumed (see Martinez Alvarado, cited above, § 37 and further case-law references mentioned therein).

27.  It follows from the Court’s case-law that the question whether “additional elements of dependency” exist is to be decided on a case‑by-case basis. Such dependency may arise where adults have a physical or mental disability or illness of sufficient seriousness and are in need of constant care and support from other family members (see, for instance, Emonet and Others v. Switzerland, no. 39051/03, § 37, 13 December 2007, in which an adult child became paraplegic after a serious illness; Bierski v. Poland, no. 46342/19, § 47, 20 October 2022, in which an adult child suffered from Down syndrome and was fully incapacitated; Belli and Arquier-Martinez v. Switzerland, no. 65550/13, § 65, 11 December 2018, in which an adult child had been deaf since birth, had difficulty speaking her mother tongue and had no capacity of discernment on account of a severe disability which had required comprehensive therapeutic provision throughout her life; and I.M. v. Switzerland, no. 23887/16, §§ 30‑31, 9 April 2019, in which an elderly father was completely dependent on his sons because he suffered from serious depression and autism).

28.  The Court’s case-law further reveals that financial dependence or other case-specific circumstances such as, for instance, the fact that the person with whom ties were claimed was the only surviving relation or the presence of family members who can provide care – or other viable alternatives – in the country of origin or where the person requiring care and support lives, may be of relevance in this assessment (see Martinez Alvarado, cited above, §§ 41-43). Financial dependency on its own has never been considered sufficient to constitute additional ties of dependency, and accordingly family life between adult family members (ibid., § 42). A finding of the existence of “family life” based on “additional elements of dependency” will often be the result of a combination of elements.

29.  The assessment of whether “additional elements of dependency, other than normal emotional ties”, have been shown to exist, requires an individualised review of the relationship at issue, and other relevant circumstances of the case (ibid. § 44).

30.  Finally, the Court will assess the question whether a relationship between adult family members constitutes “family life” within the meaning of Article 8 on the basis of the facts occurring prior to the date that the decision regarding the request for family reunification became final (ibid. § 45).

     Application of these principles to the present case

31.  At the outset, the Court notes that the authorities’ rejection of the second applicant’s request for asylum-related family reunification proceedings became final in 2013 (see paragraphs 5-7 above). Complaints regarding alleged shortcomings in breach of the Convention in these proceedings were not submitted to the Court within the time-limit of six months (that being the time-limit for lodging applications which applied under Article 35 § 1 of the Convention prior to the entry into force of Article 4 of Protocol No. 15 to the Convention) of the decision becoming final in the Netherlands (even assuming that domestic remedies were exhausted in respect of those complaints). The Court is thus precluded from considering the applicants’ arguments in so far as they relate to those previous proceedings.

32.  Further, it follows from the Court’s case-law that there will be no family life between parents and adult children or adult siblings within the meaning of Article 8 unless additional elements of dependency have been shown to exist. In the context of the expulsion of settled migrants, the Court has made an exception for young adults who were still living with their parents and had not yet started a family of their own, in which particular situation “dependency” is assumed (see paragraph 26 above).

33.  There is thus no positive obligation emanating from Article 8 of the Convention that requires the Contracting States to enact in the context of family reunification specific rules concerning family life between young adults and their parents.

34.  Where a State has gone beyond its obligations in creating further rights or a more favourable position – a possibility open to it under Article 53 of the Convention – by enacting specific legislation (see, mutatis mutandis, Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, § 34, 16 February 2016), the Court cannot be compelled to apply such legislation in cases it is called on to adjudicate. It is the national courts’ task – not that of the Court – to assess whether the domestic “young adult policy” applicable in the Netherlands was correctly applied and thus whether a person qualified as a young adult for the purposes of that policy. This means that the Court will not examine whether the domestic authorities rightly relied on the second applicant’s marriage to exclude him from the domestic young adult policy. Rather, the Court must determine whether the relationship between the applicants amounted to “family life” within the autonomous meaning of Article 8 of the Convention, thus falling within the scope of that provision.

35.  It is not in dispute that the case thus concerns a relationship between adults. In the light of that fact, the Court must determine on the basis of its case-law (see paragraphs 26 above) whether “additional elements of dependency, other than the normal emotional ties”, have been demonstrated.

36.  The Court notes that cohabitation, which the applicants relied on, is relevant but not to a degree that it is sufficient as such to constitute additional ties of dependency between adult family members. Simply living together does not imply dependency. Further, no argument has been made that the second applicant depends on the first applicant for medical reasons. The first applicant’s alleged health issues were not presented at any time during the domestic proceedings – even though they must have already been present at that time – and can thus not be relied on before the Court in the present application.

37.  As regards financial dependency, the Court notes that there is no evidence in the casefile that the second applicant was financially dependent on the first applicant before his arrival in the Netherlands. The Court further notes that the second applicant may be financially dependent on the first applicant since the former arrived in the Netherlands in 2015 because he is not allowed to work due to his irregular status. However, financial dependency on its own has never been considered sufficient to constitute additional ties of dependency and accordingly family life between adult family members (see Martinez Alvarado, cited above, § 42). No other case‑specific elements demonstrating dependence in the above-mentioned sense have been submitted by the applicants. The Court notes that, as a result of the domestic authorities’ decisions, his two adult brothers were granted a residence permit for the purpose of family reunification with their mother at some point in time, while the second applicant was not. However, this fact cannot be regarded to impact on the relationship of dependency between the applicants.

38.  On the basis of the foregoing specific facts and circumstances of the case, the Court concludes that additional elements of dependency, involving more than the normal emotional ties between the applicants, have not been shown to exist. In view of this, the Court finds that their relationship did not constitute “family life” within the autonomous meaning of Article 8 of the Convention.

39.  Accordingly, the application must be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 April 2026.

 

 Hasan Bakırcı Lado Chanturia
 Registrar President

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