THIRD SECTION
DECISION
Application no. 1859/03
Mehmet OLGUN
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 10 May 2012 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 16 January 2003,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mehmet Olgun, is a Turkish national who was born in 1971 and, as far as the Court is aware, now lives in Turkey. He was represented by Mr C.A. Madern, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Ms J. Schukking, and their Deputy Agent, Ms L. Egmond, of the Ministry for Foreign Affairs.
2. The Turkish Government, informed by the Registrar of their right under Article 36 § 1 of the Convention to take part in the proceedings, did not elect to do so.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant first came to the Netherlands in September 1988. He had been issued a visa, valid for one month, enabling him to visit relatives. It is not clear how long he stayed in the Netherlands.
5. In October 1991 the applicant married Ms Ö., a Turkish national, in Turkey. The couple subsequently returned to the Netherlands, apparently without a visa, where they resided illegally. A son, E., was born to them on 16 July 1992. They lived together as a family for some eighteen months before the spouses separated in 1994. The applicant had access to his son and would meet with him at his brother’s house. Divorce proceedings in Turkey were started in 1995, resulting in the divorce being pronounced on 15 July 1997. Ms Ö. was given parental authority over E., with the applicant being granted access to his son every first Sunday of the month and every first day of national and religious holidays.
6. Meanwhile, in 1996, the applicant had returned to Turkey to do his military service. Between 1996 and 1998, E. visited Turkey during holidays, staying for a while with the applicant’s parents as well as with the applicant himself. In March 1998 the applicant returned to the Netherlands on a short-stay visa to visit relatives, but he overstayed. He saw his son a few times at his brother’s house. The applicant states that Ms Ö. thwarted the access arrangement as much as possible.
7. Ms Ö. was granted a residence permit on an unknown date.
8. On 27 March 2000 the juvenile judge (kinderrechter) of the Amsterdam Regional Court (arrondissementsrechtbank) issued a supervision order (ondertoezichtstelling), valid for one year, in respect of the applicant’s son E. and the latter’s half-sister (a child born of a previous relationship of the applicant’s ex-wife). This decision resulted from an investigation carried out by the Child Care and Protection Board (Raad voor de Kinderbescherming), which had found that E. and his half-sister were being ill-treated, that their mother had limited pedagogical abilities and that she would often leave the children on their own. The Amsterdam Youth Care Office (Bureau Jeugdzorg) was appointed as the family-supervision institution (gezinsvoogdij-instelling).
9. On 26 January 2001 the applicant applied for a residence permit on the basis of a temporary regulation on the legalisation of illegal aliens who had been residing in the Netherlands for a long period of time (Tijdelijke regeling witte illegalen). He indicated that he had regular contacts with his son, which it would be practically impossible to maintain from Turkey, and that there thus existed compelling reasons of a humanitarian nature militating in favour of the grant of a residence permit. As the legalisation regulation only applied to requests which had been lodged between 1 October and 1 December 1999, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s request on 16 March 2001. The Deputy Minister further considered that there were no indications that the applicant ought to be allowed to reside in the Netherlands for reasons of a humanitarian nature.
10. In a report of February 2001 compiled by the Youth Care Office and enclosed with their request to the juvenile judge for an extension of the supervision order, the applicant is mentioned as being E.’s biological father who is residing illegally in the Netherlands at an unknown address. On 19 March 2001 the supervision order was extended for a further year. In addition, on 29 March 2001 the juvenile judge ordered E. and his half-sister urgently to be taken into care (spoeduithuisplaatsing) as it had been found that they were suffering serious neglect and abuse at home. They were accommodated in a foster home. This measure was confirmed on 9 April 2001 and prolonged until 9 July 2001.
11. Meanwhile, in his objection (bezwaar) of 12 April 2001 against the decision refusing him a residence permit, supplemented by an additional document dated 1 May 2001, the applicant argued, inter alia, that his ex-wife was unable to look after their son by herself so that it was in E.’s interests that the applicant also assist in his upbringing – and, therefore, that the applicant reside in the Netherlands.
12. On 22 May 2001 the Deputy Minister dismissed the objection, finding that Article 8 of the Convention did not impose a positive obligation on the Netherlands to grant the applicant a residence permit. In this context the Deputy Minister considered that the applicant had not substantiated his claim that his ex-wife was unable to bring up their son by herself. Moreover, it had not appeared that any impediment existed to the exercise of family life abroad.
13. The applicant appealed this decision to the Regional Court of The Hague, sitting in Utrecht, and also applied to that court for an injunction in order to stay his expulsion.
14. In a report evaluating the course of the supervision order, drawn up by the Youth Care Office and submitted with a request by that Office of 29 January 2002 for an extension of the order, it is stated that the applicant had expressed the wish to see his son more often. Neither Ms Ö. nor E. was very taken with that idea. An access arrangement had nevertheless been agreed, but this did not appear to work in practice.
15. In additional grounds of 12 February 2002 for his appeal to the Regional Court of The Hague, sitting in Utrecht, in the aliens-law proceedings, the applicant argued that an investigation was being carried out into the question whether it would be better for E. if his father were made responsible for his care and upbringing. The applicant claimed that he was willing and able to do so, and that he had even applied for an amendment of the parental authority situation. The applicant further submitted that his son would have no possibility of maintaining the relationship with his father if the latter was not in the Netherlands. In that case, E. would have to stay with his mother or, as had been suggested by the family supervisor (gezinsvoogd), be placed away from his mother and be accommodated in a foster family.
16. At a hearing on 25 March 2002 before the juvenile judge concerning the request for an extension of the supervision order relating to E., the applicant stated that at the previous hearing the judge had said that it should be investigated whether or not it would be better for E. to live with his father, but no such investigation had taken place. An investigation into the feasibility of an access arrangement, also ordered, had not taken place either. The applicant announced that a change in the parental authority situation would be sought if the family supervisor failed to carry out the investigation into the possibility of E. living with him. At the hearing the family supervisor admitted that he had not yet done much about the request for an access arrangement as he had been concentrating on the situation of E.’s half-sister.
17. In a decision of 25 March 2002 the juvenile judge extended the supervision order and also ordered the starting-up of an access arrangement and an investigation into the possibility of E. living with his father.
18. The applicant subsequently informed the Utrecht Regional Court, where his appeal was pending in the proceedings relating to his request for a residence permit, that the juvenile judge had instructed the Youth Care Office to investigate whether he should be invested with parental authority over his son and whether his son should live with him.
19. The hearing in these appeal proceedings took place before the Utrecht Regional Court on 12 July 2002. The applicant submitted inter alia that an investigation, ordered by the Amsterdam juvenile judge, was currently pending into the question whether E. should be brought up by his father and whether parental authority over E. ought to be awarded to him. Furthermore, it was plain to see that there were obstacles to the applicant developing family life with his son in Turkey: there was a supervision order in place, issued by a Netherlands court, and parental authority still remained with E.’s mother – the applicant was thus not free to take his son with him.
20. Since the Youth Care Office had still not carried out the investigation ordered by the juvenile judge, the applicant submitted a petition to the Amsterdam Regional Court on 16 July 2002 in which he requested to be granted sole parental authority over E. and to be entrusted with E.’s upbringing. The applicant argued that E. had indicated that he wanted to see his father more often and even wanted to live with him, but that his mother did not agree to this.
21. On 18 July 2002 the Utrecht Regional Court rejected the appeal as well as the request for an injunction in the proceedings relating to the applicant’s request for a residence permit. It considered that the Deputy Secretary had been correct in attaching greater weight to the interests of the community as a whole than to those of the individual. In this context the Regional Court took into account that the applicant had only submitted a decision of the juvenile judge extending the supervision order, but no documents showing that he had lodged a request for parental authority. The applicant had furthermore not submitted proof of the existence of an access arrangement; it was unclear where the child was staying; and the applicant had not demonstrated that there were any objective impediments to family life between himself and his son being pursued in a different manner. The Regional Court noted that the applicant could keep in contact with his son by telephone or letters. No further appeal lay against this decision.
22. The Youth Care Office subsequently decided that, for the time being at least, it would not be in E.’s best interests for him to go and live with his father. Although E.’s situation with his mother was not ideal, it was not so alarming that he urgently required to be placed away from her. In addition, a placement with his father – to which neither E. nor his mother consented –would confront E. with a serious conflict of loyalties. For those reasons, the Youth Care Office did not consider it opportune to examine the applicant’s situation. The Youth Care Office informed the applicant of its position on 21 October 2002. It had further agreed with E. that he would see his father every first Sunday of the month.
23. On 18 December 2002 the Amsterdam Regional Court refused the applicant’s request to be awarded sole parental authority. The court agreed with the Youth Care Office that at the present time it was not in E.’s best interests for the applicant to be invested with parental authority. The applicant lodged an appeal against this decision, submitting that the supervision order had been in place for a number of years without E.’s situation having undergone any real improvement.
24. The applicant left the Netherlands in December 2002 and, as far as the Court is aware, has resided in Turkey ever since.
25. Following a hearing on 20 August 2003, the Amsterdam Court of Appeal (gerechtshof) ordered the Child Care and Protection Board to investigate, before 25 January 2004, the applicant’s background and the possibility of parental authority being granted to him.
26. In a decision of 17 June 2004, the Court of Appeal rejected the appeal. It had regard to the report issued by the Child Care and Protection Board on 4 March 2004, from which it appeared that the applicant had not been involved in the Board’s investigation as he was residing in Turkey and was unable to come to the Netherlands due to the fact that his visa applications kept being refused. The Board had, however, contacted a brother of the applicant’s and the former’s spouse, according to whom E. had had irregular contacts with his father in the past years. The Board noted that, if parental authority was awarded to the applicant, this would mean that E., who had been born and bred in the Netherlands, who did not speak Turkish and who did not want to go to Turkey, would have to move to Turkey at the age of eleven. The Board considered that this would not be in E.’s best interests, even though it was true that the situation in which he was being raised had not been ideal in recent years. The Court of Appeal agreed with the Board’s assessment, adding that it had not been made clear in what way the applicant would wish to exercise his parental authority. While it understood the applicant’s concerns, the court also took into account that E.’s health and performance at school had in the meantime improved and that the supervision order was also expected to have a positive effect.
27. The applicant did not lodge an appeal on points of law with the Supreme Court (Hoge Raad) against this decision.
B. Relevant domestic law and practice
28. Domestic law and practice relevant to the present case are set out in Benamar v. the Netherlands (dec.), no. 43786/04, 5 April 2005.
COMPLAINT
29. The applicant complained that as a result of the refusal to allow him to reside in the Netherlands it would be impossible for him to have access to, and thus “family life” with, his son. Nor would he be able to exert any influence over his son’s upbringing from Turkey, even though, with a supervision order having been in place for a number of years, it was obvious that his son’s mother was not capable of raising the boy by herself.
THE LAW
30. The applicant alleged a violation of Article 8 of the Convention 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.”
31. The Government disputed this.
A. The Government’s preliminary objection
32. The Government argued that the applicant had failed to exhaust domestic remedies. As he had only lodged his request for sole parental authority on 16 July 2002, i.e. well after the hearing before the Regional Court of The Hague, sitting in Utrecht, in the proceedings on his request for a residence permit (which had taken place on 12 July 2002), the subsequent family-law proceedings relating to parental authority – which involved a court-ordered investigation by the Child Care and Protection Board – had not been initiated by the applicant until the substantive component of the aliens-law proceedings had been completed. Although the Government conceded that in the additional grounds for his appeal of 12 February 2002 (see paragraph 17 above), the applicant had stated that he had applied for parental responsibility, he had not – either in the domestic proceedings or before this Court – submitted an application for parental responsibility predating those grounds of appeal. In its decision of 18 July 2002 – the “final decision” within the meaning of Article 35 § 1 of the Convention for the purposes of the present proceedings –, the Regional Court had thus been unable to take the parental authority proceedings into account. The Government submitted that if the applicant were of the view that the parental authority proceedings were relevant to the question whether he should be eligible for a residence permit, he was free to make a fresh application for such a permit; these circumstances could not, however, play any role in the current proceedings before the Court.
33. The applicant replied that he had stated his wish to maintain contact with his son and take his share of the responsibility of the latter’s upbringing already at the objection stage (see paragraph 13 above).
34. The Court observes that the application is directed not against the refusal to transfer sole parental authority to the applicant, but against the refusal of residence rights which would, among other things, have enabled him to exercise family life with his son E. in the Netherlands. It follows that the Government’s preliminary objection is not germane to the applicant’s complaint before the Court and must be dismissed.
B. Whether the application is manifestly ill-founded
35. The applicant argued that the decision to deny him residence rights in the Netherlands failed to take into account the best interests of his son E. After all, E. remained in the Netherlands with his mother, the applicant’s ex-wife, who patently was unable to take proper care of him.
36. E., who had been born and raised in the Netherlands and who moreover was under supervision of the Netherlands child care authorities, could not be expected to settle with the applicant in Turkey. Nor was it sufficient for the applicant and E. to remain in touch by telephone or correspondence. In the circumstances, therefore, the interests of the applicant and his family ought to outweigh those of the Netherlands authorities in controlling immigration.
37. The applicant relied on the Court’s judgment in the case of Sen v. the Netherlands, no. 31465/96, 21 December 2001. Admittedly that case had concerned parents who had been granted residence rights in the Netherlands and a child forced to remain in Turkey, but that was a situation that mirrored the applicant’s.
38. The Government argued that the applicant had lived in a family setting with his son for only about eighteen months and, by his own admission, had returned to Turkey in 1996 when his son had been only four years old. He had been granted a one-month tourist visa in 1998, which he had outstayed; at all times subsequently, his stay in the Netherlands had lacked any legal basis.
39. Moreover, after returning to Turkey in 1996, the applicant’s contact with his son could hardly have been anything but sparse and irregular. It did not appear that the applicant had been closely involved in E.’s life or had contributed financially or factually to E.’s upbringing. He had only sought a transfer of parental authority to himself at a very late stage, in July 2002.
40. The applicant’s reference to the Sen judgment was, in the Government’s submission, inapposite, since in that case the parents had been legal residents in the Netherlands for some years; had two other children in the Netherlands, both of school age; and thus could not reasonably be expected to return to Turkey.
41. The Court notes at the outset that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligation inherent in effective “respect” for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. The Court does not find it necessary to determine whether in the present case the impugned decision constitutes an interference with the applicant’s exercise of the right to respect for his family life or is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation. In the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole. In any case, as noted above, the applicable principles regarding justification under Article 8 § 2 are broadly similar for both analytical approaches adopted (see, among other authorities and mutatis mutandis, S.H. and Others v. Austria [GC], no. 57813/00, § 88, 3 November 2011; see also, in the present context, Osman v. Denmark, no. 38058/09, § 53, 14 June 2011, with further references).
42. It is not in dispute that the decision complained of was “in accordance with the law”, as that expression is to be understood for purposes of Article 8 of the Convention, nor that it pursued a “legitimate aim”. It remains to be decided whether it was “necessary in a democratic society”.
43. As the Court has stated many times (see, as a recent example among many others, Osman v. Denmark, cited above, § 54), Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see, among other authorities, Gül v. Switzerland, 19 February 1996, § 38, Reports of Judgments and Decisions 1996‑I; and Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 39, ECHR 2006‑I). Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Rodrigues da Silva and Hoogkamer, cited above, ibid.; Ajayi and Others v. the United Kingdom (dec.), no. 27663/95, 22 June 1999; Solomon v. the Netherlands (dec.), no. 44328/98, 5 September 2000). Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious (see Jerry Olajide Sarumi v. the United Kingdom (dec.), no. 43279/98, 26 January 1999; Andrey Sheabashov v. Latvia (dec.), no. 50065/99, 22 May 1999). Where this is the case, the removal – the Court would add: or exclusion – of the non-national (or non-lawfully resident) family member would be incompatible with Article 8 only in exceptional circumstances (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 68, Series A no. 94; Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998; Ajayi and Others, cited above; and Rodrigues da Silva and Hoogkamer, cited above, ibid.)
44. The instant case hinges on the question whether the Netherlands authorities were under a duty to grant the applicant’s request for a residence permit for the purposes of maintaining the exercise of his family life with his son E. In order to establish the scope of the respondent State’s obligations, the facts of the case must be considered.
45. The Court does not ascribe the same importance as the Government to the limited nature of the contact existing between the applicant and E. after 1996. It must be remembered that the applicant returned to Turkey to perform his compulsory military service, and that after the applicant’s release from military service Ms Ö. failed to give her full co-operation.
46. It appears however that the applicant has not at any time been lawfully resident in the Netherlands. He seems to have entered the country for the first time in 1988, on a one-month visa.
47. The applicant married Ms Ö. in Turkey after returning there. He and his wife entered the Netherlands entirely without a visa; E. was born there in July 1992. All three were illegal residents at that time.
48. The applicant and Ms Ö. were divorced in Turkey. The applicant returned to that country in 1996 and remained there until he re-entered the Netherlands in 1998, this time on a one-month temporary visa which he outstayed.
49. The inescapable conclusion is that the present case is characterised by multiple breaches of immigration law and that the applicant has not at any time had family life in the Netherlands as a lawful resident. Nor is it apparent that the applicant was ever given any assurances that he would be granted a right of residence by the competent Netherlands authorities; he could therefore not at any time reasonably expect to be able to continue this family life in the Netherlands (cf. Useinov v. the Netherlands (dec.), no. 61292/00, 11 April 2006).
50. The Court must now consider whether exceptional circumstances required the applicant to be allowed to continue family life with E. in the Netherlands.
51. The fact, as stated by the applicant and apparent from the case file of the domestic proceedings, that Ms Ö. had great difficulty taking proper care of E. does not constitute “exceptional circumstances” in this regard. The respondent Party itself took direct responsibility in the matter by placing E. under the supervision of the domestic child care authorities. The personal involvement of a child’s parents in his or her upbringing is normally to be preferred to intervention by public authority, it is true; but there is nothing to suggest that the measure taken in the present case was inadequate to ensure E.’s well-being, still less that the applicant’s presence in the Netherlands was indispensable for that purpose.
52. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy