Information Note on the Court’s case-law 242
July 2020
Pormes v. the Netherlands - 25402/14
Judgment 28.7.2020 [Section IV]
Article 8
Expulsion
Article 8-1
Respect for private life
Denial of residence permit to alien unlawfully staying in host State from an early age, who became recidivist once adult and aware of precarious immigration status: no violation
Facts – The applicant was born in Indonesia in 1987 to a Dutch father and Indonesian mother. After his mother died, he travelled to the Netherlands on a short-term tourist visa when he was four years old. He lived there from then on, initially with his father and, after the latter’s death, with his foster parents. In 2004, when he was 17, the applicant became aware that he did not have Dutch nationality and was staying in the Netherlands unlawfully. He applied unsuccessfully for a residence permit. While the relevant proceedings were pending (between 2006 and 2013), he was convicted of indecent assault and attempted indecent assault several times. In 2016 the applicant left the Netherlands for Indonesia.
Law – Article 8: The relevant principles as well as the factors and considerations to be taken into account when examining whether Article 8 imposed a positive obligation on a State to allow an alien unlawfully residing in its territory a resident permit had so far mainly been formulated in cases that concerned family life or in which the Court had considered it appropriate to focus on that aspect. The Court found that similar considerations applied in respect of an alien who had established social ties amounting to private life in the territory of a State during a period of unlawful stay. The extent of the State’s positive obligations to admit such an alien would depend on the particular circumstances of the person concerned and the general interest. The Court had, moreover, identified a number of factors in its case‑law that were to be taken into account when assessing whether a State might be under a positive obligation to admit to its territory an alien whose stay in the country was unlawful, such as the extent to which family life was effectively ruptured, the extent of the ties in the Contracting State, whether there were insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there were factors of immigration control (e.g. a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion.
Those factors also applied – to the extent possible – to cases where it was more appropriate to focus on the aspect of private life. Equally, if an alien established a private life within a State at a time when he or she was aware that his or her immigration status was such that the continuation of that private life in that country would be precarious from the start, a refusal to admit him or her would amount to a breach of Article 8 in exceptional circumstances only.
The applicant had a private life in the Netherlands, he had lived there for twenty-five years, he had spoken Dutch fluently, and he had received all his schooling and spent most of his formative years there. He had taken part in everyday life in the same way as his Dutch-national contemporaries. Having regard to the specific circumstances of the present case (in particular, the lack of dependency between the applicant and his foster parents), the Court focused mainly on the aspect of “private life”.
When the applicant had started to build his ties with the Netherlands, he had been completely unaware that neither his presumed father nor his foster parents had taken steps to regularise his stay in the country. Having regard to his young age when he had arrived in the Netherlands and the other circumstances of the case, this could not be held against the applicant. Moreover, the applicant could not be identified with any omission on the part of his foster parents to ensure that his stay in the Netherlands had a lawful basis since, as Dutch nationals, their right of residence in the Netherlands had not been dependent on whether or not the applicant would be granted a residence permit, as had also been recognised by the authorities. Accordingly, the applicant qualified neither as a “settled migrant” nor as an “alien” who had to be aware of the precariousness of his immigration status from the outset. Consequently, as regards the balancing of interests at stake, it can neither be said that the refusal of a residence permit would require very serious reasons to be justified under Article 8 nor that it would violate that provision only in very exceptional circumstances. Instead, the assessment had to be carried out from a neutral starting point, taking into account the specific circumstances of the applicant’s case.
While the applicant had established very strong ties in the Netherlands, his ties to Indonesia had not been strong: he had apparently no actual family or social ties and had not spoken Indonesian. Given that the applicant could not be reproached for the unlawful character of his stay in the Netherlands and bearing in mind that he had established close ties with that country for a considerable period of time, if no other factors had entered into the equation, his interests in being allowed to reside in the Netherlands would have outweighed any interest of immigration control on the part of the State.
However, it could not be overlooked that the applicant, once adult and aware of his precarious residence status, had become a multiple recidivist.
Given the length of his residence in, and the strength of his ties with the Netherlands, the applicant’s relocation to Indonesia would have entailed a certain amount of hardship. Nevertheless, he had been a healthy adult man, and he would have been able to manage by himself in that country. The applicant had possessed a number of practical skills and he would have been able to adjust to Indonesian culture and to learn the language. Contacts with his foster family and others in the Netherlands might have been maintained through modern means of communication. And no exclusion order had been imposed on the applicant, which had left open the possibility that he might apply for a visa in order to make visits to the Netherlands.
In addition, every domestic decision-making body had had specific regard to the State’s obligations under Article 8. In the light of all of the above, and having regard in particular to the nature, seriousness and number of offences committed by the applicant, including at a time when he had known that his residence status in the Netherlands had been precarious, the domestic authorities had not attributed excessive weight to the general interest in the prevention of disorder or crime and had not overstepped the margin of appreciation afforded to them in the circumstances of the present case.
Conclusion: no violation (five votes to two).
(See also Boultif v. Switzerland, 54273/00, 2 August 2001, Information Note 33; Rodrigues da Silva and Hoogkamer v. the Netherlands, 50435/99, 31 January 2006, Information Note 82; Z. and T. v. the United Kingdom (dec.), 27034/05, 28 February 2006, Information Note 83; Üner v. the Netherlands [GC], 46410/99, 18 October 2006, Information Note 90; Maslov v. Austria [GC], 1638/03, 23 June 2008, Information Note 109; Osman v. Denmark, 38058/09, 14 June 2011, Information Note 142; A.A. v. the United Kingdom, 8000/08, 20 September 2011, Information Note 144; Jeunesse v. the Netherlands [GC], 12738/10, 3 October 2014, Information Note 178)
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This summary by the Registry does not bind the Court.
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