Communicated on 13 November 2014
THIRD SECTION
Application no. 25402/14
Hein PORMES
against the Netherlands
lodged on 27 March 2014
STATEMENT OF FACTS
THE FACTS[A1]
1. The applicant, Mr Hein Pormes, is an Indonesian national, who was born in 1987 and lives in Assen. He is represented before the Court by Mr B. van Dijk, a lawyer practising in Groningen.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. Following the death of his mother on 16 January 1991, the applicant entered the Netherlands on 13 April 1991, when he was almost four years old, on a tourist visa valid until 1 August 1991 and accompanied by his father, who was a Dutch national. His father subsequently frequently returned to Indonesia, leaving the applicant in the care of his uncle (the brother of his father) and aunt. At the end of 1991, the applicant moved to his other uncle (also a brother of his father) and aunt. His father died in Indonesia on 24 April 1999 and the applicant remained in the Netherlands, staying with the aunt and uncle he had moved to at the end of 1991. The applicant attended primary and secondary education and he graduated from pre-vocational secondary education (voorbereidend middelbaar beroepsonderwijs) in 2002/2003, but he left further education due to soft drugs abuse. He has never been in gainful employment.
4. On 13 August 2004 the applicant, suspected of having committed an assault on 5 February 2004, accepted an out-of-court settlement (transactie) and subsequently served ten hours’ community service. On 1 August 2006 he was convicted of indecent assault and four counts of attempted indecent assault, committed in September and October 2005, and he was sentenced to 240 hours’ community service, a 22-hour training order and a six-month suspended prison sentence, which prison sentence was served in 2008. On 27 June 2008 he was convicted of two counts of indecent assault and three counts of attempted indecent assault, committed in May, November and December 2007, and sentenced to a partially suspended prison term of 15 months.
5. Having become aware at the end of 2004 that he was staying in the Netherlands without a legal residence status, the applicant applied for a residence permit on 28 September 2006. This application was rejected by the Deputy Minister of Justice (Staatssecretaris van Justitie) on 18 December 2007. It was held inter alia that because of the nature and seriousness of his convictions, the applicant constituted a danger to public order. The applicant’s objection against this decision was rejected by the Deputy Minister on 17 July 2008. The applicant’s appeal against this decision was upheld by the Regional Court (rechtbank) of The Hague sitting in Zwolle on 30 January 2012, because it was held inter alia that the Deputy Minister had not made sufficiently clear in her decision why the balancing of interests had gone against the applicant. The further appeal against that decision lodged by the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; the successor to the Deputy Minister of Justice) was upheld by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State; hereafter: the Division), on 13 November 2013. It was held that, although the applicant had strong ties with the Netherlands (in view of his young age when he had entered the Netherlands and the period he had been staying in the Netherlands), Article 8 of the Convention did not impose a positive obligation on the State to grant him a residence permit. In this respect account was firstly taken of the nature and seriousness of the offences committed by the applicant, the fact that he was a repeat offender, the fact that he had been well aware that he did not hold a legal residence status at the time he had committed those offences, and that he had been an adult at that time. Secondly, the applicant, who had reached the age of majority, had not argued that there existed more than the normal emotional ties between him and his foster parents (his aunt and uncle to whom he had moved at the end of 1991). Thirdly, there were no objective obstacles for the applicant to practice his family life with his foster parents in Indonesia and, even though he had no family in Indonesia and did not speak the language, the Division considered that he should be able to fend for himself there in view of the fact that he was an adult.
6. On 5 February 2009 the applicant requested the Regional Court in civil proceedings to determine that as from his birth he had been in possession of Dutch nationality. This request was rejected on 14 February 2011 as it was held that it could not be determined that his father and mother were married on the day the applicant was born and therefore the applicant had not sufficiently demonstrated that at his birth he had obtained Dutch nationality because he descended from a Dutch father.
COMPLAINT
7. The applicant complained that in view of his long stay in the Netherlands, his social and cultural ties with the Netherlands and the lack of such ties with Indonesia, the refusal to allow him to reside in the Netherlands constituted a violation of his right to respect for his private and family life as guaranteed by Article 8 of the Convention.[A2]
QUESTION
Has there been a violation of the applicant’s right to respect for his private and/or family life contrary to Article 8 of the Convention?
[A1]ITMARKFactsComplaintsStart
PLEASE DO NOT REMOVE
[A2]ITMARKFactsComplaintsEnd
PLEASE DO NOT REMOVE
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