AS TO THE ADMISSIBILITY OF
Application No. 13654/88
by R.
against the Netherlands
The European Commission of Human Rights sitting in private
on 8 September 1988, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 January 1988
by R. against the Netherlands and registered on 9 March 1988 under
file No. 13654/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts as presented by the applicants may be summarised as
follows.
The applicants are sisters of Moroccan nationality, born in
Morocco on 17 December 1964 and 27 April 1966 respectively. Since
1987 they have been employed by office-cleaning firms in the
Netherlands. Before the Commission they are represented by
Mr. S. LAND, a lawyer practising in Amsterdam.
On 1 February 1968 the applicants' parents divorced. The
mother was awarded custody of the two children. They have no contact
with the father. After the divorce the mother and the applicants went
to live with the applicants' maternal grandmother in Morocco.
In 1976 the mother went to the Netherlands and married for a
second, and subsequently for a third, time. On 17 July 1985 she was
granted a permanent residence permit, independent of that of her
husband.
The applicants remained with their grandmother in Morocco.
The mother made visits almost every year, usually for at least two
months. She paid for their food and schooling, brought clothes for
them from the Netherlands, and received a Dutch family allowance on
the basis of her daughters' dependence.
The first applicant arrived in the Netherlands in September 1984
and the second in November 1985. They were both nineteen years old
when they arrived. They requested a residence permit on grounds of
family reunification on 14 November 1984 and 18 December 1985
respectively. Both requests were refused on 8 April 1987. Their
requests for a review were denied on 11 August 1987.
Thereupon they appealed to the Council of State (Raad van
State). The Deputy Minister of Justice denied suspensive effect to
these proceedings on 10 September 1987. The applicants instituted
summary proceedings with the President of the Regional Court
(Arrondissementsrechtbank) of Amsterdam, requesting suspensive effect
for the proceedings before the Council of State. This was denied on
5 November 1987. An appeal to the Court of Appeal (Gerechtshof) is
pending but has no suspensive effect.
The applicants are now apparently in hiding in the Netherlands
to avoid expulsion to Morocco. Their grandmother is seriously ill and
no longer able to care for them. Their other relatives in Morocco are
poor and have many children of their own.
COMPLAINT
The applicants complain that they went to the Netherlands to
rejoin their mother. They maintain that their right to a family life
will be violated by the Netherlands if they are expelled. They state
that in Morocco it is impossible for two young girls to live on their
own, and that their relatives cannot take care of them, nor can their
mother return to Morocco.
They invoke Article 8 para. 1 of the Convention and submit that
the interference with their family life is not justified by paragraph 2
of Article 8.
THE LAW
The applicants have complained that by expelling them to
Morocco, the Netherlands will be interfering with their family life.
They have invoked Article 8 (Art. 8) of the Convention. This article
provides as follows:
"1. Everyone has the right to respect for his private
life, his home and his correspondence.
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
interest 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."
The Commission recalls that the Convention does not guarantee
a right to enter or reside in a particular country. However, the
Commission has also held that, in view of the right to respect for
family life ensured by Article 8 (Art. 8) of the Convention, the
exclusion of a person from a country in which his close relatives
reside may raise an issue under this provision of the Convention (cf.
e.g. No. 7816/79, Dec. 19.5.77, D.R. 9 p. 219 and No. 8245/78, Dec.
6.5.81, D.R. 24 p. 98).
In such cases, the Commission first examines whether such a
degree of dependency exists between the applicant and his relatives as
to give rise to the protection envisaged by Article 8 (Art. 8) of the
Convention (cf. Nos. 9214/80, 9473/81, 9474/81, Dec. 11.5.82, D.R. 29
p. 176).
The Commission notes that the applicants lived with their
mother until 1976. Their mother made frequent and long visits to them
in Morocco and paid for their upbringing and schooling, for which she
received a Dutch family allowance. They have been living with their
mother again since 1984 and 1985 respectively.
In these circumstances the Commission is satisfied that there
is family life between the applicants and their mother, within the
meaning of Article 8 para. 1 (Art. 8-1) of the Convention.
Consequently, the applicants' intended expulsion must be considered as
an interference with their right to respect for family life.
The question which remains to be examined is whether this
interference was justified under the second paragraph of Article 8
(Art. 8) of the Convention.
The Commission notes that the decision to refuse the applicants
a residence permit was taken on the basis of Dutch immigration policy
which lays down special conditions for the granting of residence
permits on the grounds of family reunification.
The Commission notes that the Dutch immigration policy
establishes these special conditions for the purpose of regulating the
labour market, and generally to restrict immigration into a densely
populated country. Thus, the legitimate aim pursued is the
preservation of the country's economic well-being, within the meaning
of paragraph 2 of Article 8 (Art. 8-2) of the Convention (see Eur.
Court H.R., Berrehab judgment of 21 June 1988, to be published in
Series A no. 138, para. 26).
Regarding the necessity of the interference in a democratic
society the Commission recalls that attention must be paid to the
proportionality between the seriousness of the interference and the
legitimate aim pursued (see above-mentioned Berrehab judgment, para.
29).
In the present case the applicants had lived in Morocco until
they were nineteen years old. They did not live with their mother
for eight and nine years, respectively, and did not follow her when
she left Morocco. They are at present twenty-two and twenty-three
years old and have relatives in Morocco.
A special feature of the present case is the applicants'
assertion that they, for cultural reasons, will have difficulty in
living alone in Morocco since their grandmother is seriously ill and
can no longer take care of them. Despite this humanitarian aspect of
the case, the Commission considers that, in the circumstances and in
view of the applicants' age, respect for the applicants' family life
does not outweigh valid considerations relating to Dutch immigration
policy.
The Commission considers, therefore, that the interference
cannot be said to be disproportionate to the legitimate aim pursued and
is justified as necessary in a democratic society within the meaning
of Article 8 para. 2 (Art. 8-2) of the Convention.
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)