AS TO THE ADMISSIBILITY OF
Application No. 26669/95
by Edgardo TY
against the Netherlands
The European Commission of Human Rights sitting in private on
21 October 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mr. H.C. KRÜGER, 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 29 April 1994 by
Edgardo TY against the Netherlands and registered on 8 March 1995 under
file No. 26669/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1955, is a Philippine national. He is
registered at his brother's address in Amsterdam. Before the Commission
he is represented by Mr. P. Boeles, a lawyer practising in Amsterdam,
the Netherlands.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
A. Particular circumstances of the case
The applicant has been registered at his brother's address in
Amsterdam since 14 September 1987.
On 1 July 1988 he requested a residence permit "for the purpose
of work" (on the mainland).
The head of the Amsterdam police refused this application on the
same day, stating that granting him such a permit would be contrary to
the public interest.
On 7 July 1988 the applicant requested the State Secretary for
Justice (Staatssecretaris van Justitie) to review the decision of the
head of police.
Pending the review proceedings, the applicant commenced
employment with Universal Ogden Services B.V. From 1 April 1991 he has
been working as a steward on board a drilling rig in the Dutch sector
of the North Sea.
On 24 July 1991 the State Secretary for Justice rejected the
applicant's request for review. The State Secretary recalled that
pursuant to Section 11 para. 5 of the Aliens Act (Vreemdelingenwet) the
granting of a residence permit could be refused on grounds of public
interest, whereas the Dutch authorities in applying Section 11 para. 5
of the Aliens Act followed a restrictive policy in view of the
situation as regards the population and employment in the Netherlands.
Furthermore, the State Secretary recalled that pursuant to the
Aliens Circular 1982 (Vreemdelingencirculaire) a foreigner working on
board a drilling rig in the Dutch sector of the continental shelf does
not need a residence permit or a work permit. This implies that he is
able to work on a drilling rig without having to fulfil the conditions
attached to the granting of a residence permit. Moreover, such a
foreigner is allowed to reside on the mainland without a residence
permit during his periods of leave.
The State Secretary finally recalled that only when a foreigner
working on board a drilling rig meets certain specific requirements,
will he be eligible for a residence permit. It was held that in the
present case the applicant fulfilled neither the regular conditions for
obtaining a residence permit, nor the special requirements for
foreigners working on board drilling rigs in the Dutch sector of the
continental shelf.
On 25 July 1991 the applicant filed an appeal with the Judicial
Division (Afdeling rechtspraak) of the Council of State (Raad van
State).
At the request of the Judicial Division of the Council of State,
the State Secretary for Justice submitted written observations on
21 February 1992.
In reply, the applicant submitted further observations on
28 September 1992. He explained that from 1989 he had had a
relationship with Miss H.G.L., a Philippine national, and that they
intended to marry. However, his wife would only be allowed to reside
in the Netherlands after a residence permit had been issued to him. The
applicant further alleged that Dutch policy concerning family
reunification made an unjustified distinction between foreigners who
work on board a drilling rig in the Dutch sector of the continental
shelf and foreigners who work on the Dutch mainland. In this respect
the applicant stressed in particular that foreigners working offshore
need to have worked for seven years before becoming eligible for a
residence permit "for the purpose of family reunification", whereas
there is no waiting period for foreigners working on the mainland to
be reunited with their families. In the applicant's view this
distinction was not objective or reasonable, and was not proportionate
to any legitimate aim which the Dutch Government may have pursued. He
invoked Article 8 in conjunction with Article 14 of the Convention.
The Judicial Division of the Council of State dismissed his
appeal on 2 November 1993. It recalled in the first place that, under
international law, the State has no obligations to apply Dutch aliens
law to drilling rigs in the Dutch sector of the continental shelf in
exactly the same manner as on the mainland.
Furthermore, the Judicial Division of the Council of State
considered the different conditions laid down in Section B 11.6.4 of
the Aliens Circular 1982 not to be unreasonable. It held that contrary
to foreigners working on board drilling rigs in the Dutch sector of the
continental shelf, foreigners working on the mainland had to obtain a
residence permit "for the purpose of work". In order to obtain such a
permit, it would first have to be established whether the presence in
the Netherlands of such a foreigner serves an essential national
interest. Only after having obtained a residence permit on these
grounds would foreigners working on the mainland become eligible for
family reunification without any further conditions having to be
fulfilled.
The Judicial Division of the Council of State held that, since
the applicant had benefited from the more advantageous policy
concerning access to the labour market on board drilling rigs in the
Dutch sector of the continental shelf where the requirement of
"essential national interest" does not apply, there was no reason to
assume that the State Secretary for Justice had violated the Convention
by applying a less advantageous policy concerning the eligibility for
a residence permit "for the purpose of family reunification".
On 24 August 1994 the applicant and Miss H.G.L. were married.
B. Relevant domestic law
In general, an application for a residence permit in the
Netherlands is granted only if the individual's presence serves an
essential national interest or if there are compelling reasons of a
humanitarian nature (klemmende redenen van humanitaire aard).
An "essential national interest" is considered to exist where a
foreigner will be employed in a sector where there is not a sufficient
number of capable people available on the labour market to fill all
vacancies. To establish whether this is the case, regard is only had
to the number of registered unemployed people enjoying priority
(prioriteit genietend aanbod). For example, on the Dutch labour market
European Union citizens have priority over most other foreigners.
Pursuant to Section B 11.6.4.1 of the Aliens Circular 1982, the
general aliens policy is not applicable to foreigners who work on
ships, drilling rigs or in the international road transport business,
since they perform their professional activities wholly or mainly
outside the Dutch mainland. In other words, working in the above-
mentioned sectors is considered as operating on the "international
labour market". Therefore, this category of foreigners is, in
principle, not eligible for a residence permit in the Netherlands.
However, there are specific rules for, inter alia, family
reunification.
Pursuant to Section B 11.6.4.3 of the Aliens Circular 1982, a
foreigner working on board a drilling rig in the Dutch sector of the
continental shelf who aims at family reunification in the Netherlands,
should be in possession of a residence permit himself.
He qualifies for a residence permit "for the purpose of family
reunification" under the following conditions:
- the foreigner has worked on the rig for seven years;
- the foreigner has suitable housing for his family at his
disposal; and
- the foreigner is certain of employment for at least another
year.
Such residence permit will be granted to the foreigner under the
restriction: "for the purpose of work as employee on board a drilling
rig in the Dutch sector of the continental shelf".
COMPLAINT
The applicant complains under Article 14 in conjunction with
Article 8 of the Convention of an unjustified difference in treatment
concerning the eligibility for family reunification between foreigners
who work on board drilling rigs in the Dutch sector of the continental
shelf and foreigners who work on the Dutch mainland.
THE LAW
The applicant contends that the difference in treatment enacted
in provisions of Dutch aliens law between various categories of
foreigners amounts to discrimination contrary to Article 14, taken in
conjunction with Article 8 (Art. 14+8), of the Convention.
Article 14 (Art. 14) of the Convention reads:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
Article 8 (Art. 8), insofar as relevant, reads:
"1. Everyone has the right to respect for his private and
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."
The Commission recalls that according to the Convention organs'
established case-law, Article 14 (Art. 14) complements the other
substantive provisions of the Convention and the Protocols. It has no
independent existence since it has effect solely in relation to "the
enjoyment of the rights and freedoms" safeguarded by those provisions.
Although the application of Article 14 (Art. 14) does not necessarily
presuppose a breach of those provisions - and to this extent it is
autonomous -, there can be no room for its application unless the facts
at issue fall within the ambit of one or more of the latter (cf. Eur.
Court HR, Abdulaziz, Cabales and Balkandali v. United Kingdom judgment
of 28 May 1985, Series A no. 94, p. 35, para. 71).
The Commission further recalls that according to the case-law of
the Convention organs, the duty imposed on Contracting States by
Article 8 (Art. 8) cannot be considered as extending to a general
obligation on the part of a Contracting State to respect the choice by
married couples of the country of their matrimonial residence (cf.
Abdulaziz, Cabales and Balkandali judgment, loc. cit., p. 34, para.
68). However, the Commission finds that the present case falls within
the ambit of Article 8 (Art. 8) of the Convention since it concerns the
applicant's family life. Accordingly, Article 14 (Art. 14) is
applicable to the present case.
The Commission points out that Article 14 (Art. 14) safeguards
individuals, placed in analogous situations, from discrimination. A
difference in treatment is discriminatory if it "has no objective and
reasonable justification", that is, if it does not pursue a "legitimate
aim" or if there is not a "reasonable relationship of proportionality
between the means employed and the aim sought to be realised" (see,
inter alia, Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979,
Series A no. 31, p. 16, para. 33; Eur. Court HR, Rasmussen v. Denmark
judgment of 28 November 1984, Series A no. 87, p. 14, para. 38; and
Abdulaziz, Cabales and Balkandali judgment, loc. cit., p. 35, para.
72).
In the present case, the Commission notes that under Dutch
immigration law, foreigners who work on board drilling rigs in the
Dutch sector of the continental shelf are subject, in respect of
matters concerning family reunification, to less favourable treatment
than foreigners who work on the Dutch mainland.
The Commission considers, however, that under Dutch law
fundamental differences between these two categories of foreigners also
exist in respect of legal status and conditions for entry.
The Commission notes that under Dutch law a foreigner employed
on the mainland is considered to operate on the Dutch labour market.
The conditions to be fulfilled in order to become eligible for a
residence permit which gives access to this labour market are strict
since such a permit is only granted if it is found that the presence
in the Netherlands of a particular foreigner serves an essential
national interest. This is only considered to be the case where a
foreigner will be employed in a sector where the number of capable
people available on the Dutch or European Union labour markets is not
sufficient to fill all vacancies. A foreigner employed on a drilling
rig in the Dutch sector of the continental shelf, on the other hand,
is considered to operate on the international labour market. Access to
this market does not require the fulfilment of any conditions since
under Dutch law this foreigner does not need a residence permit in
order to be able to spend his leave in the Netherlands.
The Commission considers, therefore, that the two categories of
foreigners involved are not placed in analogous situations, each
category being characterised by a corpus of rights and obligations of
which it would be artificial to isolate one specific aspect.
Consequently, the Commission cannot find that the difference in
treatment complained of is discriminatory within the meaning of Article
14 of the Convention in conjunction with Article 8 (Art. 14+8).
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy