AS TO THE ADMISSIBILITY OF
Application No. 15723/89
by Mohamed ZARIOUHI and others
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 13 May 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 October 1989 by
Mohamed ZARIOUHI and others against the Netherlands and registered on
31 October 1989 under file No. 15723/89;
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 first applicant, Mohamed Zariouhi, is a naturalised Dutch
citizen, born in 1949 and is currently residing in Roermond, the
Netherlands. He is an unemployed mechanic. The other applicants,
Mohamed (born in 1967), Ibrahim (born in 1970), Hamid (born in 1972),
Benaïssa (born in 1974), Hakima (born in 1976), Aziz (born in 1980) and
Kamal (born in 1983) Zariouhi are his children from two previous
marriages. These children all have Moroccan citizenship and are all
currently residing in Zayo-nador, Morocco.
Before the Commission the applicants are represented by G. van
Buuren, a lawyer practising in Weert, the Netherlands.
The facts, as submitted by the applicants, may be summarised as
follows.
The first applicant came to the Netherlands in 1970. The first
applicant's children Mohamed, Ibrahim and Hamid were born out of the
first applicant's marriage with Fadila, whom he repudiated on 3
December 1973. Benaïssa, Hakima, Aziz and Kamal were born out of the
first applicant's marriage with Habiba, who died on 25 May 1983.
On 6 July 1983 the first applicant married Habiba's younger
sister Najima. Out of this marriage Hanan was born in 1984.
All the first applicant's children have been born in Morocco.
The second wife Habiba and her children Benaïssa, Hakima, Aziz and
Kamal, and since 1974 also the children of the applicant's first
marriage, Mohamed, Ibrahim and Hamid, lived with Habiba's parents in
Morocco. They have never resided in the Netherlands.
In the beginning of August 1986, the first applicant's wife
Najima and his children Hanan, Ibrahim, Hamid, Benaïssa, Hakima, Aziz
and Kamal came to the Netherlands on a Benelux tourist visa.
On 11 August 1986 their requests for a Dutch residence permit for
family reunification were rejected by the Head of the local police in
Roermond. Upon their requests for reconsideration to the Deputy
Minister of Justice, Najima and Hanan received a residence permit on
11 November 1986 on the basis of family reunification. The other
requests were rejected on the same day as they did not meet the
requirements for a residence permit for family reunification. It was
held that they formed in fact part of the family of the first
applicant's family-in-law and had never in fact belonged to the first
applicant's family with whom reunification was now sought. They
subsequently appealed to the Judicial Division of the Council of State.
The first applicant's oldest son Mohamed arrived in the
Netherlands on 14 April 1987 and requested a residence permit for
family reunification, which was refused by the Head of the local police
in Roermond on 23 April 1987. His request for reconsideration to the
Deputy Minister of Justice was rejected on 18 August 1987. He
subsequently appealed to the Judicial Division of the Council of State.
By decisions of 10 April 1989 the Judicial Division rejected all
above-mentioned appeals. It was held, inter alia, that in all cases
it was in fact the first applicant's mother-in-law and not his present
wife who had raised the first applicant's children, that the first
applicant had not given any indication as to how he had been involved
in raising the children from his previous marriages, that these
children had always lived in Morocco and that the first applicant's
mother-in-law objected to the first applicant's decision to have his
children come over to the Netherlands and that they had in fact
belonged to the mother-in-law's family and not to the family of the
first applicant's present wife. The Judicial Division concluded that
although Article 8 of the Convention applied, the restrictive Dutch
policy concerning immigration outweighed the applicants' interests,
within the meaning of Article 8 para. 2 of the Convention, the
immigration policy serving the interest of the economic well-being of
the country.
COMPLAINTS
The applicants complain that the decisions of the Judicial
Division of 10 April 1989, determining their civil right to respect for
family life, violated their rights under Article 6 para. 1 of the
Convention.
The applicants further complain under Article 8 of the Convention
that their right to respect for their family life has unjustly been
interfered with and also that in this respect the Netherlands
authorities' decision to grant Hanan a residence permit constitutes
discrimination on the ground of birth within the meaning of Article 14
of the Convention in respect of the first applicant's other children
as the Dutch immigration policy distinguishes between children born out
of successive marriages.
THE LAW
1. The applicants complain that the decisions by the Judicial
Division of 10 April 1989, rejecting the appeals against the Deputy
Minister's decision not to grant the first applicant's children a
residence permit, violated their rights under Article 6 para. 1
(Art. 6-1) of the Convention. They submit that these proceedings
determined their civil right to respect for their family life.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
The Commission, however, recalls that a decision as to whether
an alien should be allowed to stay in a country does not as such
involve the determination of civil rights within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention (cf. No. 12122/86, Dec.
16.10.86, D.R. 50 p. 268).
Article 6 para. 1 (Art. 6-1) does accordingly not apply to the
case and this complaint must therefore be rejected as incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicants also complain that their right to respect for
their family life has unjustly been interfered with and invoke Article
8 (Art. 8) of the Convention, which provides, insofar as relevant:
"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."
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.
for example, No. 7816/77, 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 an 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 first applicant's children
concerned were all born in Morocco, where they have always lived. The
Commission also notes that the first applicant's children, Mohamed,
Ibahim and Hamid as from 1974, and the other children as from birth,
have lived with the first applicant's parents-in-law and were raised
by the latter, whereas the first applicant has not substantiated how
he was involved in raising his children.
However, the Commission need not examine whether such a degree
of dependency exists in the present case, as, even assuming there is
family life within the meaning of Article 8 (Art. 8) of the Convention
between the applicants, 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, withing the meaning
of paragraph 2 of Article 8 (Art. 8) of the Convention (cf. Eur. Court
H.R., Berrehab judgment of 21 June 1988, 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 (cf. Berrehab judgment, loc. cit., para. 29).
As pointed out above, the first applicant's children concerned
have always lived in Morocco. At the time of the introduction of the
present application they were between 22 and 6 years old.
A special feature of the present case is the consideration by the
Judicial Division in its decisions of 10 April 1989, that the first
applicant's mother-in-law had objected to the first applicant's
decision to have his children come over to the Netherlands, which
consideration the applicant does not dispute.
In these circumstances, the Commission considers that respect for
the applicants' family life does not outweigh valid considerations
relating to Dutch immigration policy.
The Commission considers, therefore, that the refusal to grant
a residence permit to the first applicant's children concerned cannot
be said to be disproportionate to the legitimate aim pursued and can
be regarded as necessary in a democratic society within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The first applicant's children concerned also complain that they
have been discriminated against on the ground of birth as a result of
the Dutch policy to distinguish between children born out of successive
marriages. They invoke Article 14 of the Convention in conjunction
with Article 8 (Art. 14+8) of the Convention.
Article 14 (Art. 14) of the Convention provides:
"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."
The Commission accepts that, as a general principle, it is a
legitimate interest and attribute of State sovereignty to control the
entry of immigrants and, if necessary, to limit the number of entrants,
priority being given to the close family unit. When considering
immigration on the basis of family ties, it is not contrary to the
Convention that a Contracting State examines the existence of family
ties on the basis of the factual situation at issue.
The Commission notes that the Dutch authorities have adopted a
policy, according to which an alien, who resides in the Netherlands,
is allowed to bring his spouse and the children born out of that
relationship to the Netherlands.
The Commission admits that this rule can create a difference of
treatment on the ground of birth if an alien has children born out of
a previous marriage, who do not belong to the close family unit. It
recalls however that, for the purpose of Article 14 (Art. 14), a
difference of treatment is only 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 H.R., Darby judgment of 23
October 1990, Series A no. 187, p. 12, para. 31).
In respect of the present case, the Commission has already noted
that the decision not to grant a residence permit to the first
applicant's children concerned cannot be considered to be
disproportionate to the legitimate aim pursued. It further notes that
the difference in treatment between Hanan and the first applicant's
other children follows from the difference in legal status between the
first applicant's third wife, who is entitled to reside in the
Netherlands, and his former wives, who were not.
The Commission therefore concludes that the present complaint
does not disclose any appearance of discrimination on the ground of
birth contrary to Article 14 of the Convention in conjunction with
Article 8 (Art. 14+8).
It follows that also the application in this respect is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy