KAUR v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
1. The applicant, Ms Rajwinder Kaur, is an Indian national who was born in 1986 and lives in Punjab, India. She was represented before the Court by Mr J.E. Groenenberg, a lawyer practising in Hoofddorp. New Delhi, India – for a provisional residence visa (machtiging tot voorlopig verblijf) for the purpose of joining her partner in the Netherlands, with whom she has a (minor) child. By decision of 21 October 2009 the applicant’s request was denied by the Minister of Foreign Affairs. The applicant was deemed a threat to public order given her conviction by the single-judge chamber of the Regional Court (rechtbank) of The Hague in February 2009 for theft in association with one or more persons, for which offence she had been sentenced to payment of a fine of EUR 400. The Minister also considered that this refusal did not violate the applicant’s right to respect for family life as guaranteed by Article 8 of the Convention given the fact that it had been the applicant’s own doing that had led to her conviction and no insurmountable obstacles could be found preventing the applicant and her family from living their family life outside the Netherlands. 3. By decision of 26 March 2010 the Minister dismissed the applicant’s objection (bezwaar) against the above mentioned decision. The Minister had regard to the fact that the Court of Appeal (gerechtshof) of The Hague had upheld the applicant’s conviction for theft in association with one or more persons in February 2010 and had only reduced the fine to EUR 300. Furthermore, taking into account the principles set out in the Court’s judgments in Boultif v. Switzerland, no. 54273/00, 2 November 2001 and Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006-XII, the Minister considered that the applicant’s right to respect for family life had not been violated. 4. The applicant’s appeal against the decision of 26 March 2010 was upheld by the Regional Court of The Hague by decision of 22 September 2010 and the decision of the Minister was subsequently quashed. The Regional Court considered that the Minister had not weighed the (lack of) seriousness of the offence committed by the applicant in an appropriate manner. 5. The Minister lodged a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State; hereafter “the Division”). By decision of 25 March 2011 the Division upheld the Minister’s further appeal, quashed the judgment of the Regional Court on the applicant’s appeal and rejected that appeal. The Division held that the authorities had struck a fair balance between all interests involved and that there had been no infringement of the applicant’s right to respect for family life. Also on 25 March 2011, the judgment of the Division was sent to the lawyer who had represented the applicant pursuant to article 8:79 of the General Administrative Law Act (Algemene Wet Bestuursrecht).