CASE OF ARVELO APONTE v. THE NETHERLANDS
No violation of Art. 8;No violation of Art. 13
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
5. The applicant was born in 1964 in Caracas (Venezuela) and currently lives in Amsterdam. 6. On 17 March 1996 the applicant flew from Venezuela to Frankfurt. At the airport, German officials discovered 691.6 grams of cocaine on one of the applicant’s travelling companions, on the basis of which the applicant and her companions were arrested. On 21 October 1996 the Frankfurt am Main Regional Court (Landesgericht) convicted the applicant of participation in the deliberate importation of 691.6 grams of cocaine and sentenced her to two years and six months imprisonment. The applicant did not appeal the judgment. She was granted early release on 25 August 1997 and, on the same day, was expelled from Germany to Venezuela. The German authorities did not impose an exclusion order on the applicant. 7. In 2000 the applicant travelled as a tourist to the Netherlands where she met and started a relationship with a Netherlands national, Mr T. On 27 October 2000, a request for advice on her eligibility for a provisional residence visa (machtiging tot voorlopig verblijf) for the purpose of stay with Dutch partner was filed on behalf of the applicant. Such a visa entitles the holder to enter the Netherlands in order to apply for a residence permit for a stay exceeding three months. An application for a provisional residence visa is in principle assessed on the basis of the same criteria as a residence permit. On 9 April 2001, a positive advice was issued. 8. The applicant subsequently returned to Caracas where she applied for a provisional residence visa at the Netherlands mission. According to the applicant, the question whether she had ever been convicted of a criminal offence was not raised in the procedure on her request for a provisional residence visa and, being unaware that this would be relevant, she had not volunteered this information either. 9. Following the transmission of a positive advice of the Netherlands Aliens Police Service (Dienst Vreemdelingenpolitie) to the Netherlands mission in Caracas, in which the latter were requested to inform the applicant that, in order to quality for a residence permit, she would be required to sign a formal statement to the effect that she had never been the subject of criminal proceedings and/or a criminal conviction (antecedentenverklaring; hereinafter “declaration on criminal antecedents”), the applicant was provided on 27 April 2001 with a provisional residence visa by the Netherlands Minister of Foreign Affairs. According to the applicant, the information about the declaration on criminal antecedents was not given to her when she received the provisional residence visa at the Netherlands mission in Caracas. 10. On 2 May 2001 the applicant returned to the Netherlands where, to date, she has been cohabiting with Mr T. 11. On 11 May 2001 the applicant filed a request for a temporary regular residence permit (verblijfsvergunning regulier voor bepaalde tijd) for the purpose of stay with her Netherlands partner Mr T. When she was confronted with the prescribed declaration on criminal antecedents, she refused to sign it and her conviction in Germany came to light. 12. On 15 August 2001, the applicant was informed of the Minister’s intention (voornemen) to declare her an undesirable alien entailing the imposition of an exclusion order (ongewenstverklaring). The applicant was given the opportunity to react to this intention in the course of an interview conducted by the Aliens’ Police (vreemdelingenpolitie) on 28 August 2001. 13. On 16 October 2001, the prosecution department at the Amsterdam Regional Court (arrondissementsparket) was requested to consider whether the facts of which the applicant had been convicted in Germany constituted a criminal offence under Dutch law and whether the sentence imposed was comparable to the sentence that would be imposed by a Netherlands judge if the offence had been committed in the Netherlands. In its reply of 6 March 2002, the prosecution department stated that participation in the deliberate importation of cocaine constituted a serious criminal offence (misdrijf) under Dutch law, attracting a prison sentence of up to 12 years’. It further stated that the applicant, if she were convicted in the Netherlands, would probably be sentenced to 15 to 24 months’ imprisonment on the understanding that a judicial examination and determination of sentence obviously depended on the specific circumstances of each individual case. 14. By decision of 21 March 2002, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s request for a residence permit. The Deputy Minister further declared the applicant an undesirable alien entailing the imposition of a ten-year exclusion order, as it had appeared that the applicant had been convicted on 22 October 1996 by the Frankfurt am Main Regional Court of participation in the deliberate importation of cocaine for which she had been sentenced to two years and six months’ imprisonment. Having noted the contents of the letter of 6 March 2002 of the prosecution department at the Amsterdam Regional Court, the Deputy Minister found that the judgment of the Frankfurt am Main Regional Court did not substantially differ from the judgment that would have been passed by a Netherlands court. While acknowledging that the exclusion order constituted an interference with the applicant’s right to respect for her family life, the Minister considered that this was justified in the interests of public safety (openbare orde) and the prevention of crime, and that the general interests of the State thus outweighed those of the applicant. 15. On 14 May 2002, the applicant lodged an objection (bezwaar) against the decision. She argued that, as she had been granted a provisional residence visa, she had a legitimate expectation that she would be granted a residence permit as well. She further argued that a Dutch court would have passed a much more lenient sentence than the German court had done and that forcing her to leave would constitute an unjustified interference with her right to respect for family life now that she had been legally residing in the Netherlands since 2 May 2001. 16. As a decision to impose an exclusion order is immediately enforceable and an appeal against such a decision does not enjoy automatic suspensive effect, the applicant applied on 4 June 2002 to the Regional Court (rechtbank) of The Hague for a provisional measure (voorlopige voorziening) in order to stay her expulsion pending the objection proceedings. 17. The applicant and her partner married in Amsterdam on 7 February 2003. On 11 April 2004 a son was born of this marriage. The applicant had decided that, in view of her age, it would be unwise to wait too long before conceiving a child, despite her uncertain residence status. 18. In the meantime, on 31 March 2004, the applicant was heard on her objection lodged on 14 May 2002 before an official board of enquiry (ambtelijke commissie). This board also put questions to her husband who attended the hearing, who stated inter alia that he had a reasonable command of Spanish but that he did not wish to settle in Venezuela given the bad economic situation there. The applicant stated inter alia that she was in contact with her mother and two brothers who were living in Venezuela. 19. On 7 June 2004 the Minister for Immigration and Integration (Minister van Vreemdelingenzaken en Integratie; the successor to the Deputy Minister of Justice) dismissed the applicant’s objection on the grounds that the applicant could not claim a legitimate expectation to be granted a residence permit on the basis of the provisional residence visa and that a Dutch court would have imposed a sentence approaching the sentence handed down by the German court. Furthermore, the Minister held that the interference with the applicant’s family life was justified in order to protect public safety (openbare orde) and to prevent crime in view of the applicant’s drug-related conviction, and that there were no objective obstacles standing in the way of the applicant’s husband and child following her to Venezuela. 20. On 8 July 2004, the Regional Court of The Hague sitting in Amsterdam – unaware of the fact that the applicant’s objection had been determined on 7 June 2004 – granted the provisional measure that she had requested on 4 June 2002. As its requests of 3 February 2004 and 25 March 2004 to the Minister for information about the state of affairs in the objection proceedings had remained unanswered, it concluded that apparently the Minister did not attach great weight to the applicant’s speedy removal from the Netherlands and therefore granted the provisional measure. 21. By 9 June 2004 the applicant had already filed an appeal with the Regional Court of The Hague against the dismissal of her objection, raising largely the same grounds and elaborating her claim that she was unlikely to have been sentenced to more than six months’ imprisonment had she been tried by a Dutch court. She based this assertion on a document containing indicative guidelines for the determination of sentences for drug couriers, in use by judges in the Netherlands. A sentence of less than six months in the applicant’s case would have meant, according to the regulations in force, that she would have been eligible for a residence permit. 22. On 20 August 2004, after a hearing held on 13 August 2004, the Regional Court of The Hague sitting in Amsterdam denied the applicant’s appeal. The court agreed with the Minister that there was no question of a legitimate expectation. It further found that, based on the advice of the public prosecution department, the Minister had correctly estimated the length of the sentence that a Dutch court would have handed down. As regards Article 8 of the Convention, the court held that the interference with the applicant’s family life was justified in order to protect public safety and to prevent crime and that there were no objective obstacles to the applicant and her family continuing their family life in Venezuela. In this context it considered that the conviction concerned a narcotics offence, that – although eight years had elapsed since this conviction whereas the applicant had not reoffended since – this did not affect the serious nature of this offence and that – unlike the situation in the case of Boultif v. Switzerland, (no. 54273/00, ECHR 2001IX) – the applicant had never held a residence permit. It further took into account that the applicant’s marriage and the birth of her child were posterior to the decision to impose an exclusion order and found that there were no objective obstacles for the applicant and her family to continue their family life in Venezuela. It therefore concluded that the public interest outweighed the personal interests of the applicant and her family. 23. On 14 September 2004 the applicant appealed the judgment of the Regional Court to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State; “the Division”) on largely the same grounds. The applicant also argued that the Regional Court had merely carried out a marginal assessment (marginale toetsing) by examining the reasonableness of the decision of the Minister to deny the applicant’s claim under Article 8 of the Convention, whereas the matter should have been considered on the merits as well. The applicant further claimed that the Regional Court had misinterpreted the principle of objective obstacles to the family starting anew in Venezuela. 24. The applicant also petitioned the President of the Administrative Jurisdiction Division for a provisional measure on 15 September 2004. The President denied the request as there were no grounds on which to assume that the impugned decision would be overturned on appeal. 25. On 15 February 2005 the Administrative Jurisdiction Division rejected the further appeal, holding: “What has been raised in the grievances does not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to article 91 § 2 of the Aliens Act 2000, no further reasoning is called for, since the arguments submitted do not raise questions which require determination in the interest of legal uniformity, legal development or legal protection in the general sense.” No further appeal lay against this ruling. 26. The applicant currently still resides in the Netherlands and has never reoffended. 27. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the Aliens Act 1965, unless indicated otherwise in this Act. 28. On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. Unless indicated otherwise in the Aliens Act 2000, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence. 29. According to the transitional rules, set out in article 11 of the Aliens Act 2000, an application for a residence permit which was being processed at the time this Act entered into force was to be considered as an application under the provisions of the Aliens Act 2000. Because no transitional rules were set for the substantive provisions of the aliens’ law, the substantive provisions under the Aliens Act 2000 took effect immediately. 30. The Netherlands Government pursue a restrictive immigration policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of international agreements, or if their presence serves an essential Dutch interest, or for compelling reasons of a humanitarian reason (article 13 of the Aliens Act 2000). Respect for family life as guaranteed by Article 8 of the Convention constitutes an obligation under an international agreement. 31. As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa. Only once such a visa has been issued abroad may the holder travel to the Netherlands and apply for a residence permit for the Netherlands. An application for a provisional residence visa is in principle assessed on the basis of the same criteria as a residence permit. 32. The admission policy for family formation (gezinsvorming) and family reunion (gezinshereniging) purposes is laid down in Chapter B1 of the Aliens Act Implementation Guidelines 2000. A partner or spouse of a Netherlands national is in principle eligible for admission, if certain further conditions relating to matters such as public policy and means of subsistence are met. 33. Pursuant to article 3.20 of the Aliens Decree 2000, a residence permit for the purposes of family reunion or family formation can be refused if the alien constitutes a threat to public order or national security. In this respect, article 3.77 § 1(c) of the Aliens Decree 2000 reads in its relevant part that a threat to public order exists when: “c. the alien has been convicted of a criminal offence and sentenced to either a non-suspended prison sentence or custodial measure, a community service order or non-suspended financial penalty, or if, in relation to a criminal offence, the alien has accepted an out-of-court settlement or if a punishment order has been issued against him by a public prosecutor.” Article 3.77 § 2 of the Aliens Decree 2000 provides that, in applying Article 3.77 § 1(c), also violations of public order committed outside of the Netherlands are taken into account, provided that they constitute a serious criminal offence (misdrijf) under Dutch law. 34. A past criminal conviction is not permanently held against the person concerned. Like the delays that apply to a request to lift an exclusion order, a past conviction is no longer held against a petitioner for a residence permit once a period of ten (for drugs or violent offences) or five (for other offences) years has elapsed, provided that the petitioner has not reoffended. 35. Article 67 of the Aliens Act 2000 provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she has been convicted of a serious offence carrying a prison sentence of three years or more, or poses a danger to public order. An exclusion order entails a ban on residing in or visiting the Netherlands. An exclusion order is immediately enforceable and the person on whom it is imposed is informed at the time of notification of this decision that he or she is obliged to leave the Netherlands immediately, that is within 24 hours. 36. An exclusion order can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act. Such appeal proceedings do not have automatic suspensive effect. 37. Article 91 § 2 of the Aliens Act 2000 provides as follows: “If the Administrative Jurisdiction Division of the Council of State finds that a complaint raised does not provide grounds for overturning [the impugned ruling], it may, in giving reasons for its decision, limit itself to that finding.” 38. Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by up to six months’ imprisonment or a fine of up to 4,500 euros. 39. An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for an uninterrupted period of ten years (article 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien.