USEINOV v. THE NETHERLANDS
Inadmissible
David Thór Björgvinsson
The applicant, Mr Kazim Useinov, is a national of the Former Yugoslav Republic of Macedonia (“the FYR of Macedonia”), who was born in 1965 and lives in Kudelstaart. He is represented before the Court by Mr M.F. Wijngaarden, a lawyer practising in Amsterdam. The respondent Government are represented by their Agent Ms J. Schukking, of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant came to the Netherlands on 19 May 1992 and applied for asylum. This request was rejected on 15 June 1992. The applicant’s subsequent request for revision (herziening) was dismissed on 13 April 1994. The final decision on the asylum application was taken by the Amsterdam Regional Court (arrondissementsrechtbank), which rejected the applicant’s appeal on 12 April 1995. However, the applicant did not leave the country and neither was he forcibly expelled. In 1993, while the proceedings on his request for asylum were still pending, the applicant formed a relationship with a Ms van B., a Netherlands national. Ms van B. was living next door to the applicant with her parents, but she spent so much time with the applicant that they were de facto living together. On 7 January 1995 a daughter, M., was born to the applicant and Ms van B. The applicant did not at that time recognise his daughter given that Ms van B.’s father was vehemently opposed to this. Being an asylum seeker, the applicant was not allowed to work in the Netherlands and he was thus unable to contribute financially to his daughter’s upbringing. However, he did spend one or two afternoons per week with her. On 26 November 1997 the applicant applied for a residence permit for compelling reasons of a humanitarian nature related to his having a Netherlands partner and daughter. On 28 November 1997 Ms van B. informed the immigration authorities that her relationship with the applicant had ended. The applicant’s request for a residence permit was rejected by the Deputy Secretary of Justice (Staatssecretaris van Justitie) on 7 May 1998. It was held that, even assuming that it could be established – quod non – that the applicant was the father of M., it had in no way been shown that he had enjoyed family life with her. Neither had it appeared that there had existed a lasting and exclusive relationship between the applicant and Ms van B. The applicant lodged an objection (bezwaar) against this decision, arguing that he saw his daughter on a regular basis – at least once and sometimes twice a week – and that, as his relationship with Ms van B. had ended, it could not be expected of the latter to move to the FYR of Macedonia in order to enable him to enjoy family life with his daughter. He further submitted a letter written by Ms van B. to his lawyer, in which she confirmed that the applicant was the biological father of her daughter M.; that the applicant had insufficient means to contribute financially to M.’s upbringing but that he did sometimes buy presents for her; that, although their relationship had ended, they were still friends; and that the three of them undertook activities together at least once a week. By a decision of 2 February 1999, the Deputy Minister rejected the objection, considering that the refusal to grant the applicant a residence permit did not constitute an interference with the applicant’s family life since that refusal was not aimed at taking from the applicant a residence permit which enabled him to enjoy family life in the Netherlands. Neither did there exist any special facts or circumstances which placed the State under a positive obligation to grant the applicant a residence permit. In this context the Deputy Minister noted that the applicant had never officially lived together with Ms van B. and that his claim that he saw his daughter once or twice a week had remained unsubstantiated. It had further not been shown that he had custody of M. or that he contributed financially to her upbringing. In addition, in view of the geographical distance between the Netherlands and the FYR of Macedonia and the cost of regular trips between those two countries, it was held that the contact which the applicant had with his daughter would not need to undergo a substantial change as a result of the refusal of a residence permit. The applicant appealed this decision to the Amsterdam Regional Court, submitting that his return to the FYR of Macedonia would render regular contact with his daughter impossible. As the FYR of Macedonia was the poorest country in Europe, it was unlikely that he would be able to afford regular trips to the Netherlands. If he had a job in the FYR of Macedonia, he would not have enough holidays to make regular longer trips to the Netherlands. In addition, there was no guarantee whatsoever that the applicant would be granted a visa. It was further not to be expected that Ms van B. would travel to the FYR of Macedonia to enable the applicant to see his daughter in view of the difficulties between the applicant and Ms van B.’s father and the latter’s influence over his daughter. The applicant also argued that not all relevant circumstances had been taken into account by the Deputy Minister when the interests of the community as a whole were balanced against those of the applicant’s. The circumstances which, in his view, merited to be taken into account were the fact that he had been living in the Netherlands since 1992, that his daughter was four years old, that he had regular contact with her, that due to an insufficiency of means it was impossible for him to contribute financially to his daughter’s upbringing, and that he did not dare take legal proceedings in order to recognise his daughter out of fear that Ms van B.’s father would stop him from seeing his daughter. In the proceedings before the Regional Court the applicant submitted a letter from the owner of a company saying he should like to employ the applicant and requesting that the applicant be granted a residence permit. On 21 February 2000 the Regional Court rejected the appeal. It found that the Deputy Minister had been justified in attaching greater weight to the economic well-being of the country than to the applicant’s interest in exercising family life with his daughter in the Netherlands. In this context the Regional Court had regard to the fact that the applicant and his daughter had never lived together as a family unit (gezin), that there was no arrangement concerning access and that the applicant did not contribute financially to his daughter’s upbringing. Finally, the Regional Court considered that the applicant should be deemed capable of maintaining some kind of contact with his daughter from the FYR of Macedonia. No further appeal lay against this decision, which was notified to the applicant on 14 March 2000. On 24 May 2000 the applicant requested the juvenile court judge of the Amsterdam Regional Court to establish an access arrangement between him and his daughter. In her decision of 14 November 2000, the juvenile court judge noted that M. was born out of the relationship between the applicant and Ms van B., and that the parents had themselves agreed on an access arrangement which had latterly, however, not been working out. Given that, pending the proceedings, it had appeared that the parents had reached agreement, the juvenile court judge established the access arrangement as agreed by the parents, to the effect that the applicant would see M. every Saturday from midday to 7 p.m. and that further contacts would take place by mutual agreement. On 3 January 2001 the applicant recognised his daughter with the permission of Ms van B., as a result of which legally recognised family ties (familierechtelijke betrekkingen) were created between them. Moreover, on 11 December 2001 a son, J., was born to the applicant and Ms van B., who was recognised by the applicant on 31 January 2002. In a letter to the Court of 24 February 2004 the applicant described his family situation as “living apart together”. Ms van B. worked four days a week, during which the applicant, who lived just two-hundred metres away, looked after the children. The family spent the remaining three days of the week mainly together. As of 9 August 2005 the local authorities of the town where the applicant was residing stopped providing him with State-sponsored accommodation, social benefits and health insurance. Legal proceedings instituted by the applicant against this decision were to no avail. On 1 September 2005 Ms van B. lost her job. As a result, the applicant is prevented from applying for a residence permit for the purpose of residing with his partner and children since one of the requirements for such a permit is that the partner who is already residing in the Netherlands is in employment and in receipt of a salary of at least 1,320 euros per month. At the time relevant to the present application, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). On 1 April 2001 a new Aliens Act entered into force but this has no bearing on the present case. Under Article 11 paragraph 5 of the Aliens Act 1965 a residence permit could be refused on public interest grounds. The Government pursued – and still 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 obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds. Respect for family life is one of those obligations arising from international agreements. To implement this restrictive policy, further conditions have been drawn up relating to each of the various grounds for the admission of aliens wishing to stay in the Netherlands. The admission policy for the purposes of forming a family was laid down in the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire 1994). Section B1/11 of these Guidelines addressed the requirements of Article 8 of the Convention regarding initial admission and continued residence. It had to be determined whether family life existed within the meaning of Article 8, whether refusal to grant admission to the alien would constitute an interference with his or her right to respect for family life and whether the interference would be justified under Article 8 § 2.