J.M. v. THE NETHERLANDS
Inadmissible
Elisabeth Palm
The applicant is a naturalised Dutch national of Cape Verdean origin, born in 1952 and living in Rotterdam. He is represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant entered the Netherlands in 1977, where he has lived since. In 1989, his wife and their two youngest children, who until that time had lived in the Cape Verde Islands, joined the applicant in the Netherlands and were granted residence permits. The applicant’s two eldest children, G. and L., born in 1977 and 1979 respectively, remained in the Cape Verde Islands because the applicant had not sufficient means to bring them over as well. They were cared for by the applicant’s parents. The applicant obtained Netherlands nationality in 1992. His wife has retained her Cape Verdean nationality. Three further children were born to the applicant and his wife in the Netherlands. These children have Netherlands nationality. After the death of the applicant’s father in June 1992, his mother came to the Netherlands in May 1993, where she was granted a residence permit on humanitarian grounds in view of her advanced age. The applicant’s children G. and L., who were still attending school, remained in the Cape Verde Islands in the house that had formerly been inhabited by the applicant’s parents. They were being cared for by a neighbour. On 6 May 1993, the applicant applied for a provisional residence visa (machtiging voor voorlopig verblijf) for his children G. and L. for the purposes of family reunification. On 26 July 1993, in accordance with the advisory opinion of the Minister of Justice, the Minister of Foreign Affairs rejected the applicant’s request on the ground that the family ties between the applicant on the one hand and G. and L. on the other had been broken. The applicant lodged an objection (bezwaarschrift) with the Minister for Foreign Affairs against this decision on 10 August 1993. He produced his father’s death certificate, his marriage certificate, his contract of employment, several pay slips, various letters received from the neighbour who was looking after G. and L., and G. and L.’s birth certificates. No translation of the neighbour’s letters could be provided as they were written in an almost illegible hand and very poor Portuguese. The applicant’s objection was dismissed on 17 February 1994. The Minister considered not only that the family ties between the applicant and the two children had been broken, but also that it had not been demonstrated that the intention had been to leave them with their grandparents temporarily rather than permanently. Moreover, it did not appear that the applicant’s financial situation would have prevented him from bringing G. and L. over at an earlier date than May 1993. Finally, given their age and the fact that they were being cared for by their neighbour, it did not appear that their situation would be desperate if they had to remain in the Cape Verde Islands. It would, furthermore, be possible for the applicant to support them financially from the Netherlands. On 25 February 1994 the applicant appealed to the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State), which held a hearing on 3 March 1997. On 10 March 1997 the Administrative Jurisdiction Division dismissed the appeal, reiterating the grounds on which the Minister for Foreign Affairs had dismissed the objection. It found in addition that no satisfactory explanation had been given for the applicant’s waiting four years after bringing over his wife and his two younger children before bringing over G. and L. as well. His financial situation could not explain this lapse of time, since it did not appear that it had improved substantially during that time. It had not been established that the applicant had maintained contact with G. and L. and had supported them financially. It had not been shown that the neighbour who had taken care of them after their grandmother had left was no longer able or willing to do so, and in view of their age they should be considered increasingly able to take care of themselves, with financial support from the Netherlands if need be. Insofar as living conditions in the Cape Verde Islands were less favourable than in the Netherlands, this was immaterial; in this the situation of G. and L. did not differ from that of many of their compatriots who were likewise denied residence in the Netherlands. While the Administrative Jurisdiction Division accepted that “family life” in the sense of Article 8 of the Convention existed between the applicants and G. and L., it did not accept that there had been an “interference” with it, since the effect of the decision appealed against was not to break up the family by removing G. and L. from the Netherlands; nor were the applicant’s arguments sufficient to find that the Netherlands were under a positive obligation to grant G. and L. provisional residence visas.