GEREGHIHER GEREMEDHIN v. THE NETHERLANDS
Inadmissible
Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
1. The applicant, Mr Firay Gereghiher Geremedhin, was born in 1971 in Tesenay, Eritrea. His nationality is unknown and he is living in Rotterdam. The applicant, who has been granted legal aid, was represented before the Court by Mr C.F. Wassenaar, a lawyer practising in Rotterdam. 2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In the late nineties, whilst the applicant was serving in the Eritrean military, his spouse Y fell ill. After her death in July 2002, their four children, Filmon, Mary, Robiel and Henok, were taken into the care of their paternal grandparents in Eritrea as the applicant was refused a discharge from the army for the purpose of taking care of his children. 5. Later in 2002, the applicant married Mislal, his current spouse, and in 2003 their son Hannibal was born. Having grown increasingly frustrated with the policies of the Eritrean Government and his unsuccessful requests for a discharge from the military, the applicant and his wife fled in June 2004 to Saudi Arabia where they applied for asylum. In October 2004, they were recognised by the United Nations High Commissioner for Refugees (“UNHCR”) as refugees under the 1951 Convention on the Status of Refugees. The applicant’s four children from his first marriage and Hannibal remained in Eritrea with the applicant’s parents. 6. During the stay of the applicant and Mislal in Saudi Arabia, their daughter Betlehem was born in January 2005. She is suffering from congenital hydrocephalus and a congenital heart condition. 7. At the request of the UNHCR, the applicant, his spouse and their child Betlehem were accepted for resettlement as quota refugees in the Netherlands. According to information provided by the applicant to the UNHCR and recorded in the UNHCR Resettlement Registration Form signed by the applicant on 11 January 2007, Filmon had been born in 1990, Mary in 1993, Rob(i)el in 1994, and Henok in 1995. 8. On 6 November 2007, the applicant, his spouse and Betlehem were granted Netherlands asylum-based residence permits. According to information provided by the applicant to the Amersfoort municipal authorities after their arrival in the Netherlands, Filmon had been born in 1991, Mary in 1995, Robiel in 1997, and Henok in 1999. 9. On 28 January 2008, the applicant’s spouse filed a request for advice on the issuance of a provisional residence visa (machtiging tot voorlopig verblijf) for Hannibal for the purpose of family reunion in the Netherlands. 10. Also on 28 January 2008, the applicant filed a request for advice on the issuance of a provisional residence visa for his four children born out of his first marriage with Y for the purpose of family reunion in the Netherlands. 11. On an unspecified date in 2009, the five children left Eritrea for Sudan as their grandparents were getting too old to care for them. They ended up in the Shagarab refugee camp in eastern Sudan, where they were registered as refugees after a refugee status determination carried out jointly by the UNHCR and the Government of Sudan. 12. On 9 March 2009, the Visa Service (Visadienst) of the Netherlands Ministry of Foreign Affairs issued a positive recommendation in respect of the request concerning Hannibal, who until their flight in June 2004 had been part of the nuclear family unit (gezin) of the applicant and Mislal, and provided inter alia that it would be demonstrated by official documents – when submitting the request for a provisional residence permit – that Mislal had legal custody (rechtmatig gezag) over Hannibal. As he lacked official documents demonstrating his family tie with the applicant and his spouse, Hannibal was considered to find himself in a situation in which – through no fault of his own – he was hampered by a lack of evidence (bewijsnood). He was therefore offered the possibility to demonstrate the relationship by means of a free DNA test for which he had to travel to the Netherlands mission in Khartoum. Following a delay caused by logistical problems, he was eventually taken to the Netherlands mission in Khartoum – accompanied by a UNHCR staff member – to provide a DNA sample. 13. On 15 December 2009, the Netherlands mission reported that the results of the DNA test showed a strong probability verging on certainty that Hannibal was the applicant’s son. Consequently, he could be admitted to the Netherlands and a provisional residence visa was issued to him. On 31 January 2010, the Netherlands mission in Khartoum provided Hannibal with travel documents allowing him to travel to the Netherlands and join his parents. He entered the Netherlands on 7 April 2010 and was granted a residence permit on 14 April 2010. 14. In a separate decision also taken on 9 March 2009, the Visa Service of the Netherlands Ministry of Foreign Affairs issued a negative recommendation in respect of the request for advice concerning the applicant’s four children born out of his first marriage. Unlike Hannibal, there were no grounds to authorise family reunion in the Netherlands under the rules applicable for reunification of refugee families since the close family ties (gezinsband) between the applicant and the four children were considered to have ceased to exist as the children had no longer formed a part of the applicant’s nuclear family unit when in June 2004 the applicant and his wife had left Eritrea but, since the death of their mother in July 2002, had belonged to the nuclear family unit of the applicant’s parents as the applicant was unable to care for them. Accordingly, there were doubts as to the relationship of dependency between the applicant and these four children. For this reason, the applicant had been requested to substantiate this relationship of dependency and to submit the birth certificates of these children, which he had not done. Further taking into account the ages of the children, the fact that they were living together in the care of their grandparents, that they were rooted in Eritrean society and of an age that they should be regarded as able to fend for themselves, it was also found that leaving the four children in Eritrea did not amount to such a harrowing situation that it should be qualified as undue hardship (onevenredige hardheid). It was further found that there were no special facts or circumstances giving rise to a positive obligation under Article 8 of the Convention to admit the four children to the Netherlands. At the foot of the decision was a note that, according to settled case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), no appeal lay against a recommendation in respect of a request for advice given by the Visa Service on the issuance of a provisional residence visa. 15. By 17 August 2009, when the present application was introduced, neither the applicant nor the four children from his first marriage had filed a formal request for the issue of a provisional residence visa for the purpose of family reunion in the Netherlands either under the rules for family reunion of refugee families or under the rules applicable to regular family reunion. 16. According to a medical statement, drawn up on 24 September 2009 by a doctor at the Utrecht Wilhelmina Children’s Hospital, Betlehem had undergone operations in this hospital from 30 November 2008 to 1 May 2009 and her present medical condition did not allow her to go to Sudan. 17. On 23 April 2010 the applicant informed the Court inter alia that he had recently rented a house in Khartoum for his children. 18. On 28 November 2012 the applicant informed the Court that his oldest son Filmon had been arrested by the Eritrean authorities on the territory of Sudan and had been taken into detention for failure to comply with his military obligations in Eritrea and possibly also for having illegally left Eritrea. The other three children were still in Sudan. 19. On 7 January 2013 the applicant filed a fresh request for advice on the issuance of a provisional residence visa, submitting inter alia that, pursuant to Article 8 of the Convention, the Netherlands authorities were under a positive obligation to provide the four children concerned with a provisional residence permit. By letter of 20 March 2013, the applicant was informed by the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) of the Ministry for Security and Justice (Ministerie van Veiligheid en Justitie) that his request was not suited for consideration in proceedings on a request for advice because he was asking for several exemptions and investigations which could not be considered in proceedings on a request for advice. The applicant was informed that his four children should file a formal request for the issuance of a provisional residence visa in the country of origin or habitual residence. As to his requests for a DNA test and exemption of the minimum income requirement under the applicable immigration rules, he was informed that these belonged to the possibilities but would only be considered in the context of a formal request. 20. On 9 October 2013 the applicant informed the Court that, due to great difficulties in Sudan, the four children born out of his first marriage had had to leave that country. The youngest two, Robiel and Henok, had returned to Eritrea where they were living with their paternal grandmother. His oldest son was still in detention in Eritrea for failure to comply with his military obligations, and the applicant’s daughter Mary had been kidnapped and was being held by rebel forces in the south of Libya. These rebel forces had asked the applicant for money for her release. 21. On 10 December 2014 the applicant informed the Court that Mary had managed to travel to Europe. She had joined the applicant in the Netherlands where she had been granted asylum. The applicant further stated that he was unaware of the whereabouts and fate of his oldest son Filmon and that he intended to file an application for a provisional residence visa in due time for his two youngest sons Robiel and Henok who were still living with their grandmother in Eritrea and who would soon come of age and therefore eligible for military service in Eritrea. 22. On 20 October 2015 the applicant informed the Court that the application for a provisional residence visa he had filed on 20 March 2015 as a sponsor (mvv-referent aanvraag) on behalf of Robiel and Henok had been rejected on 17 July 2015 by the Deputy Minister for Security and Justice because there was a discrepancy between the information provided by the applicant and the UNHCR about the exact year of birth of Robiel and Henok, and the applicant had not demonstrated that he had legal custody of them as minor children. The applicant filed an objection (bezwaar) against this decision and, on 10 September 2015, submitted his written ground of appeal to the Deputy Minister and a hearing was scheduled for 14 January 2016. No further information about these proceedings has been submitted. 23. On 12 January 2016 the applicant informed the Court that his son Henok had managed to reach the Netherlands where he had applied for asylum and that he was allowed to await the outcome of this application in the Netherlands. During his journey, he had been separated from his brother Robiel, who was still in Sudan or Libya. The applicant was still in contact with Robiel. Their eldest brother Filmon was doing his military service in Eritrea and therefore could not apply for a provisional residence visa, as Eritrea does not allow its nationals to leave the country and as there is no Netherlands embassy in Eritrea. 24. In a ruling handed down on 12 January 2004 (case no. 200306128/1; ECLI:NL:RVS:2004:31), the Administrative Jurisdiction Division found that the Visa Service’s response on a request for advice for the issuance of a provisional residence visa is merely a recommendation (advies) and not a formal decision (beslissing) producing legal effects (rechtsgevolgen) within the meaning of the General Administrative Law Act (Algemene Wet Bestuursrecht). Consequently, unlike a formal decision on a formal request for a provisional residence visa, such a response from the Visa Service cannot be challenged in administrative appeal proceedings. 25. A decision on a formal application for a provisional residence visa can be challenged in administrative appeal proceedings by filing an objection (bezwaar) with the executive administrative authority that took the decision, a subsequent request for judicial review before the Regional Court (rechtbank) of The Hague and, finally, a further appeal to the Administrative Jurisdiction Division. In these administrative appeal proceedings, an appellant can challenge the compatibility of the decision concerned with, for instance, Article 8 of the Convention. 26. A positive recommendation on a request for advice for the issuance of a provisional residence visa does not automatically entail the issuance of such a visa. In order to obtain it, a petitioner must submit an actual application request for a provisional residence visa at the Netherlands mission in his or her country of origin or country of habitual residence. Any subsequent appeal proceedings can be brought by the petitioner or by a sponsor (referent) on the petitioner’s behalf. 27. The rules governing the possibility to obtain an exemption from the obligation to pay statutory administrative charges (leges) in immigration proceedings have been set out in G.R. v. the Netherlands (G.R. v. the Netherlands, no. 22251/07, § 19, 10 January 2012). 28. Under the Netherlands immigration rules, the reunification of refugee families is in certain aspects less demanding for applicants than the procedure for regular family reunion in that, in the procedure for the reunification of refugee families, the accepted refugee does not have to comply with any income requirement (on this point, see Haydarie and Others v. the Netherlands (dec.), no. 8876/04, 20 October 2005) before his or her nuclear family members may be eligible for family reunion and no administrative charges must be paid for an application for reunification of a refugee family. The requirements for documentary evidence from the country of origin are also less strict than in the regular procedure. 29. At the relevant time, a residence permit for the purpose of the reunification of a refugee family could be issued to the alien who actually belonged – whether as a spouse or minor child – to the de facto nuclear family unit (feitelijke gezinsband) at the time of flight of the accepted refugee, who held the same nationality as the accepted refugee, and who had entered the Netherlands at the same time as the accepted refugee or in respect of whom an application for a provisional residence visa had been filed within three months of the date on which the status of refugee had been granted to the person with whom family reunion was sought. The same applied in respect of a request for advice for the issuance of a provisional residence visa for the purpose of reunification of refugee families. Since 1 June 2013 it is no longer possible to request such an advice as, from that date, it is possible for persons holding the status of refugee and living in the Netherlands to apply themselves, as a sponsor, for a provisional residence visa for relatives for the purpose of refugee family reunification. 30. Until 8 June 2013, a person eligible for a residence permit for the purpose of joining a spouse/partner in the Netherlands where the latter had been granted the status of refugee under the rules applicable to the reunification of a refugee family obtained an asylum-derived residence permit (afgeleide verblijfsvergunning asiel), i.e. a residence permit dependent on the refugee status of the person with whom reunion had been allowed. Given the strict distinction between an asylum-related residence permit and a “regular” (i.e. non-asylum related) residence permit, arguments based on Article 8 of the Convention could not be entertained in proceedings on an application for an asylum-related residence permit, including proceedings on a request for a residence permit for reunification of a refugee family. 31. As from 8 June 2013, when the order amending the Aliens Act 2000 Implementation Guidelines 2013/13 (Wijzigingsbesluit Vreemdelingen-circulaire 2000, “WBV 2013/13”) entered into force, Article 8 principles are taken into account in assessing – in proceedings on a request for a residence permit for the reunification of a refugee family – whether a person belongs to the family of an accepted refugee.