I.M. v. THE NETHERLANDS
Inadmissible
The applicant, I.M., has both Netherlands and Cape Verdean nationality. She was born in 1964 and is living in Rotterdam, the Netherlands. She is represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam. The facts of the case, as submitted by the parties, may be summarised as follows. On 10 November 1986 the applicant moved from the Cape Verde Islands to the Netherlands where she married a Netherlands national, Mr N.A.S. On the basis of that marriage she obtained a residence permit. The applicant’s daughter, S., who had been born into the relationship between the applicant and one Mr A.M.N. in the Cape Verde Islands on 4 March 1985, stayed behind in the care of her maternal grandparents. On 26 April 1989 a son, E., was born to the applicant and one Mr M.A. It had been the applicant’s intention to send for her daughter in 1989, which seemed to her an appropriate moment as she expected to have found a job and to have completed a professional training course by that time. However, her marriage breaking down in September 1989 thwarted these plans. As she was no longer residing with her husband, she applied for an independent residence permit which was granted in October 1989. The marriage was officially dissolved in 1990. The applicant acquired Netherlands nationality on 14 October 1991. She experienced difficulties obtaining proper accommodation, but this problem was solved in 1992. In the same year the applicant’s father fell seriously ill in the Cape Verde Islands due to which, the applicant submitted, the grandparents were no longer capable of taking care of S. In October 1992 the applicant addressed a letter to the Netherlands Ministry of Justice, stating that she wished for her daughter to grow up within her family, consisting of herself and her son E., in the Netherlands and that she would be able to take care of her daughter’s upbringing. She appended a declaration made by S.’s father in which he consented to his daughter going to the Netherlands to live with the applicant. The case-file does not contain a reply to this letter. On 20 April 1993 the applicant filed an official request for a provisional residence visa (machtiging tot voorlopig verblijf) for her daughter with the Visa Division of the Ministry of Foreign Affairs. This request was rejected on 9 June 1993 on the grounds that a stay of longer than three months was intended and that the application did not meet the relevant conditions laid down in Netherlands regulations. The applicant’s objection (bezwaar) against this refusal was rejected on 9 November 1993. Her subsequent appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) was rejected on 21 June 1996 by the latter as unsubstantiated since the close family ties (gezinsband) between the applicant and her daughter were considered to have ceased to exist. On 2 November 1994 the applicant filed a new request for a provisional residence visa for S. This was rejected on 16 December 1994. The applicant did not apply any legal remedies against this decision On 12 June 1995 the applicant applied for a third time for a provisional residence visa, which was rejected on 6 November 1995. Again, the applicant did not have recourse to any legal remedies against this decision. On 4 July 1995 S. entered the Netherlands on a short stay visa (visum voor kort verblijf), granted for the purpose of visiting relatives. On 4 September 1995 the applicant filed a request for a residence permit (vergunning tot verblijf) for S. On 11 September 1996 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected this request, by concluding that the applicant relied on the same facts as those submitted in respect of her earlier requests for a provisional residence visa and that the reasons to reject those requests remained pertinent. The decision underlined that the applicant’s daughter had entered the country on a short stay visa whereas the aim and the intended duration of her stay were not in compliance with the purposes of such a visa. The Deputy Minister held that this breached a rule of general interest. Referring to the need for a restrictive immigration policy, the decision further stated that, unless international law obliged the Netherlands to grant admission, aliens could be allowed residence only if this served “essential interests of the Netherlands” (wezenlijk Nederlands belang) or in case of compelling reasons of a humanitarian nature (klemmende redenen van humanitaire aard). Neither of these conditions was met in the case of S. On 21 October 1996 the applicant filed an objection (bezwaar) through counsel with the Deputy Minister of Justice, underlining that her child could not have a normal existence in the Cape Verde Islands and that there were solid reasons why the applicant had been unable to bring her child to the Netherlands before 1992. On 21 January 1997 the Deputy Minister rejected the applicant’s objection concluding that there were no grounds to justify a reversal of the initial decision since no new facts or other circumstances had been adduced and the grounds for rejection had been correct. On behalf of S. the applicant lodged an appeal against the decision of the Deputy Minister with the Aliens Chamber of the Hague Regional Court sitting in Haarlem (arrondissementsrechtbank te ‘s-Gravenhage nevenzittingsplaats Haarlem, Enkelvoudige Kamer voor Vreemdelingenzaken). She requested an interim measure (voorlopige voorziening) to the effect that her daughter would not be expelled while the appeal was pending and invoked Article 8 of the Convention in support of her claim. eerste toelating) to the Netherlands, rather than a refusal to prolong an existing right of residence. The Regional Court rejected the request for a provisional measure. The Regional Court’s decision was final and not subject to appeal. 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 a residence permit for the Netherlands be granted. An application for a provisional residence visa is evaluated on the basis of the same criteria as a residence permit. In general, the Minister of Justice (Minister van Justitie) decides on requests lodged by aliens for residence in the Netherlands (Article 11 of the 1994 Aliens Act (Vreemdelingenwet 1994)). The Minister of Justice can refuse entry and residence on general interest grounds (gronden aan het algemeen belang ontleend). In view of the situation in the Netherlands as regards population size and employment, Government immigration policy – defined at the time in the 1994 Aliens Circular (Vreemdelingencirculaire 1994) – is aimed at restricting the number of aliens admitted to the Netherlands. In general, an application for a residence permit in the Netherlands is granted only if the individual’s presence serves an essential national interest or if there are compelling humanitarian grounds to do so (Chapter A4/5.3 of the 1994 Aliens Circular). The policy for admission for family reunion purposes was laid down in Chapter B1 of the 1994 Aliens Circular. It provided that the following persons, where relevant, may qualify for family reunion if certain conditions (relating to matters such as public policy and means of subsistence) are met: – a person’s spouse, – a minor child born into the marriage who actually belongs to the family unit (gezin), and – a minor child born outside the marriage who actually belongs to the family unit (e.g. a child of one of the spouses from a previous marriage or a foster child). The phrase “actually belonging to the family unit” (“feitelijk behoren tot het gezin”) used in Netherlands law overlaps only partly with the term “family life” in Article 8 of the Convention. The former is understood to mean, for instance, that the close family ties (gezinsband) between the child and its parents whom it wishes to join in the Netherlands already existed in another country and have been maintained. For the rest, the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case. Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation, the way in which the relationship between parent and child has been developed during the separation, the parent’s involvement in the child’s care and upbringing, custody arrangements, the amount and frequency of the parent’s financial contributions to the child’s care and upbringing, the parent’s intention to send for the child from the Netherlands as soon as possible and his/her efforts to do so, and the length of time that the child has lived in a family other than with the parent. Living together in the Netherlands without a permanent residence permit is not seen as restoring severed family ties.