KEMEVUAKO v. THE NETHERLANDS
Inadmissible
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
1. The applicant, Mr Eduardo Lutete Kemevuako, is an Angolan national who lives in Soesterberg. He is represented before the Court by Mr W.A. Venema, a lawyer practising in Rijsbergen. 2. Netherlands on 6 July 2001 and requested asylum. In the course of interviews held with immigration officials, he stated that he had been born on 20 May 1985. In 1996 or 1997 he had been taken away from his parents by soldiers of the Angolan Government, who had taken him to a military base where he had stayed for four or five years and where he had received education. He had not been allowed to leave the premises. During the last half year of his stay at the military base, he had been trained to become a soldier. After having heard that he had to fight against troops of the National Union for the Total Independence of Angola (“UNITA”) he had managed to escape the base with the help of his uncle, who had also been stationed there. 3. During the first interview held with the immigration authorities the applicant consented to cooperate in an age-verification examination. This radiographic examination was performed on 18 July 2001 and disclosed that the applicant was about 20 years old and must thus have been born in 1981 rather than in 1985. 4. On 22 July 2001 the applicant's asylum request was rejected by the Deputy Minister of Justice (staatssecretaris van Justitie), who found that the applicant's account could not be considered credible. The applicant lodged appeals, but eventually to no avail. After the Regional Court (rechtbank) of The Hague had quashed the rejection of the asylum request three consecutive times for formal reasons or because it lacked adequate reasoning, the immigration authorities again refused to grant the applicant a residence permit for the purpose of asylum on 4 January 2007. The subsequent appeal of the applicant was rejected by the Regional Court of The Hague, sitting in Utrecht, on 19 July 2007. The Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State, “the Division”) upheld the judgment of the Regional Court on 5 September 2007. No further appeal lay against this decision. 5. On 13 March 2008 the applicant applied for a residence permit “at the discretion of the Deputy Minister” (conform beschikking staatssecretaris), arguing that he had been residing in the Netherlands for seven years, during which period he had become integrated into Dutch society and had developed personal, social and economic ties as a result of the course in electrical engineering he had been following, his membership of a football club, and his adherence to the Jehovah's Witnesses. 6. The request was denied by the Deputy Minister on 13 March 2008 for the reason that the applicant did not hold a provisional residence visa (machtiging tot voorlopig verblijf), which was to be applied for at a representation of the Netherlands in the country of origin and which is a prerequisite for the grant of a residence permit for purposes not related to asylum. 7. The applicant filed an objection (bezwaar) against this decision, arguing that he ought to be exempted from the visa requirement. The Deputy Minister dismissed the objection on 15 August 2008, after which the applicant lodged an appeal with the Regional Court of The Hague, sitting in Breda. 8. In order to be able to await the outcome of the objection and, subsequently, the appeal proceedings in the Netherlands, the applicant also applied for a provisional measure (voorlopige voorziening). By judgment of 8 January 2009, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Breda, quashed the Deputy Minister's decision on the objection for lacking adequate reasoning. However, the judge upheld the legal consequences and, at the same time, rejected the request for a provisional measure. The provisional-measures judge reiterated that the ratio of the visa requirement for obtaining a residence permit for purposes not related to asylum lay in preventing the national authorities, prior to a decision on a person's request for admission having been taken, from being confronted with a fait accompli as a result of that person's presence in the Netherlands. Furthermore, the provisional-measures judge considered that the authorities were not under a positive obligation to exempt the applicant from the visa requirement, as the fact that the applicant had been allowed to reside in the Netherlands for six years pending the asylum proceedings could not be considered a special circumstance on the basis of which he should be exempted from the visa requirement. No other circumstances had been submitted justifying the conclusion that the decision not to exempt the applicant from the visa requirement constituted an exceptional hardship (onbillijkheid van overwegende aard) and neither had any such circumstances appeared. The provisional-measures judge added that since the obligation to leave the Netherlands in order to apply for a visa was in principle only temporary in nature, it was only in exceptional cases that the refusal to exempt an alien from the visa requirement would amount to an unjustified interference with that alien's right to respect for private life. 9. On 15 June 2009 the Division upheld the judgment of the provisional-measures judge. No further appeal lay against this decision. On that same day, the judgment of the Division was sent to the applicant pursuant to article 8:79 of the General Administrative Law Act (Algemene Wet Bestuursrecht).