P.R. v. THE NETHERLANDS
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicant is a Cape Verdean and Dutch national, born in 1959 and living in the Netherlands. She is represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam. A. The facts of the case, as submitted by the applicant, may be summarised as follows. On 3 March 1989 the applicant moved from the Cape Verde Islands to the Netherlands where she married a Dutch man. On the basis of the marriage she obtained a residence permit.  At the time the applicant came to the Netherlands she had three minor children, O.C. A.C. and S.D., who stayed behind in the Cape Verde Islands in the care of their grandmother. On 3 December 1992 the applicant’s husband passed away. The applicant’s residence permit was subsequently withdrawn. She remained in the Netherlands, however, and in July 1995 she obtained Dutch citizenship. On 27 November 1995 the applicant filed a request to the head of police (korpschef) of the Rotterdam Rijnmond region for a provisional entry visa (machtiging tot voorlopig verblijf) for her three children. The request was forwarded for consideration on the merits to the Visa Department (Visadienst) of the Ministry of Foreign Affairs. At the time of the request the children were 17, 13 and 11 years of age respectively. On 19 January 1996 the Visa Department, on behalf of the Minister of Foreign Affairs, rejected the applicant’s request. The Visa Department concluded that the family ties had been broken since, after the applicant had left, the children had been living with the grandmother and were being brought up by her. There was no indication that this situation could not be maintained. Moreover, the applicant had not shown that she had been involved with the upbringing and care of the children. The fact that the applicant had regularly transferred money to the Cape Verde Islands was insufficient to assume that family ties had continued to exist. The decision further stated, in accordance with national aliens policy, that, apart from international obligations, aliens could only be allowed for residence in the Netherlands if this served “essential interests of the Netherlands” (wezenlijk Nederlands belang) or in case of cogent reasons of a humanitarian nature (klemmende redenen van humanitaire aard). Neither of these conditions was met in the case of the applicant’s children. On 15 February 1996 the applicant filed an objection (bezwaar) through her counsel to the head of the Visa Department with respect to her two youngest children, M.C. and S.D.. On 29 March 1996 she filed additional grounds for her request which emphasised the applicant’s special and emotional ties with her children. The explanation given for the time elapsed between the applicant’s departure from the Cape Verde Islands and the request for entry of her children (6.5 years) was that the applicant had waited for naturalisation before applying for family reunification. The applicant submitted that she had been back to the Cape Verde Islands twice, in 1993 and 1996, to visit her children, that she made monthly phone calls to her children, that she received child benefits in the Netherlands and had made 12 money transfers for her children between 3 October 1991 and 26 March 1996. She moreover held that her mother, who was 61 and suffering from a nervous disease - for which the applicant submitted a medical certificate - was unable to provide further care for the children. On 9 May 1996 an inquiry commission (hoorcommissie) of the Immigration and Naturalisation Department of the Ministry of Justice (Immigratie en Naturalisatiedienst van het ministerie van Justitie) held a hearing with the applicant with a view to her objection. On 9 August 1996 the Minister of Foreign Affairs rejected the applicant’s objection concluding that, other than mere kinship, no special relationship could be distinguished between the applicant and the children. Furthermore, as regards the care of the children in the Cape Verde Islands, the applicant had not sufficiently shown why her mother, in spite of her disease, would not be able to continue taking care of the children. Moreover, the Minister established that a brother and sister of the applicant’s children who were of age were living with the applicant’s minor children at the same address and they could contribute to their care. The applicant lodged an appeal on behalf of her children with the Aliens Chamber of the Hague Regional Court sitting in Haarlem (Arrondissementsrechtbank te ‘s-Gravenhage zittinghoudende in Haarlem, Enkelvoudige Kamer voor Vreemdelingenzaken). She invoked, among others, Article 8 of the Convention in support of her claim. On 15 May 1997 the Regional Court rejected the appeal as unsubstantiated. It held that the children in fact did no longer belong to the applicant’s family. It dismissed the argument of the applicant’s uncertain status in the Netherlands before her naturalisation, with a reference to the fact that she had not tried to get her children to come to the Netherlands when her Dutch husband was still alive. The Regional Court further held that the financial contributions made by the applicant could not be considered as a real contribution to the care and upbringing of the children. It stated that no evidence had been produced as to the mentioned phone calls from the applicant to the children and also that the applicant had only visited the children twice after her departure. The Regional Court assessed that the applicant had brought the family’s living as a unit to an end when she decided to leave the Cape Verde Islands and come to the Netherlands. The Regional Court concluded that no other special relation had further been established between the applicant and her children and that therefore the family ties between applicant and her children should be considered to have ceased to exist. It found no grounds therefore to grant admission for family reunification. The Regional Court dismissed the claim for admission of the children on humanitarian grounds since it had not been shown that care for the children could not be continued in the Cape Verde Islands. When assessing whether the State’s actions had been in compliance with the requirements of Article 8 of the Convention the Regional Court firstly acknowledged that there was “family life” in terms of that provision. It reasoned, with reference to the Gül v. Switzerland judgement of 19 February 1996 and the Ahmut v. the Netherlands judgement of 28 November 1998, that its task was to strike a balance between the interests of the applicant and those of the society as a whole (the latter interest being the necessity of a restrictive immigration policy). The Regional Court finally concluded in the light of the Court’s jurisprudence that the applicant’s choice of family life had been one of not being with her children and that if the applicant wished to re-establish direct family life with her children, this would also be possible in the Cape Verde Islands. The Regional Court decision was final and not subject to appeal. B. Relevant domestic law Article 11 of the Aliens Law (Vreemdelingenwet) provides that the Minister of Justice (Minister van Justitie) decides on requests lodged by aliens for admission to and residence in the Netherlands. The Minister may refuse access 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 in the Aliens Circular (Vreemdelingencirculaire) of 1994 - is aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens are only granted admission for residence purposes if: (a) the Netherlands are obliged under international law to do so; (b) this serves “essential interests of the Netherlands”, e.g. economic or cultural interests; (c) there are “cogent reasons of a humanitarian nature” (Chapter A4/5.3 of the Aliens Circular).  The policy for admission for family reunification purposes is laid down in Chapter B1/5 of the Aliens Circular. This provides, insofar as relevant, that a residence permit for the purposes of family reunification may be granted to a parent of Dutch nationality with minor children, when the children factually belong to his/her family and family ties with one of the parents already existed abroad. Family ties are considered to have definitely ceased to exist in case of long-term integration of the child into another family while the parent(s) no longer exercise parental authority and no longer provide for the costs of upbringing and care of the child.