CHANDRA AND OTHERS v. THE NETHERLANDS
Inadmissible
The first applicant, Ms Roslina Chandra, is a Netherlands national of Indonesian origin, born in 1958 and living in Eindhoven. The second, third, fourth and fifth applicants, Henry, Willian, Ayreen and Nivula Tjonadi – the first applicant’s children – are Indonesian nationals, born in 1979, 1980, 1983 and 1985 respectively. They currently live in Eindhoven with their mother. The applicants are represented before the Court by Mr I.K. Kolev, a lawyer practising in Hapert. The facts of the case, as submitted by the parties, may be summarised as follows. In 1992 the first applicant (“the mother”) was in the process of getting a divorce from her Indonesian husband, father of the other applicants (“the children”). She submitted that her husband did not meet his responsibilities as head of the family, was frequently inebriated, abused her and the children, did not provide for basic daily needs and repeatedly forced her out of the house at knifepoint. On 10 September 1992, while the divorce proceedings were still ongoing, the mother left Indonesia and came to the Netherlands where she met and settled with a Netherlands national. On 2 April 1993 she was granted a residence permit for the specific purpose of living with her partner. The father retained custody of the children who remained with him in Indonesia. The mother pursued legal proceedings from the Netherlands in order to obtain a divorce as well as custody of the children. In October 1993 the mother was granted custody of the children, but this decision was appealed by the father. In a final decision of 29 April 1995 she was granted custody. According to the mother’s submissions, she subsequently started preparations for the children to join her in the Netherlands. Her partner, however, was reluctant to have the four children coming to live with them. On 22 July 1996 the mother obtained Netherlands nationality. In January 1997 the relationship between the mother and her partner ended and she settled in a place of her own. In February 1997 the children were granted permission by their father to leave Indonesia in order to join their mother. On 20 March 1997 they entered the Netherlands on a short stay visa (visum voor kort verblijf), granted for the purpose of visiting their mother and valid for 90 days. They have been living with their mother since that time. On 12 May 1997 the children lodged a formal application for a residence permit (vergunning tot verblijf) in order to stay with their mother. On 13 August 1997 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the children’s request considering that the criteria for family reunion had not been met given that, firstly, the close family ties (gezinsband) between mother and children must be considered to have been severed and, secondly, the mother had insufficient means of subsistence. The Deputy Minister also found that this decision did not entail a breach of Article 8 of the Convention, since it did not prevent the applicants from continuing to exercise their family life as they had done prior to the children’s arrival in the Netherlands. Furthermore, there were no impediments for the mother to follow her children to a place outside the Netherlands. On 2 September 1997 the children filed an objection (bezwaar) against this decision. On 26 September 1997 the Deputy Minister informed the children that they were not allowed to await the outcome of their objection in the Netherlands. On 30 September 1997 the children filed a request with the Hague Regional Court (arrondissementsrechtbank) for a provisional measure (voorlopige voorziening) that would allow them to remain in the Netherlands pending the proceedings on their objection. On 15 October 1997 the Deputy Minister rejected the objection. The children subsequently filed an appeal against that decision with the Hague Regional Court, amending their request for a provisional measure in that they now wished to be allowed to await the outcome of the appeal proceedings in the Netherlands. On 10 March 1999 the Regional Court rejected the appeal, as well as the request for a provisional measure. It confirmed the Deputy Minister’s assessment that the close family ties between the mother and the children had been severed. The Regional Court held in this respect that the mother had failed to show that close family ties with her children had been maintained either through parental decisions or through financial support, even after she had obtained custody of them. The Regional Court attached particular importance to the fact that it was only in 1997 that the mother had taken concrete steps to have her children join her in the Netherlands and not already in 1993 and 1995 when she had obtained custody of them. The Regional Court saw no merit in the arguments that refusing the children residence would amount to a violation of Article 8 of the Convention. In this context it had regard to the fact that the proceedings concerned a request for a first admission (eerste toelating) to the Netherlands, rather than a refusal to extend existing residence. It further held that there were no objective obstacles to the applicants’ family life being exercised elsewhere – the mother was free to develop family life with her children in Indonesia. The Regional Court concluded that a proper balance had been struck between the interests of the applicants and those of society as a whole, the latter interest being served by a restrictive immigration policy. 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 (machtiging tot voorlopig verblijf). 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 assessed on the basis of the same criteria as a residence permit. At the time relevant to the present application, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1994 (“the Act” - Vreemdelingenwet 1994). On 1 April 2001 a new Aliens Act entered into force but this has no bearing on the present case. Under Article 11 paragraph 5 of the Act, a residence permit may be refused on public 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 Aliens Circular 1994 (“the 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 Circular). The admission policy for family reunion purposes was laid down in Chapter B1 of the 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 of 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 only partly overlaps 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 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.