MENSAH v. THE NETHERLANDS
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicant, George Kenneth Mensah, has both Dutch and Ghanaian nationality. He was born in 1954 and is living in Almere, the Netherlands. He is represented before the Court by Mr Kooij, a lawyer practising in Almere. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1978 the applicant, when living in Ghana, entered into a traditional/religious marriage (i.e. a non-civil marriage) with a Ghanaian woman. Out of this relationship twins were born in 1982, George Kobina and Georgia Araba Mensah. In 1983 the relationship between the applicant and his partner ended. The applicant submits that their mother did not wish to continue to take care of the twins and that he has since taken care of them. He has not been in contact with the mother since and her whereabouts are unknown to him. In March 1984 the applicant entered the Netherlands for the first time. On 4 May 1984 he was expelled from the Netherlands on the grounds that he was staying in the country illegally. On 14 June 1984 the applicant married Ms. J. Lijesen, a Dutch national. The wedding took place in Ghana and the couple lived there for a short period together with the applicant’s children. At the end of 1984 the applicant’s wife decided to move back to the Netherlands. The applicant followed her and entered the Netherlands on 11 January 1985. On 29 March 1985 the applicant obtained a residence permit to stay with his wife. One child was born to the applicant and Ms. Lijesen. Their marriage lasted until 29 March 1989, when it was dissolved. On 4 May 1990 the applicant obtained Dutch nationality. On 15 August 1990 the applicant married Ms. M. Owusu Sekyere. They were divorced on 30 July 1992. In 1995 the applicant entered into a traditional/religious marriage with Ms. Juliana Owiredua of Ghanaian nationality. Ms. Owiredua has since obtained Dutch nationality. On 17 July 1996 they concluded a cohabitation contract (samenlevingscontract). The applicant submits that his two former partners, Ms. Lijesen and Ms. Sekyere, did not want to have his children brought into the family and refused to take care of their upbringing, whereas Ms. Owiredua had no objection to taking care of them and loves them as if they were her own. The applicant further submits that he was unable to let the children come to the Netherlands earlier as this would have been refused on the grounds of his lack of sufficient means of subsistence as required under Dutch law. Upon the applicant’s departure from Ghana, his two children were initially, and temporarily, housed with a friend of the applicant’s in Ghana. After three years the children could no longer be taken care of by that friend and had to move to the house of another friend - a Mr Aboya - who, after having started a family of his own, no longer wanted to take care of the applicant’s children. The applicant submits that his friends merely provided temporary accommodation for his children and were not effectively exercising parental authority over them. He took parental decisions, and he also paid all his children’s living expenses. From 1988 he has been visiting his children three times per year, being employed by an airline company enabling him to travel at cheaper rates. The relation between the applicant and Mr Aboya worsened when he discovered that in the latter’s family, funds, which he had sent for his children, were used for other purposes. Thus, money intended to cover school fees was allegedly appropriated by Mr Aboya, as a result of which the children were unable to go to school in Ghana. In September 1995 the then thirteen year old twins travelled to the Netherlands on a tourist visa. They have been living with the applicant and Ms. Owiredua ever since. On 7 November 1995 the applicant applied for a residence permit (vergunning tot verblijf) for his children. On 31 October 1996 the State Secretary of Justice (Staatssecretaris van Justitie) rejected the request, finding that the conditions under which family reunification could be allowed had not been fulfilled. Thus, no evidence had been produced either as to the existence of family ties prior to the applicant’s residence in the Netherlands, or of contacts between the father and the children having been maintained. Neither was there any evidence that the applicant had supported his children financially. The State Secretary noted, inter alia, that the applicant, since his arrival in the Netherlands, had formed a new family twice. The situation in Ghana was not found to be of such a nature that the children could not return there, and neither had they become integrated in the Netherlands to such an extent that a return to Ghana could not be expected of them. On 16 January 1997 the applicant filed an objection (bezwaar) with the State Secretary against his decision. On 3 June 1997 the State Secretary rejected the objection, finding that the family ties between father and children had been broken in view of the fact that the applicant’s leaving the twins in the care of friends for ten years could not be considered to have been a temporary measure. The State Secretary concluded that even if the situation in Ghana was less favourable for the children than the one in the Netherlands, they should nevertheless be presumed capable of fending for themselves without requiring intensive supervision and, if necessary, with financial support from the Netherlands. On 30 June 1997 the applicant lodged an appeal with the Hague Regional Court (Arrondissementsrechtbank) sitting in Zwolle. He argued that the interpretation given by the domestic authorities of “family” was not in line with Article 8 of the Convention and the case-law of the Court. He further emphasised the difficulties which his children would face if returned to Ghana, with no adequate accommodation or care, whereas he was capable of taking care of them in the Netherlands. On 1 July 1997 a person responsible for the children at school reported that they were suffering emotional problems as a result of their experiences in Ghana and that especially Georgina would benefit from a social rehabilitation programme. On 22 July 1997 a hearing took place before the Regional Court during which it appeared that, contrary to earlier statements by the applicant, the children had stayed with their grandmother in Ghana for seven or eight years and that regular contacts also existed between the children and their mother. The Regional Court rejected the applicant’s appeal on 24 July 1998. It held that the burden of proof as to the continued existence of family ties lay with the applicant and that he had failed to produce sufficient evidence of such family ties. In addition, no evidence confirming the applicant’s financial support or the actual exercise of parental authority over the children had been produced. In respect of Article 8 of the Convention the Regional Court found that the current level of family life between the applicant and his children had been created at a time when the children were not allowed to be in the Netherlands. Therefore, the decision to refuse them residence was not aimed at depriving them of a previously granted right to family reunification. The Regional Court concluded that Article 8 of the Convention did not impose a positive obligation on the State to respect an alien’s choice to exercise his family life in the Netherlands. It was further held that sufficient facilities for the care of the children existed in Ghana. On 21 January 1999 temporary guardianship (voorlopige voogdij) of the applicant’s daughter Georgia was attributed by the Juvenile Court Judge (kinderrechter) of Lelystad to a child care organisation, on the grounds that the applicant was not properly fulfilling his parental duties. On 11 February 1999 the Child Care and Protection Board (Raad voor de Kinderbescherming) filed a request with the District Court (kantongerecht) of Lelystad for the applicant nevertheless to be awarded parental authority (ouderlijk gezag) over his daughter Georgia. On 18 February 1999 the District Court judge awarded the applicant parental authority over his daughter Georgia and issued a supervision order (ondertoezichtstelling) whereby a child care organisation was charged with providing the applicant and his daughter the necessary support. On 14 April 2000 the Aliens Department (Vreemdelingendienst) of Almere confiscated the children’s passports and ordered them to leave the country. Article 1 of the Aliens Law (Vreemdelingenwet) provides that a provisional residence visa (machtiging tot voorlopig verblijf) is required for an alien who wishes remain in the Netherlands for a period of more than three months. The policy for admission for family reunification purposes is laid down in Chapter B1/5 of the Aliens Circular (Vreemdelingencirculaire). 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 cost of upbringing and care of the child.