RAMOS ANDRADE v. the NETHERLANDS
Inadmissible
The applicant, Mrs Alcidia Ramos Andrade, has both Netherlands and Cape Verdean nationality. She was born in 1966 and lives in Rotterdam. She was 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. The applicant moved from the Cape Verde Islands to the Netherlands on 24 October 1993. Her daughters Deisy Lara, born in 1988, and Dercilene, born in 1990, stayed behind in the care of the applicant’s mother. According to the applicant, the girls’ biological father, Mr T. Fortes Nascimento, has never had any involvement with his daughters’ lives; he is currently living in Luxembourg. On 16 March 1994 the applicant applied for a residence permit (verblijfsvergunning) enabling her to reside in the Netherlands with her partner Mr V.V., a Netherlands national. This request was refused. The applicant’s subsequent objection (bezwaar) and appeal (beroep) were declared inadmissible on 22 May and 21 November 1995 respectively. Since 1995 the applicant has been living with Mr L. da L., a Netherlands national. On the basis of this relationship she was granted a residence permit on 4 September 1995. On 28 November 1996 the applicant lodged a request for a provisional residence visa (machtiging tot voorlopig verblijf) on behalf of her daughters Deisy and Dercilene. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights. The applicant submitted that she had visited the girls in the summer of 1996, together with her partner Mr L. da L. On this occasion she had had to conclude that her mother was physically and mentally no longer capable of looking after Deisy and Dercilene: the girls were being left to their own devices and were, even by local standards, living in unfavourable conditions. The applicant referred to a doctor’s declaration according to which her mother was suffering from a chronic illness and was indeed incapable of looking after children. She further submitted that she had no other relatives living in the Cape Verde Islands. The requested provisional residence visa was refused by the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) on 21 April 1997. The Minister was of the opinion that from 1993 Deisy and Dercilene no longer actually belonged to the applicant’s family unit (gezin). It was further held that the refusal of the visa did not constitute a breach of Article 8 of the Convention. The applicant’s objection against this decision, filed on her behalf by a lawyer, was declared inadmissible by the Minister on 1 August 1997 as no grounds for the objection had been submitted. Although possible, no appeal was lodged against this decision. On 8 October 1997 the applicant lodged a new request for a provisional residence visa on behalf of her daughters. She argued that the close family ties (gezinsband) between her daughters and herself had always continued to exist: she had remained in contact with them, both through letters and through telephone conversations, and she had also contributed financially and materially to her daughters’ care and upbringing. The reason she had not asked to be reunited with her children soon after her arrival in the Netherlands was due to the fact that her then partner, Mr V.V., had informed her that this would not be possible. The applicant submitted another medical declaration, dated 29 August 1997, according to which her mother was suffering from advanced spondylarthritis of the spine as a result of which she was incapable of caring for minor children. Considering that the new application for a provisional residence visa contained neither new facts nor new circumstances, the Minister of Foreign Affairs rejected it on 11 December 1997 with reference to his previous decisions. The applicant and Mr L. da L. were married on 27 July 1998. On 24 September 1998 a hearing on the applicant’s objection against the Minister’s decision was held before an official committee (ambtelijke commissie). At this hearing, the applicant stated that when she had visited her daughters in 1996, they had only just left hospital where they had been admitted after their grandmother had used massage oil in the preparation of food – this had happened because the applicant’s mother was illiterate. She further clarified that it had always been her intention to send for her children as soon as she had a residence permit. Her first partner in the Netherlands had not wanted her to bring the girls to the Netherlands, in addition to telling her that it would not be possible. The applicant’s objection was rejected on 20 October 1998. The Minister held that children who had stayed behind in the country of origin could only then be considered as continuing to belong to their parent’s family unit if that parent had attempted as soon as reasonably possible to have the children join him or her by means of an application for family reunion. The applicant had not provided a plausible explanation as to why she had waited until 28 November 1996 before applying for a provisional residence visa. It had further not been established that the applicant had made a substantial contribution to the cost of her daughters’ care and upbringing. Neither had it appeared that the applicant – who had only once visited her children since moving to the Netherlands – had continued to exercise parental authority or that she had taken any important decisions relating to their upbringing. For these reasons, the Minister concluded that the children had become integrated in the family unit of their grandmother. The refusal of a provisional residence visa was not contrary to Article 8 of the Convention: there was no interference with the right to respect for family life since the applicant’s children were not deprived of a residence permit which had enabled them to exercise family life in the Netherlands, and neither was the State under a positive obligation to grant the girls residence so as to enable the applicant to develop family life with them in the Netherlands. On 5 March 1999 the applicant obtained Netherlands nationality. The applicant appealed the Minister’s decision of 20 October 1998 to the Regional Court (arrondissementsrechtbank) of The Hague sitting in Haarlem. Following a hearing, the Regional Court rejected the appeal on 2 June 1999. It agreed with the Minister that the close family ties between the applicant and her daughters had ceased to exist. According to the Regional Court, the period of time between the applicant’s departure from the Cape Verde Islands and the first application for a provisional residence visa for her daughters had been of such duration that it could not be said that the situation of the children living with their grandmother was only temporary. The fact that she had not applied for family reunion sooner because her first partner in the Netherlands was opposed to it, indicated that the applicant had let the relationship with Mr V.V. prevail over her ties with her daughters. The Regional Court also found that the refusal of a provisional residence visa was not contrary to Article 8 of the Convention, having regard to the fact that it had not appeared that there were any objective impediments preventing the applicant and her daughters from continuing their family life as they had already been doing for a considerable number of years. In this context it attached relevance to the fact that the manner in which the applicant and her children exercised family life was due to the applicant’s own choice to leave her daughters behind in the Cape Verde Islands. Since moving to the Netherlands, the applicant has regularly transferred money to her mother in the Cape Verde Islands in order to pay for her daughters’ upbringing. In addition, once every four months she has sent goods such as clothing, shoes, food, materials for use in school and, on one occasion, glasses. She has kept in contact with her daughters by telephone and, less frequently, by mail. 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. 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. The Government pursue a restrictive immigration policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds. The admission policy for family reunion purposes was laid down in Chapter B1 of the Aliens Circular 1994 (“the Circular” - Vreemdelingencirculaire 1994). 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. The burden of proving that the close family ties between parent and child have not been severed rests with the parent residing in the Netherlands. The longer the parent and child have been separated, the heavier the burden of proof on the person in the Netherlands becomes. It is then incumbent on the parent to present sound reasons as to why he or she did not seek to bring the child to the Netherlands sooner.