EUROPEAN COMMISSION OF HUMAN RIGHTS
 
 SECOND CHAMBER
 
 Application No. 21702/93
 
 Salah Ahmut and Souffiane Ahmut
 
 against
 
  the Netherlands
 
 REPORT OF THE COMMISSION
 
 (adopted on 17 May 1995)
 
 TABLE OF CONTENTS
 
 Page
 
I. INTRODUCTION
 (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1
 
 A. The application
 (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
 
 B. The proceedings
 (paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1
 
 C. The present Report
 (paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2
 
II. ESTABLISHMENT OF THE FACTS
 (paras. 16-37). . . . . . . . . . . . . . . . . . . . . . . . 3
 
 A. The particular circumstances of the case
 (paras. 16-33) . . . . . . . . . . . . . . . . . . . . . 3
 
 B. Relevant domestic law
 (paras. 34-37) . . . . . . . . . . . . . . . . . . . . . 5
 
III. OPINION OF THE COMMISSION
 (paras. 38-55). . . . . . . . . . . . . . . . . . . . . . . . 6
 
 A. Complaint declared admissible
 (para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6
 
 B. Point at issue
 (para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6
 
  C. As regards Article 8 of the Convention
 (paras. 40-54) . . . . . . . . . . . . . . . . . . . . . 6
 
 CONCLUSION
 (para. 55) . . . . . . . . . . . . . . . . . . . . . . . 8
 
DISSENTING OPINION OF MM. G. JÖRUNDSSON, S. TRECHSEL,
J.-C. SOYER AND L. LOUCAIDES. . . . . . . . . . . . . . . . . . . . 9
 
APPENDIX: DECISION OF THE COMMISSION AS TO THE
 ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .10
 
I. INTRODUCTION
 
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
 
A. The application
 
2. The first applicant holds both Moroccan and Dutch nationality.
He was born in 1945 and resides in Rotterdam. The second applicant is
a Moroccan citizen, born on 27 November 1980 and resident in Rotterdam.
The applicants are father and son. They were represented before the
Commission by Mr. J.H.M. Nijhuis, a lawyer practising in Rotterdam.
 
3. The application is directed against the Netherlands. The
respondent Government were represented by their Agent, Mr. H.A.M. von
Hebel of the Netherlands Ministry of Foreign Affairs.
 
4. The case concerns the refusal of the Netherlands authorities to
grant the second applicant a residence permit. The applicants invoke
Article 8 of the Convention.
 
B. The proceedings
 
5. The application was introduced on 23 February 1993 and registered
on 22 April 1993.
 
6. On 1 December 1993, the Commission (Second Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on its admissibility and
merits.
 
7. The Government's observations were submitted on 21 February 1994.
The applicants replied on 14 April 1994.
 
8. On 12 October 1994, the Commission declared the application
admissible in respect of the alleged violation of the applicants' right
to respect for their family life. It declared the remainder of the
application inadmissible.
 
9. The text of the Commission's decision on admissibility was sent
to the parties on 7 November 1994 and they were invited to submit such
further information or observations on the merits as they wished.
 
10.  After declaring the case partly admissible, the Commission,
acting in accordance with Article 28 para. 1 (b) of the Convention,
also placed itself at the disposal of the parties with a view to
securing a friendly settlement. In the light of the parties' reaction,
the Commission now finds that there is no basis on which such a
settlement can be effected.
 
C. The present Report
 
11. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
 
 Mr. H. DANELIUS, President
 Mrs. G.H. THUNE
 MM. G. JÖRUNDSSON
 S. TRECHSEL
 J.-C. SOYER
 H.G. SCHERMERS
 F. MARTINEZ
 L. LOUCAIDES
 J.-C. GEUS
 M.A. NOWICKI
 I. CABRAL BARRETO
 J. MUCHA
 D. SVÁBY
 
12. The text of this Report was adopted on 17 May 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
 
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
 
 (i) to establish the facts, and
 
 (ii) to state an opinion as to whether the facts found disclose
 a breach by the State concerned of its obligations under
 the Convention.
 
14. The Commission's decision on the admissibility of the application
is attached hereto as an Appendix.
 
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
 
II. ESTABLISHMENT OF THE FACTS
 
A. The particular circumstances of the case
 
16. Out of the first applicant's first marriage, five children were
born in 1969, 1970, 1971, 1972 and 1980. The second applicant,
Souffiane Ahmut, is the youngest of the five children.
 
17. The first applicant's first marriage was dissolved in 1984. The
children born out of the marriage remained with their mother in
Morocco.
 
18. In September 1986, the first applicant went to the Netherlands
where, on 3 November 1986, he married a Dutch national, who already had
three children. On the basis of this marriage he obtained a Dutch
residence permit. On 22 February 1990, he obtained Dutch nationality.
 
19. On 26 March 1987, the first applicant's first wife died. The
children were subsequently taken into the household of the first
applicant's mother in Tanger. The first applicant supported his
children financially and they saw each other during visits. According
to the applicants, the first applicant's mother can no longer continue
to care for her grandchildren in view of her poor state of health.
 
20. In February 1990, the first applicant separated from his second
wife. Their divorce was pronounced on 21 December 1990.
 
 
21. On 26 March 1990, the second applicant and his sister Souad
entered the Netherlands without having the required authorisation for
entry (machtiging tot voorlopig verblijf). On 3 May 1990, the first
applicant requested a residence permit (vergunning tot verblijf) on
behalf of his son on the basis of family reunification.
 
22. The request was rejected by the Deputy Minister of Justice on
26 June 1990. He noted that the second applicant had entered the
Netherlands without the required authorisation for entry. As to the
request for a residence permit on the basis of family reunification,
the Deputy Minister of Justice considered that the second applicant did
not fulfil the conditions of Section 11 para. 5 of the Aliens Act
(Vreemdelingenwet) and the applicable policy rules laid down in the
Circular on Aliens (Vreemdelingencirculaire) because he did not in fact
belong to his father's family in the Netherlands, as, following his
parents' divorce, he had remained with his mother and had subsequently
become a member of his paternal grandmother's family in Morocco. It had
furthermore not been shown in which way the first applicant had
contributed either financially or otherwise to the upbringing of the
second applicant and it had not been substantiated that the paternal
grandmother could no longer care for him.
 
23. As regards Article 8 of the Convention, the Deputy Minister of
Justice did not find that the link between the applicants could be
regarded as constituting family life within the meaning of this
provision. He considered that, if there were family life, and if the
personal interests of the applicants were weighed against the general
interest, an interference with the rights under Article 8 para. 1 of
the Convention was justified under para. 2 of this provision as being
necessary in a democratic society in the interests of the economic
well-being of the country. The Deputy Minister of Justice finally held
that there were no other compelling humanitarian reasons on the basis
of which a residence permit should be granted to the second applicant.
 
24. The decision of 26 June 1990 was served on the applicants on
22 October 1990.
 
25. On 26 October 1990, two other children born out of the first
applicant's first marriage obtained permission to reside in the
Netherlands for initially one year to study at the Technical University
of Delft.
 
26. On 13 November 1990, the first applicant requested the Deputy
Minister of Justice to review (herziening) the decision of
26 June 1990. On 4 January 1991, the request was granted suspensive
effect in respect of the proposed expulsion of the second applicant.
 
27. Since the Deputy Minister of Justice had failed to take a
decision on the request for review within the prescribed period of
three months, the first applicant, on behalf of the second applicant,
filed an appeal on 6 March 1991 to the Judicial Division of the Council
of State (Afdeling Rechtspraak van de Raad van State) against the
Deputy Minister's presumed rejection (fictieve weigering) of the
request for a review.
 
28. On 11 March 1991, the first applicant married a Moroccan
national, who, on the basis of that marriage, obtained a Dutch
residence permit.
 
29. On 20 March 1991, a hearing took place before the Advisory
Commission for Aliens Affairs (Adviescommissie voor Vreemdelingenzaken)
on the request of 13 November 1990 for a review. The Commission heard
the first applicant in the presence of his lawyer; the second applicant
was present, but no questions were put to him. At the hearing the first
applicant stated, inter alia, that he had no proof of his divorce from
his first wife since one has to pay for such a document, that his
second wife had always refused to take the children born out of his
first marriage into their household, that he never applied for any
children's allowance (kinderbijslag) in the Netherlands but that he had
sent or taken money to Morocco for the maintenance of his children on
a regular basis, that he has two brothers living in Morocco, and that
his eldest son from his first marriage, Hamid, lives on his own in
Morocco and works as a merchant.
 
30. The applicant submitted a copy of his first wife's death
certificate to the Advisory Commission for Aliens Affairs. He also
submitted a medical certificate dated 7 November 1990, which stated
that the applicant's mother was 80 years old, that she suffered from
kidney problems and dyspnea, and that she was an out-patient at a
hospital in Tanger.
 
31. After having considered the statements and the documents
submitted, the Advisory Commission, unanimously, decided on
20 March 1991 to advise the Deputy Minister of Justice to reject the
request for a review. However, because in the meantime the applicant
had appealed to the Judicial Division of the Council of State, the
Deputy Minister did not determine the request for a review.
 
32. Following a hearing on 10 August 1992, the Judicial Division of
the Council of State rejected the appeal on 24 August 1992. It held
that the second applicant did not meet the requirements for a residence
permit for family reunification as laid down in Chapter B19 of the
Circular on Aliens, as he could not be considered as a member of his
father's family in the Netherlands. It further held that it had not
appeared or been argued that his older brother Hamid or his two uncles
in Morocco could not care for him. Moreover, the second applicant could
return to Morocco together with his sister Souad, who could equally
provide him with care in Morocco. The Judicial Division of the Council
of State further stated that it had not appeared or been argued that
it was impossible for his father to continue to provide for him
financially.
 
33.  Under Article 8 of the Convention the Judicial Division found no
interference with the applicants' rights since the case did not concern
the revocation of a residence permit which had allowed them to enjoy
family life in the Netherlands. The Judicial Division considered that
the Dutch authorities, after weighing the personal interests of the
applicants against the general interest of the Netherlands, did not
have a positive obligation under Article 8 of the Convention to grant
the second applicant a residence permit.
 
B. Relevant domestic law
 
34. The rules on entry and residence in the Netherlands and the
grounds on which aliens may be expelled are laid down in the Aliens
Act, the regulations implementing this Act, and the Circular on Aliens.
The Circular on Aliens is a compilation of binding policy rules and
directives drawn up and published by the Dutch Ministry of Justice.
 
35. Section 11 para. 5 of the Aliens Act states, inter alia, that a
residence permit can be refused in the public interest. On the basis
of this provision, the Dutch authorities pursue a restrictive
immigration policy for the purposes of regulating the labour market and
restricting immigration in a densely populated country. As a rule, a
residence permit is only granted if an international obligation must
be respected, if the alien's presence in the Netherlands serves an
essential Dutch interest, or if there are compelling humanitarian
reasons.
 
36. Family reunification, which is dealt with in Chapter B19 of the
Circular on Aliens, is one of the grounds on which a residence permit
can be granted. Provided that a number of conditions concerning, inter
alia, sufficient means of existence, health, and public order, have
been fulfilled, a residence permit on the grounds of family
reunification can be granted to, inter alia, spouses of Dutch nationals
or aliens who lawfully reside in the Netherlands, and to their minor
children regardless of whether they were born in or out of wedlock,
provided that these children in fact belong to their family.
 
37. If an alien is not entitled to a residence permit on the basis
of the law and the policy, the authorities will always consider whether
there are nonetheless compelling humanitarian reasons on the basis of
which an alien should be granted residence in the Netherlands.
 
III. OPINION OF THE COMMISSION
 
A. Complaint declared admissible
 
38. The Commission has declared admissible the applicants' complaint
that the Netherlands authorities' refusal to grant the second applicant
a residence permit in order to take up residence with the first
applicant constituted an unjustified interference with their family
life within the meaning of Article 8 (Art. 8) of the Convention.
 
B. Point at issue
 
39. The point at issue is accordingly whether there has been a
violation of Article 8 (Art. 8) of the Convention as regards both
applicants.
 
C. As regards Article 8 (Art. 8) of the Convention
 
40. Article 8 of the Convention, insofar as relevant, reads as
follows:
 
 "1. Everyone has the right to respect for his ... family
 life ....
 
 2. There shall be no interference by a public authority
 with the exercise of this right except such as is in
 accordance with the law and is necessary in a democratic
 society in the interests of ... the economic well-being of
 the country ...."
 
41. The applicants submit that there is family life within the
meaning of Article 8 para. 1 (Art. 8-1) between them and that the
refusal to grant a residence permit to the second applicant constitutes
an interference with their family life. In this respect they argue that
the second applicant cannot return to his grandmother, who is no longer
able to care for him, that other family members are not in the position
to care for him and that, apart from his sister Souad, none of his
brothers was living in the household of the grandmother when he left
Morocco in March 1990. According to the applicants a continuation of
the family life as it had existed prior to March 1990 was no longer
possible. The applicants submit that the interference is not justified
under Article 8 para. 2 (Art. 8-2) of the Convention.
 
42. The Government submit in the first place that the bond between
the applicants is not close enough to be described as family life
within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.
Subsidiarily the Government submit that even if there were family life
within the meaning of Article 8 (Art. 8) between the applicants, the
refusal to grant a residence permit to the second applicant constitutes
no interference with their family life, because the family life as it
had existed prior to March 1990, i.e. occasional contacts and financial
support, can be continued when the second applicant resides in Morocco.
Finally the Government submit that, should the Commission be of the
opinion that the refusal to grant a residence permit to the second
applicant constitutes a violation of Article 8 para. 1 (Art. 8-1), the
interference is justified under Article 8 para. 2 (Art. 8-2) of the
Convention, because the interests of the applicants do not outweigh the
public interest. They submit that the second applicant has very close
relatives in Morocco (in particular his eldest brother), that he can
live with his sister and that the first applicant can continue to make
financial contributions.
 
43. The Commission recalls that the Convention does not guarantee a
right to enter or reside in a particular country. However, in view of
the right to respect for family life ensured by Article 8 (Art. 8) of
the Convention, the exclusion of a person from a country in which his
close relatives reside may raise an issue under this provision of the
Convention (cf. No. 11274/84, Dec. 1.7.85, D.R. 43, p. 216).
 
44. The Commission finds that the links between the applicants may
be regarded as constituting family life within the meaning of Article 8
para. 1 (Art. 8-1) of the Convention.
 
45. Consequently, the refusal of a residence permit to the second
applicant must be considered as an interference with their right to
respect for their family life (cf. No. 13654/88, Dec. 8.9.88, D.R. 57,
p. 287).
 
46. The question therefore arises whether this interference was
justified under Article 8 para. 2 (Art. 8-2) of the Convention, i.e.,
whether it was "in accordance with the law" and could reasonably be
considered as necessary in a democratic society for one or more of the
legitimate aims referred to in this provision.
 
47. The Commission notes that the decision to refuse the second
applicant a residence permit was based on and taken in accordance with
Section 11 para. 5 of the Aliens Act and Chapter B19 of the Circular
on Aliens, which lays down special conditions for the granting of
residence permits on the grounds of family reunification.
 
48. The Commission further notes that the Dutch immigration policy
establishes special conditions for the purpose of regulating the labour
market, and generally of restricting immigration in a densely populated
country. Thus the legitimate aim pursued is the preservation of the
country's economic well-being within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention (cf. Eur. Court H.R., Berrehab judgment
of 21 June 1988, Series A no. 138, p. 15, para. 26).
 
49. Regarding the necessity of the interference in a democratic
society, the Commission recalls that the Contracting States have a
margin of appreciation in the field of immigration policy. However,
"necessity" implies that the interference must correspond to a pressing
social need and, in particular, that it must be proportionate to the
legitimate aim pursued (cf. Berrehab judgment, loc. cit. p. 16,
para. 28).
 
50. The Commission observes that the second applicant is a minor. At
present he is fourteen years old.
 
51. The Commission further observes that the second applicant's
mother died in 1987 and that his father, the first applicant, is his
closest relative. The Dutch authorities' refusal to grant the second
applicant a residence permit in order for him to take up residence with
his father will most likely lead to his expulsion from the Netherlands.
If the second applicant is expelled from the Netherlands there will be
a risk that the ties between the applicants will be weakened or broken.
 
52. Furthermore, the parties disagree about whether the second
applicant will have a proper place to live and whether he will receive
proper care in Morocco. It is true that the second applicant has family
members living in Morocco, but it is not clear to what extent they are
able or willing to provide the second applicant with the required care.
As regards the second applicant's grandmother, the Commission,
recalling that she is 85 years old according to the medical certificate
(see para. 30 above), finds that it is not unreasonable to assume that
she will not be able to care for the second applicant in the way she
did prior to his departure to the Netherlands in March 1990.
 
53. The Commission further observes that the second applicant entered
the Netherlands on 26 March 1990 and that apparently he has been living
there since that date. This is, at present, a period of more than five
years. It is true that the Dutch authorities never gave their approval
to the second applicant's residence in the Netherlands, but they did
not take action to expel him.
 
54. In these circumstances the Commission finds that the balance that
was struck between the interests of the parties involved was not fair.
The interference was therefore not necessary in a democratic society
as being disproportionate to the legitimate aim pursued. As a result,
the interference was not justified under Article 8 para. 2 (Art. 8-2)
of the Convention.
 
 CONCLUSION
 
55. The Commission concludes, by 9 votes to 4, that in the present
case there has been a violation of Article 8 (Art. 8) of the Convention.
 
 
Secretary to the Second Chamber President of the Second Chamber
 
 (M.-T. SCHOEPFER) (H. DANELIUS)
 
 (Or. English)
 
 DISSENTING OPINION OF
  MM. G. JÖRUNDSSON, S. TRECHSEL, J.-C. SOYER AND L. LOUCAIDES
 
 In the present case, contrary to the majority, we come to the
conclusion that there has been no violation of Article 8 for the
following reasons.
 
 We note that the second applicant entered the Netherlands without
the required authorisation. Prior to his arrival in the Netherlands in
March 1990, he had not lived with his father since 1984, whilst the
latter had remarried and started a new family in the Netherlands twice.
We further note that the second applicant has substantial links with
Morocco, where he was born, where he has lived until March 1990, and
where in any case his paternal grandmother, two uncles and an adult
brother live. It has not been shown that these family members are
unable to provide the second applicant, who at present is fourteen
years old, with the required care. Furthermore, there is nothing in the
file indicating that his father could not continue to support his son
financially. The ties between the applicants can be maintained, given
that before March 1990 the first applicant went to Morocco regularly
to visit, inter alia, the second applicant.
 
 In these circumstances we consider that respect for the
applicants' family life does not outweigh valid considerations relating
to Dutch immigration policy and that a right balance has been struck
between the interests involved. We therefore conclude that there has
been no violation of Article 8.