European Court of Human Rights

THIRD SECTION

DECISION

Application no. 8437/04
by Gulistan Ahmed SAID and Avin Fouad KARIM
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 30 September 2008 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 9 March 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mrs Gulistan Ahmed Said, is a Netherlands national, who was born in 1964 and lives in Amsterdam. Her daughter, Avin Fouad Karim, the second applicant (hereinafter referred to as “Avin”), is an Iraqi national, who was born in 1992, and lives in Iraq. They were represented before the Court by Mr M. Berg, a lawyer practising in Amsterdam. The Dutch Government (“the Government”) were represented by their Agents, Ms J. Schukking and Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1996 the first applicant's husband – and Avin's father – fled from Iraq to the Netherlands. On 15 April 1996 he was recognised as a refugee. In 1997 the first applicant and her daughter Lana – Avin's twin sister – were granted a provisional residence visa (machtiging tot voorlopig verblijf) and joined Mr Fouad Karim in the Netherlands. Avin, who had also been granted a provisional residence visa, did not travel with her mother and sister to the Netherlands but stayed in Iraq in the care of her grandparents. Avin had been living with her grandmother since she was two months old and used to be co-parented by her mother and grandmother. Avin's parents decided that Avin should stay in Iraq. At that time, Avin herself preferred to do so, given her strong ties with her grandmother. Moreover, as Avin had been regularly ill, her parents considered it too dangerous, also in light of the political situation in North Iraq where they were living, to make her undertake the journey. After their arrival in the Netherlands, Avin's parents kept in touch with her on a regular basis; they communicated with her by correspondence and telephone and transferred money to Iraq on her behalf.

The first applicant was granted a permanent residence permit for the purposes of asylum in 1997. She obtained Netherlands nationality in 2001.

In 2001 Avin's grandfather died. Avin's grandmother, born in 1932, was no longer able to provide for Avin's care. There were no other family members left in Iraq who could take care of Avin.

On 12 May 2002 the first applicant applied to the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) for a provisional residence visa on behalf of Avin. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit.

On 16 May 2002 the Minister of Foreign Affairs rejected the applicant's request, considering inter alia that the first applicant did not comply with the minimum income requirements under the applicable immigration rules.

The Minister also rejected the first applicant's objection (bezwaar) against this refusal on 24 October 2002. Given that Avin had been left in her grandparents' care when she was two months old, it was held that she had never actually belonged to the family unit of her parents (heeft nimmer feitelijk tot het gezin behoord). Although the Minister acknowledged that, Avin's father having been granted asylum, an objective obstacle did exist to family life within the meaning of Article 8 of the Convention being exercised in Iraq, he considered that this fact alone was not necessarily decisive. Being of the opinion that neither the first applicant nor her husband had demonstrated that they had made serious efforts to find work, the Minister concluded that the general interest outweighed the interests of the applicants.

The first applicant's subsequent appeal to the Regional Court (rechtbank) of The Hague was rejected on 22 May 2003, which decision was upheld on 25 September 2003 by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State).

On 21 December 2007, following the notification of the present application to them, the Government informed the Court that the applicants were entitled to lodge a fresh request for a residence permit on behalf of Avin, which request would subsequently be granted. A positive decision on the request for advice on the issuance of a provisional residence visa was taken by the Minister of Foreign Affairs on 18 June 2008.

In reply to the question whether, in view of this development, the applicants wished to pursue the application, their representative informed the Court on 28 August 2008 that they wanted to withdraw the case.

COMPLAINT

The applicants complained that the Netherlands authorities' refusal to grant Avin a provisional residence visa was contrary to their rights under Article 8 of the Convention. In their view, the acknowledged existence of an objective obstacle to family life being exercised in Iraq should have led to a positive obligation for the Netherlands to admit Avin for the purposes of family reunion.

THE LAW

On 28 August 2008 the applicants' representative informed the Court that the applicants wanted to withdraw the application.

In these circumstances, and having regard to Article 37 § 1 (a and b) of the Convention, the Court is of the opinion that the applicants may be regarded as no longer wishing to pursue their application and the matter at issue as having been resolved. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Santiago Quesada Josep Casadevall
Registrar President